Tribunal Numbers: 2022/7009, 2023/0354, 2024/4516

From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

1. Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:

(i) Within 14 days of this decision, Mr Tsao's statement of participant supports specifies the following supports as reasonable and necessary:

• The works contained in quotation HCR-Q00023269 dated 3 November 2023[1] and in quotation HCR-Q0002329-2 dated 7 August 2024[2] being in the total sum of $46,267.30;
• The works contained in quotation HCR-Q00023272-4 dated 13 September 2024 in the sum of $31,902.00;[3]
• 1,111 hours per year of support worker assistance for personal and domestic activities;
• Funding for the annual cleaning of the gutters in Mr Tsao's house.

1. The date by which the Agency must reassess Mr Tsao's plan is to be 12 months after the date on which the supports in (1) above are included in Mr Tsao's statement of participant supports;
2. All other supports in Mr Tsao's existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date; and
3. Pursuant to subsection 44(1)(b)(i) of the National Disability Insurance Scheme Act 2013 (Cth), Mr Tsao's plan is to remain 'plan managed'.

1. Mr Tsao's application for reinstatement of application 2023/0354 is refused.

Visual impairment - reasonable and necessary supports - consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth)- home modifications - bathroom exhaust fan - lawn turf - guide dog - guide dog maintenance and insurance - pet expenses - support worker assistance - support coordination - physiotherapy, occupational therapy, speech therapy, psychiatry - church attendance - gym membership - All Eyes Cam Pro - fingernail and toenail cutting - podiatry - lawn mowing - garden maintenance - gutter cleaning - eye specialist - blind group gatherings - plan management - decision set aside and remitted to the Respondent

Application for reinstatement of application - decision refused

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) (Cth)

Administrative Review Tribunal Act 2024 (Cth) s102

National Disability Insurance Scheme Act 2013 (Cth) s3, s4, s10, s33, s34, s35, s99, s103

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)

G v Minister for Immigration and Border Protection [2018] FCA 1229

Minister for Home Affairs v G [2019] FCAFC 79

McGarrigle v National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Agency v WRMF [2020] FCAFC 79

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60

XYZ v Commonwealth [2006] HCA25; [2006] HCA 25; (2006) 227 CLR 532

Smith v National Disability Insurance Agency [2023] AATA 1616

NDIS - Operational Guidelines - Reasonable and necessary supports, as of 6 October 2023

NDIS - Operational Guidelines - Assistance animals including dog guides, 20 June 2022

1. Mr Tsao, a 61-year-old male, is a participant of the National Disability Insurance Scheme ('the scheme').
2. Mr Tsao became a participant in the scheme on the basis of meeting the access requirements due to a visual impairment, which included blindness.[4]
3. Mr Tsao's visual impairment arises as a consequence of the following diagnoses:
   • primary open angle glaucoma;
   • rod-cone retinal dystrophy; and
   • bilateral pseudophakia.
4. Mr Tsao has filed three applications with the Tribunal. These applications will be referred to subsequently. However, in summary, Mr Tsao is seeking:
   • an increase in the funding of his supports;
   • that his NDIS plan be 'self-managed'; and
   • that application number 2023/0354 be reinstated.
5. At the hearing Mr Tsao was not legally represented. The National Disability Insurance Agency ('the Agency') was represented by Mr Joshua Lessing of Counsel, instructed by Sparke Helmore Lawyers.

1. The issues before the Tribunal are whether;
   • the supports sought in application numbers 2022/7009 and 2024/4516 are 'reasonable and necessary' pursuant to section 34 of the National Disability Insurance Scheme Act 2013 ('NDIS Act') and should be included in his statement of participant supports ('SOPS') made pursuant to the scheme;
   • application 2023/0354, which was dismissed on 15 May 2023, should be reinstated;
   • Mr Tsao's NDIS plan should be 'self-managed'.

1. This application to the Tribunal was made on 29 August 2022.[5]
2. In this application Mr Tsao seeks the following supports:
   • Toilet inside house and inside bathroom with electric bidet;
   • Bathroom inside his house;
   • Electric bidet toilet inside his house with a manual switch;
   • New bathroom vanity unit next to toilet;
   • Open bathroom;
   • Sliding bathroom doors (rather than swinging) and larger bathroom door space;
   • Exhaust fan inside bathroom;
   • Open shower with shower stool, movable and adjustable shower head;
   • Soap dispenser with manual switch, including shampoo/conditioner dispenser;
   • Wall to be tiled in contrasting colours;
   • Non-slip floor tiles in bathroom in contrasting colours;
   • Horizontal and vertical grab rail in shower;
   • Vertical handrail inside house;
   • Strong LED lights in all areas of the house including bedroom with sensor function switch;
   • Floor light;
   • Removal of big cabinet in kitchen and replacement with small cabinet to create more movable space;
   • Change of kitchen vinyl flooring to mixed colour floor tiles;
   • Levelling of uneven surface ground within house;
   • Back door changed to the same level as the house/outdoor concrete slabs;
   • Levelling of carport;
   • Levelling of concrete slabs outside of the house; and
   • Front garden lawn surface levelled with new lawn.

1. This application to the Tribunal was made on 6 January 2023.[6]
2. In this application Mr Tsao sought the review of a decision by the Agency not to conduct a re-assessment of his plan which had been approved for the period 18 July 2002 to 18 July 2023.[7]

1. This application to the Tribunal was made on 27 June 2024.[8]
2. In this application Mr Tsao seeks the following supports:
   • A replacement guide dog;
   • Guide dog funding of $6,500;
   • 42 hours of support coordination;
   • Guide dog insurance funding of $3,000;
   • Support worker hours at 40 hours per week;
   • Increased physiotherapy;
   • 36 hours per year of occupational therapy;
   • Monthly speech therapy for dyslexia;
   • Funding for psychiatry;
   • Funding to go to church once a week;
   • A yearly gym membership;
   • Monthly podiatry to cut toenails and inspect feet;
   • Fingernails to be cut fortnightly;
   • All Eyes Cam Pro of $8,000;
   • Adaptive report of $3,000;
   • Fortnightly mowing and gardening maintenance;
   • Yearly gutter cleaning;
   • Funding to visit eye specialist;
   • Monthly blind group social gathering.

1. At the commencement of the hearing the Agency advised the Tribunal that certain concessions had been made in relation to application 2022/7009.
2. In this regard, the Agency and Mr Tsao have agreed that the following supports are 'reasonable and necessary' pursuant to subsection 34(1) of the NDIS Act:
   • The works contained in quotation HCR-Q00023269 dated 3 November 2023[9] and in quotation HCR-Q0002329-2 dated 7 August 2024[10] being in the total sum of $46,267.30;
   • The works contained in quotation HCR-Q00023272-4 dated 13 September 2024 in the sum of $31,902.00.[11]

1. In respect of application 2022/7009, the following supports remain in dispute:

(i) Exhaust fan inside bathroom;

(ii) Front garden lawn surface levelled with replacement of new lawn.

1. In respect of application 2024/4516, the following supports remain in dispute:

(iii) A replacement guide dog;

(iv) Guide dog funding of $6,500;

(v) Guide dog insurance funding;

(vi) 42 hours of support coordination;

(vii) Support worker hours at 40 hours per week;

(viii) Increased funding for physiotherapy;

(ix) 36 hours per year of occupational therapy;

(x) Monthly speech therapy;

(xi) Psychiatry;

(xii) Funding to go to church once a week;

(xiii) A yearly gym membership;

(xiv) Monthly podiatry to cut toenails and inspect feet;

(xv) Fingernails to be cut fortnightly;

(xvi) All Eyes Cam Pro of $8,000;

(xvii) Adaptive report of $3,000;

(xviii) Fortnightly mowing and garden maintenance;

(xix) Yearly gutter cleaning;

(xx) Funding to visit eye specialist;

(xxi) Monthly blind group social gathering.

1. The Agency also contends that Mr Tsao's NDIS plan should not be 'self-managed', pursuant to subsection 43(1)(a) and subsection 43(2) of the NDIS Act. The Agency submits that self-management of Mr Tsao's plan would present an unreasonable risk to him, pursuant to subsection 44(1)(b)(i) of the NDIS Act.
2. In respect of application 2023/0354, the Agency contends that this application should not be reinstated pursuant to section 102 of the ART Act. Further, it contends that if reinstatement is ordered by the Tribunal, then the following supports are not reasonable and necessary and remain in dispute:
   • Dog food, dog grooming, vet, technology - $2,737.94;
   • Mowing and garden maintenance - $280;

• Support worker fees for Yuk-Ling Leung - $28,736.49; and
• Support worker fees for Tao Wang - $10,659.

National Disability Insurance Scheme Act 2013 (Cth)

1. Section 34 of the NDIS Act identifies what constitutes a 'reasonable and necessary' support under the scheme.
2. At the time of the commencement of the hearing, section 34 of the NDIS Act provided as follows:

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:

(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 most appropriately funded or provided through the National Disability Insurance Scheme, 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:

(i) as part of a universal service obligation; or

(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

(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)(a) to (f).

1. 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_._
2. These amendments in respect of the requirements pursuant to section 34 of the NDIS Act will apply to this review.[12]
3. Section 34 of the NDIS Act, as amended, provides as follows (emphasis of amendments added by the Tribunal):

(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 section 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.

(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 the 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).

24. Subsection 34(1) of the NDIS Act is cumulative and therefore all the criteria must be met.

1. Subsection 34(1)(aa) of the NDIS Act, which is an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of Mr Tsao which arise from the impairment/s for which he met the disability requirements.
2. Subsection 34(1)(f) of the NDIS Act is also an amendment; however, it is a replacement of an 'old provision' with a 'new provision'.
3. This new provision of subsection 34(1)(f) of the NDIS Act requires that the support is an 'NDIS support'.
4. Also relevant to this review is the inclusion of section 10 to the NDIS Act, made pursuant to the Amending Act. Section 10 of the NDIS Act provides a definition of what constitutes an 'NDIS Support' for the purposes of subsection 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides as follows:

Supports that are NDIS supports

(1) Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants that includes the person.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(2) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

(a) for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(3) National Disability Insurance Scheme rules may declare a support for the purposes of subsection (1) only if at least one of the following applies:

(a) the declaration of the support implements Australia's obligations under:

(i) the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

(ii) any other agreement with one or more other countries;

(b) the declaration of the support enables the provision of sickness benefits.

Note: For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Supports that are not NDIS supports

(4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

(a) participants or prospective participants generally; or

(b) a class of participants or prospective participants.

Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

(a) for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or

(b) for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(6) The CEO may determine, in writing, that a support is taken to not be declared under subsection (4) in relation to a participant if:

(a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

(b) the support would, apart from subsection (4), be an NDIS support for the participant; and

(c) the participant applies to the CEO in accordance with subsection (7) for the determination; and

(d) the CEO is satisfied that:

(i) the support would replace one or more other supports that are NDIS supports for the participant; and

(ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

(iii) the support would provide the same or a better outcome for the participant than the supports it would replace; and

(iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.

Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

(a) be in the form (if any) approved by the CEO; and

(b) include any information, and be accompanied by any documents, required by the CEO; and

(c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

(8) The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.

(9) A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

(a) sexual services; or

(b) alcohol; or

(c) drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

1. Subsection 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether the criteria under subsection 34(1) are met in respect of a requested support.
2. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the:
   • National Disability Insurance Scheme (Supports for Participants) Rules 2013 ('Supports Rules'); and
   • National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 ('Transitional Rules').
3. Rules 3 and 5 of the Supports Rules relate specifically to subsections 34(1)(c)-(e) of the NDIS Act and provide as follows:

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 refereed literature and any consensus of expert opinion;

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

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

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

Reasonable family, carer and other support

3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

(a) for a participant who is a child:

...

(b) for other participants:

(i) the extent of any risks to the wellbeing of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community; and

(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

(A) the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and

(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and

(iii) the extent to which informal supports contribute to or reduce a participant's level of independence and other outcomes;

(c) for all participants - the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

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

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

(b) it is not related to the participant's disability; or

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

(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs.

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

(b) costs that are ancillary to another support that is funded or provided under the participant's plan, and which the participant would not otherwise incur.

1. Schedule 1 to the Transitional Rules identifies supports that are declared NDIS supports for the purposes of subsection 10(1) of the NDIS Act. Likewise, Schedule 2 to the Transitional Rules identifies supports that are declared as not NDIS supports for the purposes of subsection 10(1) of the NDIS Act.
2. In McGarrigle v National Disability Insurance Agency[13] at [43], Mortimer J (as Her Honour then was) made the following observations in respect of these rules:

The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement...some policy decision-making about the nature and extent of supports to be provided or funded.

3. The phrase 'reasonable and necessary' is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle, Mortimer J also stated as follows:[14]

Whether a support is "reasonable" requires a different assessment to whether a support is "necessary". Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports".

4. The Full Court in National Disability Insurance Agency v WRMF[15] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; [2006] HCA 25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'. > > ... Both adjectives qualify the noun "support", but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them. > > Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.

1. The Agency issues Operational Guidelines in relation to what are considered 'reasonable and necessary supports' in a participant's plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[16] The Tribunal is therefore not bound by any policy set out in the Agency's Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[17] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[18] where Mortimer J held:[19]

Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual's case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.

2. Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for Mr Tsao. The Guidelines relevant to this review are the:
   • NDIS - Operational Guidelines - Reasonable and necessary supports;[20] and

• NDIS - Operational Guidelines - Assistance animals including dog guides, 20 June 2022.

1. I have considered all the written evidence filed with the Tribunal provided in the joint bundle, the oral evidence provided at the hearing on 5 and 6 February 2025, and the parties' closing submissions. I will refer in my decision to evidence that in my view is directly relevant to the determination of these three applications.

1. The evidence overwhelmingly supports, and it is not disputed, that Mr Tsao has a vision impairment.
2. Mr Tsao has been diagnosed with bilateral optic atrophy, cone-rod dystrophy and retinal dystrophy. Mr Tsao is, in effect, legally blind. He has no vision in his left eye and less than 5% vision in his right eye.[21]
3. Mr Tsao reports the following difficulties:
   • he can detect light in his left eye and has tunnel vision in his right eye;[22]
   • he has great difficulty with spatial perception including judging distances;
   • he also has difficulty distinguishing between objects and colour contrasts;[23]
   • he is at high risk of tripping and falling, and tends to bump into things, resulting in injuries; and
   • he has access to a cane, however, does not use this cane around his house.[24]
4. Mr Tsao lives in his own home in a suburb of Melbourne, Victoria.[25] He has resided there for approximately 20 years. For obvious reasons he is unable to drive. He utilises his support workers, taxis and public transport for travel. [26]
5. Mr Tsao's adult son resided with him and provided informal support until earlier this year. Mr Tsao's adult son has also provided him with formal support at various times.[27]
6. The goals included in Mr Tsao's plan[28] are that he would like to:
   • Increase his independence in his home and the community;
   • Improve his computer skills and be able to return to study;
   • Increase his independence in the community with his guide dog;
   • Improve his learning capabilities; and
   • Self-manage his NDIS plan.[29]

1. Mr Tsao applies to the Tribunal for reinstatement of an application made to the Tribunal on 6 January 2023. Mr Tsao's application on 6 January 2023 sought the review of a decision of the Agency not to reassess Mr Tsao's plan pursuant to section 48 of the NDIS Act.
2. The history of this application can be summarised as follows:
   • The Agency approved a plan for Mr Tsao for the period 18 July 2022 to 18 July 2023 ('the Plan');[30]
   • On 22 July 2022 Mr Tsao applied for an internal review of the decision to approve the Plan;
   • On 8 August 2022 the Agency affirmed its decision to approve the Plan;
   • Thereafter Mr Tsao took the following steps:
     • Firstly, on 29 August 2022 he applied to the Tribunal to review the decision of the Agency made on 8 August 2022;[31] and
     • Secondly, he applied separately to the Agency for a 're-assessment ' of the Plan. Mr Tsao's request to the Agency for 'reassessment' was made on the basis that his funding had been exhausted;
   • On 1 December 2022 the Agency declined to conduct a 're-assessment' of the Plan pursuant to section 48 of the NDIS Act;
   • On 28 December 2022 Mr Tsao applied to the Agency for an internal review of its decision not to conduct a re-assessment of the Plan;
   • The Agency conducted an internal review[32] and affirmed its decision not to conduct a re-assessment of Mr Tsao's plan. The Agency advised Mr Tsao of its decision on 6 January 2023;[33]
   • On 6 January 2023 Mr Tsao applied to the Tribunal for a review of the Agency's decision not to conduct a re-assessment of his plan;[34]
   • This application became application number 2023/0354 and is the subject of this

• On 1 May 2023 the parties attended a case conference;
• On 12 May 2023 Mr Tsao wrote to the Tribunal as follows, 'I wish to withdraw the case number 2023/0354 from the AAT';
• On 15 May 2023 the Tribunal dismissed application number 2023/0354;
• On 25 September 2023 Mr Tsao wrote to the Tribunal as follows: 'I wish to re-open my case no 2023/0354. I have been cheated by the NDIS Agency ... In the past I did not wish to mention because the NDIS agency agreed to pay the outstanding amounts owed to the support workers plus a small amount of fair and reasonable expenses';
• On 18 October 2023, the Tribunal wrote to Mr Tsao as follows:

Referring to our previous conversation had on 5 October 2023, you indicated to me on the phone that you would not be pursuing a Reinstatement of this application, instead withdrawing this request and potentially lodging a new application altogether. Could you please confirm this with the Tribunal by close of business Friday 27 October 2023? Thank you.

• On 5 December 2023 Mr Tsao again wrote to the Tribunal as follows:

The purpose of this letter is to persuade the Tribunal to reopen the case number 2023/0354 ... The respondent team trickily said in Court that the respondent is not challenging the case number 2023/0354 and agreed to pay support workers' wages and basic expenses. The respondent also agreed to implement a new NDIS contract to me. In the end, it was all misleading. The respondent agency did not pay support workers' wages and my new plan was rolled over from the last plan with some extra money added to it.

• On 11 December 2023 Mr Tsao lodged with the Tribunal an application for reinstatement of application number 2023/0354;
• On 30 January 2024 the Tribunal wrote to the Agency's solicitors to advise that Mr Tsao had lodged an application for reinstatement of application number 2023/0354. The Tribunal stated: 'We ask that the Respondent provide its view/ response on this reinstatement application';
• On 1 February 2024 the Agency's solicitors wrote to the Tribunal to advise that instructions were being sought.

1. I am satisfied that the Tribunal's task is to review a decision of the Agency not to conduct a reassessment of Mr Tsao's plan for the period 18 July 2022 to 18 July 2023. The Tribunal's task is not to consider reimbursement of any expenses.
2. Notwithstanding the confines of the Tribunal's review power in this application as referred to in [47], Mr Tsao continues to seek a decision from the Tribunal that the Agency pay reimbursement for the following expenses on 'compassionate grounds':
   • Dog food, dog grooming, vet, technology: 16 August 2020 - 28 April 2023 (total amount sought $2,737.94);
   • Mowing and garden maintenance: 24 November 2022 - 16 March 2023 (total amount sought: $280);
   • Support worker expenses - Yuk-Ling Leung - 3 November 2022 - 25 June 2023 (total amount sought: $28,736.49);
   • Support worker expenses - Tao Wang - 4 November 2022 - 30 June 2023 (total amount sought: $10,659.00) ('the expenses').
3. Mr Tsao's request is misconceived. The Tribunal's task in this instance is only to review the Agency's decision not to conduct a reassessment. It is not to review whether the above supports were reasonable and necessary pursuant to section 34 of the NDIS Act.
4. Pursuant to subsection 48(3)(c) or subsection 48(4) of the NDIS Act, the Agency may elect not to conduct a re-assessment of a plan despite a participant's request to do so. The Agency indeed exercised this option by deciding not to conduct a re-assessment of Mr Tsao's plan, for the period 18 July 2022 to 18 July 2023. The Agency thereafter confirmed this decision following an internal review pursuant to section 100 of the NDIS Act.
5. Item 6C of section 99 of the NDIS Act provides that a decision of the Agency not to conduct a reassessment of a participant's plan under subsection 48(3)(c) or subsection 48(4) is a "reviewable decision".
6. Pursuant to section 103 of the NDIS Act a participant may apply to the Tribunal for a review of a 'reviewable decision'. Mr Tsao exercised this right to apply to the Tribunal when he lodged application 2023/0354 on 6 January 2023.[35]
7. In exercising this right he sought a review by the Tribunal of the decision of the Agency not to conduct a reassessment of his plan for the period 18 July 2022 to 18 July 2023. He did not seek a review of whether the expenses referred to in [48] were reasonable and necessary.
8. I am satisfied that the purpose of this review is only to review the Agency's decision not to conduct a reassessment of his plan approved for the period 18 July 2022 to 18 July 2023, for the following reasons:
   • These expenses were not the subject of application 2023/0354;
   • Application 2023/0354 related solely to the Agency's refusal to re-assess Mr Tsao's plan;
   • Had Mr Tsao not withdrawn application 2023/0354, the Tribunal's task would have been to make a determination as to whether the Agency should be compelled to re-assess Mr Tsao's plan;
   • On the basis of a remittal by the Tribunal to the Agency, the Agency would have then been compelled to re-assess Mr Tsao's plan;
   • The expenses referred to by Mr Tsao at [48] are irrelevant to application 2023/0354.
9. Mr Tsao's request that the Tribunal order reimbursement of these expenses on "compassionate grounds" is also misconceived. The Tribunal has no power to exercise any discretion, on compassionate grounds or otherwise. As stated, the Tribunal's task in respect of application 2023/0354 is confined to a decision on whether the Agency should be compelled to conduct a re-assessment of the Plan.

Should application number 2023/0354 be reinstated?

1. The Tribunal's power to reinstate a dismissed application is governed by section 102 of the ART Act, which provides as follows:

(1) This section applies if the Tribunal dismisses an application.

Note: An application may be dismissed in specified circumstances (see sections 20, 84 and 96 to 101). In addition, an application is taken to have been dismissed if the applicant withdraws it (see section 95).

Tribunal may reinstate on own initiative

(2) If the Tribunal considers that the application was dismissed in error, the Tribunal may on its own initiative reinstate the application and make such orders as appear to the Tribunal to be appropriate in the circumstances.

(3) Despite subsection (2), the Tribunal must not reinstate an application under subsection (2) if the application was dismissed under section 96 (Tribunal may dismiss application if parties consent).

(4) Despite subsection (2), if more than 28 days have passed since an application was dismissed, the Tribunal must not reinstate the application under subsection (2) unless the Tribunal is satisfied that special circumstances justify reinstating the application.

1. Application number 2023/0354 was dismissed by the Tribunal on 15 May 2023 at the request of Mr Tsao. Over four months later, Mr Tsao sought reinstatement of the application.
2. On the basis that reinstatement of application number 2023/0354 was not sought within 28 days of being dismissed, Mr Tsao must satisfy the Tribunal that there exist special circumstances which justify reinstating the application.[36]
3. Mr Tsao submits the following:
   • That he was 'tricked' into withdrawing his application for a review of the Agency's decision not to conduct a re-assessment of the plan approved for the period 18 July 2022 to 18 July 2023;
   • That this deception was in the context of being promised by the Agency (or its representatives) reimbursement for the expenses.
4. The Agency contends that it is not appropriate for this application to be reinstated in circumstances where a new NDIS plan has been implemented since the time that application 2023/0354 was made.
5. I accept the Agency's submission and am satisfied that no special circumstances exist which would warrant the reinstatement of Mr Tsao's application, the purpose of which is to compel the Agency to conduct a re-assessment of his plan for the period 18 July 2022 to 18 July 2023. My considerations are as follows:
   • By lodging application number 2023/0354 on 6 January 2023, Mr Tsao sought a review of the Agency's decision not to conduct a re-assessment of the Plan;
   • Notwithstanding, on 28 March 2023 (approximately two and a half months later) the Agency did in fact conduct a re-assessment of the Plan. This re-assessment resulted in the approval of a new plan for the period 28 March 2023 to 27 June 2023.[37]
   • Simply put, Mr Tsao's application 2023/0354 sought a decision from the Tribunal that the Agency be 'compelled' to re-assess the Plan. Shortly after his application was made to the Tribunal, the Agency did in fact re-assess the Plan. This meant that the outcome Mr Tsao sought by application 2023/0354 was in fact 'realised' on 28 March 2023. As such, there was further no utility in Mr Tsao's application 2023/0354.
   • Mr Tsao's perception that application number 2023/0354 included the Tribunal also undertaking the task of considering whether the expenses were reasonable and necessary for the purposes of subsection 34(1) of the NDIS is misguided.

1. Mr Tsao's application for reinstatement of application 2023/0354 is refused.

Are the supports sought necessary to address the needs of Mr Tsao arising from the impairment in relation to which he met the disability requirements or the early intervention requirements - subsection 34(1)(aa) NDIS Act

1. Mr Tsao was granted access to the scheme on the basis of meeting the disability requirements pursuant to subsection 24(1) of the NDIS Act.[38]
2. I am satisfied that Mr Tsao meets the disability requirements on the basis of a sensory impairment due to blindness as a result of the following conditions.
   • primary open angle glaucoma;
   • rod-cone retinal dystrophy; and
   • bilateral pseudophakia.
3. Dr Fiona Wood, psychiatrist, provided reports to the Tribunal in which she provides diagnoses of Mr Tsao of depression, psychosis and possible bipolar disorder, complicated by probable neurodevelopmental difficulties.[39] The Agency contends the Tribunal cannot be satisfied that Mr Tsao meets the disability requirements on the basis of a psychosocial impairment. The Agency submits that irrespective of Dr Wood's diagnoses, there exists no evidence before the Tribunal in respect of the extent of treatment of these conditions and the relevant prognoses.
4. I accept the Agency's submission. Despite Dr Wood's diagnoses, Mr Tsao must still satisfy all of the criteria under section 24 of the NDIS Act in order to meet the disability requirements on the basis of a psychosocial impairment. I am satisfied there is insufficient evidence before the Tribunal in this regard.
5. On this basis, for the purposes of subsection 34(1)(aa) of the NDIS Act, the supports included in Mr Tsao's SOPS must be necessary to address his needs that arise as a result of his visual impairment and not any psychosocial impairment.

1. Mr Tsao seeks funding for the installation of an exhaust fan inside his bathroom which will remove any odours. He states that this is a 'hygiene issue' because his bathroom has no window which can provide ventilation.[40]
2. No quotation was provided to the Tribunal in respect of the cost of the purchase and installation of a bathroom exhaust fan. In his oral evidence Mr Tsao estimated a cost of between $300 and $500.
3. The Agency submits that this support does not relate to his vision impairment but relates to a 'preference' of Mr Tsao.
4. I accept the Agency's submission. Unpleasant odours, lingering or otherwise, in Mr Tsao's bathroom are commonplace in many bathrooms. The disturbance to Mr Tsao's sense of smell is unrelated to his disability arising as a consequence of his vision impairment.
5. I am satisfied that the installation of an exhaust fan in Mr Tsao's bathroom would be for a purpose which has no link or connection to Mr Tsao's needs arising as a result of his vision impairment.
6. Subsection 34(1)(aa) of the NDIS Act is not satisfied.

1. The funding for an exhaust fan in Mr Tsao's bathroom is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

**Levelling of front garden lawn surface and replacement with new lawn

75. Mr Tsao seeks funding so that he may have his front lawn levelled and replaced with new lawn.

76. Mr Tsao filed an undated quotation from Green Works landscaping in the sum of $7,800.00 on day 2 of the hearing. The quotation referred to the removal and excavation of old grass, fertilisation of new soil and laying of new turf grass.

77. The Agency refers to the reports of Ms Tang[41] or Mr Jackson,[42] both occupational therapists, who provided an opinion in respect of Mr Tsao's funding under the scheme. The Agency submits that as funding for this purpose was not considered by either expert, the Agency cannot be satisfied that it is reasonable and necessary support for the purposes of section 34 of the NDIS Act.

78. The Agency's submission is reasonably made out. Mr Tsao seeks this funding in the absence of any evidence (expert opinion or otherwise) in respect of whether the levelling of his front lawn and replacement with new lawn:

• will address his needs which arise from his vision impairment;[43] and

• is in fact value for money having regard to whether there are comparable supports that will achieve the same outcome and whether it will result in an improvement in his life stage outcomes or be of long term benefit to him.[44]**

1. On this basis I cannot be positively satisfied that the levelling of Mr Tsao's front lawn and replacement meets the mandatory criteria of either subsection 34(1)(aa) or 34(1)(c) of the NDIS Act.

1. The funding for levelling of Mr Tsao's front lawn and replacement with new lawn is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks a replacement guide dog and provides quotations from Guide Dogs Victoria (GDV).[45]
2. Mr Tsao's oral evidence can be summarised as follows:
   • He has had two guide dogs over the past 15 years. These guide dogs have been provided to him, free of charge, by Guide Dogs Victoria (GDV);
   • His current guide dog was 'retired' due to a hip condition approximately 10 days prior to the commencement of the Tribunal hearing ('the retired dog');
   • The retired dog is still living with him;
   • Mr Tsao has made preliminary enquiries with GDV in respect of a replacement guide dog. An officer of GDV has advised Mr Tsao in respect of his request for a replacement guide dog that she 'will talk to her boss';
   • To date, he has received no response from GDV. His understanding is that GDV will not provide any indication regarding the provision or funding of another guide dog until Mr Tsao's Tribunal proceedings are finalised;
   • In referring to GDV, Mr Tsao stated: ' ... now the NDIS exists, they were looking forward to the government funding rather than they have to pay themselves, that kind of thing';
   • Mr Tsao explained his guide dog goes 'everywhere' with him. This includes on public transport, to medical appointments, the supermarket and community activities;
   • Mr Tsao generally leaves his home three to four times a week;
   • Mr Tsao is planning to commence a TAFE course two days per week to learn Chinese and he will need his guide dog for this purpose;
   • Mr Tsao explained that he has tunnel vision with no peripheral vision. Without his guide dog he feels 'discomfort' and does not feel 'safe', particularly in the community;
   • When accessing the community with his guide dog, others around him will 'notice' his presence and will make allowances to go 'around him'.
   • In contrast, when accessing the community using only a white cane he is not noticed by others. As a consequence, people will bump into him and not give him sufficient room to manoeuvre or mobilise.
3. The Agency accepts that the Dog Guide Assessment in February 2024 by Ms Ingrid Beasley of GDV reported that Mr Tsao's current guide dog was nearing the end of its working life. Further, it noted that Mr Tsao has difficulty using a 'human guide' as he finds it difficult to follow someone else's elbow and has stumbled in such situations in the past.[46]
4. The Agency submits that a replacement guide dog does not represent value for money.[47] This is on the basis that funding for a support worker and a dog guide are for the same or similar purposes and therefore do not represent value for money as there is a duplication of support.
5. The Agency also submits that a replacement guide dog is not effective and beneficial, pursuant to subsection 34(1)(d) of the NDIS Act. In this regard, the Agency refers to the report of Mr Frank Chen, occupational therapist, which provides the following commentary:
   • Mr Tsao 'occasionally walks with a guide dog to assist him with outdoor mobility';
   • Mr Tsao expressed that 'a guide dog is not the most suitable option during heavy rainfall' and in such cases Mr Tsao 'prefers walking with a support worker';
   • When walking with a support worker and using a white cane, Mr Tsao 'feels more secure as he can hold onto the support worker's elbow, engage in conversation during the walk, and receive verbal descriptions of his surroundings for added safety';
   • Mr Tsao considered that 'a support worker is a superior choice compared to a guide dog'.[48]
6. In his oral evidence Mr Tsao refuted much of the commentary by Mr Chen. In respect of the use of a support worker in times of heavy rainfall he explained this was a preferable option as his guide dog was prone to the 'heavy shaking' of his fur coat when wet. As a result, it is extremely unpleasant for those around him to be sprayed with water from his wet guide dog.
7. Item 2 of Schedule 1 to the Transitional Rules provides that the following supports are NDIS supports for the purposes of section 10 of the NDIS Act:

Support provided by an eligible assistance animal.

(a) assessment, matching and provision of an eligible assistance animal;

(d) veterinary services including flea and worm treatments, medication, and

1. Having regard to item 2 of Schedule 1 to the Transitional Rules I am satisfied that eligible assistance animals[49] may, unless otherwise provided, be an NDIS support for the purpose of section 10 of the NDIS Act. Furthermore, that a guide dog may be an 'eligible assistance animal' for the purpose of section 10 of the NDIS Act.
2. Whether a guide dog is an eligible assistance animal for the purpose of section 10 of the NDIS Act, however, cannot and should not be presumed. This is because of the cumulative operation of section 34 of the NDIS Act and satisfaction of the relevant rules.[50]
3. In this review I consider subsection 34(1)(e) of the NDIS Act to be most relevant. Subsection 34(1)(e) requires that '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'.
4. The evidence as relevant to subsection 34(1)(e) of the NDIS Act refers to the following matters:
   • Mr Tsao has been provided with two guide dogs over the past 15 years by GDV;
   • No evidence was provided which suggested that the provision of these two guide dogs was anything other than 'free of charge';
   • No evidence was provided that GDV have refused to provide a third guide dog to Mr Tsao;
   • No evidence was provided that GDV have indicated that they would only provide a third guide dog to Mr Tsao upon payment of a fee;
   • No evidence was provided of any 'formal' request by Mr Tsao to GDV for the provision of a third guide dog;
   • Correspondence was provided by Ms Wendy Mellberg Haeker of GDV dated 25 January 2025. This correspondence advised that Mr Tsao has in fact been assessed by GDV in February 2024 and 'approved for training with a replacement guide dog'.[51]
5. I have also considered various commentary contained on the GDV public access website, which includes the following statements:
   • At Guide Dogs, we provide vital support for Victorians with low vision or blindness;
   • Our services are provided at no direct cost to our clients on an ongoing basis. Given that we receive less than 13% of our funding needs from the government, we are dependent upon generous community support;
   • We will always provide support regardless of your financial situation;
   • Guide Dogs Victoria provides a variety of supports for all people with low vision. To provide these high-quality supports - including our world-renowned Guide Dog training program- we rely on generous contributions from the community. Every contribution is crucial and creates important positive change;
   • The costs of all services are covered by God Dogs Victoria fundraising, or through funding packages such as the NDIS or My Aged Care.
   • As a not-for profit, we continue to rely heavily on the generosity of our donors and supporters to ensure our work is personalised to meet our community's complex needs and this means our donations are crucial.[52]
   • We recognise that while the NDIS is an important funding source, it represents only a small portion of our overall funding and will never cover all our clients' needs.[53] (Tribunal emphasis.)
6. Based on the evidence, I am satisfied that it is reasonable to expect that the 'community' will provide a guide dog for Mr Tsao, including any necessary training and assistance. The 'community' in the circumstances of Mr Tsao is GDV. In this regard, I am persuaded by the commentary of the Tribunal by Senior Member Parker in Smith v National Disability Insurance Agency.[54] This decision related to the meaning to be ascribed to the term 'community' for the purposes of subsection 34(1)(e) of the NDIS Act in respect of the provision of a guide dog by Australian Lions Hearing Dogs Inc (ALDH Inc) as an alternative to funding under the scheme. The Tribunal stated:

To give this term "community" its ordinary and natural meaning, the Tribunal considers that it must undertake the assessment as required by s 34(1)(e) by considering potential support offerings by the community, irrespective of the size, location, or constituency of the community group or organisation that is able to provide disability-related supports to a NDIS participant and/or other persons with disabilities. The ALHD Inc's legal status is that of an incorporated association. Almost all funding provided to run this association and to offer hearing assistance dogs as a support to persons with hearing impairments, constitutes donations or bequests from members of the public who willingly and voluntarily support the objectives of this association.

For these reasons, the Tribunal finds that the hearing assistance dog support offered by the ALHD Inc is a support being provided by the "community" within the meaning of s 34(1)(e) of the NDIS Act.

1. Having accepted GDV as the 'community' relevant to Mr Tsao's request for funding of a guide dog, my considerations concerning whether it is 'reasonable to expect' that GDV will provide a guide dog for Mr Tsao are as follows:
   • Mr Tsao has already been assessed and accepted 'as suitable' and 'eligible' by GDV for the provision of a guide dog on two previous occasions;
   • Historically GDV has already provided Mr Tsao with two guide dogs;
   • Having again met the criteria of GDV following a recent assessment, there is no apparent reason why Mr Tsao, as a person affected by a severe vision impairment, would not be provided with a third replacement guide dog;
   • It is reasonable to assume that members of the public who donate to GDV would expect that their donations would be applied for the purpose of providing a guide dog to a person such as Mr Tsao, who is profoundly blind;
   • Subsection 3(1) of the NDIS Act provides the objects of scheme. These objects are subject to a caveat contained in subsection 3(3), which provides that in giving effect to the objects of the NDIS Act, regard is to be had to the financial sustainability of the scheme and the provision of services by other agencies, Departments or organisations. (Tribunal emphasis)
   • The NDIS Operational Guidelines - Reasonable and necessary supports provides as follows:

What is the role of families, carers, informal networks and the community?

When we decide whether to fund an assistance animal, we think about what support is reasonable to expect your family, carers, informal networks and the community to give. We think about whether it's reasonable for them to give the type of support that an assistance animal would give you.

• The commentary in McGarrigle[55] in respect of the operation of Rule 3.4 of the Supports Rules, which made the following observation:

I do not consider that r 3.4 is concerned with the funding of the support: rather, it is concerned with how the participant can access the practical assistance required, thus requiring the decision-maker to consider whether that access is available through other sources rather than funding it by the Agency pursuant to the participant plan. As I have noted elsewhere in these reasons, this is an important distinction because it makes the task of the decision quite different. The decision-maker must examine the realistic and reasonable capacity of others to provide the support - feasibility, continuity, suitability - and must decide, in a rational and reasonable way, based on probative material, whether or not there is, in fact, capacity for others to provide the support to the participant that is needed.

1. In summary, Mr Tsao has had the benefit of a guide dog from GDV, free of charge, since 2010. GDV has assessed and approved Mr Tsao as being suitable for the provision of a dog (and any associated training) utilising its own assessment criteria. GDV is a predominantly community funded entity. It relies on donations from the community to fund certain services, which includes the provision of guide dogs to people with vision impairments.
2. It is also reasonable that the members of the community who fund GDV should expect that their donations will be used to fund guide dogs to persons such as Mr Tsao, who is profoundly blind. Simply put, the provision and funding of a guide dog to any Australian person does not solely rest with the scheme.

1. Subsection 34(1)(e) of the NDIS Act has not been satisfied.
2. The funding of a replacement guide dog in Mr Tsao's SOPS is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks an increase in consumables funding for guide dog maintenance in the sum of $6,500. This amount is comprised $3,000.00 for insurance and a balance of $3,500.00 for maintenance, which includes grooming, food and veterinary expenses.
2. As referred to above, Mr Tsao no longer has a guide dog. His previous guide dog is now retired and lives with him as a pet, no doubt providing him with considerable companionship.
3. Mr Tsao requests funding under the scheme for the maintenance and insurance of this retired dog on 'compassionate grounds'.
4. Item 7 of Schedule 2 to the Transitional Rules provides that the following day-to-day living costs for pets are not NDIS support for the purposes of section 10 of the NDIS Act:

(a) animals, including pets and companion animals (other than eligible assistance animals);

(b) pet food for animals (other than eligible assistance animals included in a participant's plan);

(c) veterinarian costs, pet boarding, pet grooming for animals (other than eligible assistance animals included in a participant's plan);

(e) taxidermy and pet cremations, burials or funerals.

1. Mr Tsao's submission is noted; however, the Tribunal's power is governed by item 7 of Schedule 2 to the Transitional Rules. As stated above the Tribunal has no ability to exercise any discretion on the basis of compassion or otherwise.
2. I am satisfied that the funding of maintenance and insurance costs for the retired dog, which is now a pet, is excluded under item 7 of Schedule 2 to the Transitional Rules.
3. Subsection 34(1)(f) of the NDIS Act is not satisfied on the basis that these supports are not NDIS supports for the purposes of section 10 of the NDIS Act and the Transitional Rules.

1. The funding of the maintenance and insurance costs for Mr Tsao's retired dog is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks funding for 42 hours of support coordination.
2. In his oral evidence, Mr Tsao advised that his current plan did not include any funding for support coordination.[56] Historically, however, Mr Tsao has been funded for support coordination.[57]
3. Mr Tsao stated that having funding for support coordination was 'helpful' and provided him with the ability to liaise directly with a dedicated support coordinator in respect of any issues he may have regarding his plan. His support coordinator would also telephone him at intervals to see how he was going with the use of his funded supports. Mr Tsao stated: 'If I have any question, I can ring the support coordinator'.[58]
4. In the absence of support coordination, Mr Tsao explained that he must instead liaise with the NDIS Local Area Coordinator (LAC). Mr Tsao dislikes this arrangement on the basis of the LAC being part of a 'government organisation', which he considers is biased against him. He stated: 'So I don't want to contact the government'.[59]
5. Mr Tsao was questioned by the Tribunal and asked to provide examples of reasons why he might need to contact a support coordinator. Mr Tsao explained that his only need to have contact with a support coordinator in recent times was in relation to an 'enquiry' about when he could expect to receive his new NDIS plan. He explained that previously his support co-ordinator would liaise with him approximately three months prior to the expiration of any plan. Mr Tsao confirmed his enquiry had nothing to do with the coordination of his supports.
6. Mr Tsao explained that in the past his support coordinator was able to help him find supports and gave examples of speech therapy and a garden service. He stated, 'So that I don't have to do the running around'. Notwithstanding, when questioned, Mr Tsao confirmed that he had no issues in respect of the coordination of his supports in the last six months.
7. The Agency's submissions can be summarised as follows:
   • Support coordination is intended to build a participant's capacity to understand their plan, navigate the scheme and make their own decisions;
   • Mr Tsao has been a participant in the scheme for many years. He has already been connected with most of his funded supports, and this is his ninth NDIS plan;
   • It is reasonable to assume that Mr Tsao has developed, over many years, a good understanding of how the scheme operates and the ability to navigate the scheme;
   • Mr Tsao is currently funded for, and supported by, a LAC, who can assist him in this regard;
   • The comparative support provided by an LAC achieves the same outcome for him as a support coordinator;
   • There is no evidence to suggest that an LAC is not appropriate for Mr Tsao's needs;
   • Mr Tsao has not required the services of a support coordinator for the last six months;
   • Support coordination does not represent value for money, and is not effective and beneficial, pursuant to subsections 34(1)(c) and (d) of the NDIS Act.
8. I am satisfied that the service provided by the LAC adequately manages Mr Tsao's needs. Mr Tsao complains that the service provided by the LAC is not as personalised or convenient as the service he received from a dedicated support coordinator. Notwithstanding, he was unable to identify any reason in the last six months for which he required support coordination in related to his funded supports. He identifies only an enquiry in relation to the timing of the issue of a further plan as reason for requiring support coordination. Such a matter is unrelated to support coordination.
9. On this basis I do not consider that the funding of support coordination represents value for money pursuant to subsection 34(1)(c) of the NDIS Act. I also consider that to fund support coordination for a participant on the basis of convenience and to provide a more personalised service disregards the objects of the NDIS Act and the requirement to ensure the financial sustainability of the scheme.[60]
10. Subsection 34(1)(c) of the NDIS Act is therefore not satisfied.

1. The funding of support coordination is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks 42 hours per week of support worker funding.
2. The Agency submits that this request does not represent value for money, and is not effective and beneficial, pursuant to subsections 34(1)(c) and (d) of the NDIS Act.
3. The Agency also submits that Mr Tsao is currently funded approximately $52,020.16 per year, which may be used toward support workers.[61] This funding includes the following:
   • Six hours per week of assistance with personal domestic activities. This includes assistance with cleaning, washing, personal domestic activities (such as cooking) and personal care activities (such as washing clothes and showering);
   • 12 hours per week to access community for social and recreational activities; and
   • Two hours per month of house and/or yard assistance.[62]
4. The Agency submits that 18 hours per week of support worker assistance for personal domestic activities and access to the community for social and recreational activities[63] and two hours per month for outdoor household and yard assistance is intended to work together with funding of $5,004.72 for occupational therapy so as to build Mr Tsao's capacity.
5. The Agency also submits that there is insufficient evidence to demonstrate a need for increased support worker assistance, including the expected outcomes of this support, and why the current level of funding is insufficient.
6. Mr Tsao stated, 'I need to have 40 hours per week for seven days per week for my support hours.'[64]
7. Mr Tsao's oral evidence can be summarised as follows:
   • His request for 42 hours per week is based on a need of six hours each day, seven days each week.
   • He requires a support worker to assist him with the following:
     • making breakfast, lunch and dinner. This includes cutting up food so he can eat independently;[65]
     • showering, with each shower taking 30 to 45 minutes. In this regard he requires assistance with water temperature and positioning a clean towel and his clothes.[66]. Mr Tsao is currently only able to shower five days of each week. He does not shower on the remaining two days on the basis of not having a support worker to assist him. Mr Tsao is fearful he will injure himself in the shower if unassisted. Mr Tsao wishes to shower each day so that he can clean old eye drop medication out of his eyes. This makes his daily eye drop medication more effective when reapplied. Due to his vision impairment, Mr Tsao also becomes quite 'dirty' when eating, especially in his clothes, face, hands and legs;
     • cleaning his teeth, as he is unable to put toothpaste on a toothbrush;
     • grocery shopping two or three times each week, with each trip taking between 30 and 90 minutes. Mr Tsao explained that he requires particular help at the 'checkout';
     • unpacking groceries and putting groceries in the cupboards and fridge;
     • transport to monthly appointments with his psychiatrist, with each visit, including travel time) taking two and a half hours;
     • transport to appointments with his eye specialists every three months, with each visit, including travel time for review and testing, taking approximately three and a half hours;
     • transport to appointments with his general practitioner when required;
     • attending shopping centres each week as an 'outing', which includes having a coffee at a cafeteria;
     • walking 'around the block' four times a week as a form of exercise for himself and his dog, with each walk taking around one hour and 15 minutes. In this regard, his support worker ensures there are no obstructing tree branches or trip risks;
     • preparation for bed;
     • watering his garden twice a week for 30 minutes;
     • pick-up and drop off at the gym two to three times each week, requiring a 30 minute return journey;
     • attendance at podiatry appointments every six weeks, with each attendance taking approximately one hour; and
     • administering daily medication including daily eye drops.[67]
   • Ms Caroline Scott, occupational therapist, did not 'listen' to him when she was conducting her assessment;
   • Mr Chen's current allowance for support does not take into account his wish to attend church each Sunday;
   • He no longer receives informal support from his son who has 'moved out' and no longer lives with him;
   • In the past his son has assisted him in a formal capacity as a paid support worker, however, for the most part provided him with informal support.
8. In his report dated 22 May 2023, Mr Chen[68] referred to Mr Tsao having a support worker for approximately two to eight hours, six days a week as well as relying on 'others' for various daily activities including showering, cooking, shopping, accessing the community and attending appointments and church. At the time of Mr Chen's assessment, Mr Tsao's son was residing with him and assisting in an informal capacity.
9. Mr Chen recommended at that time the following support:
   • 25 hours per week to assist with activities of daily living;
   • Six hours per week to develop routines and skills to manage domestic tasks such as cleaning, organising and maintaining a tidy home.
10. Mr Angus Jackson provided a report dated 24 June 2024 following a review 'on the papers'. His review included consideration of Mr Chen's report in respect of functional capacity.
11. Mr Jackson's opinion included the following commentary:
    • For mobility outside of the home, the ongoing use of a white cane, guide dog and support workers is required;
    • Mr Tsao uses support workers and taxis to drive him to necessary community activities;
    • Continued support from support workers for community access is expected to best ameliorate Mr Tsao's risk of falling, particularly when accessing unfamiliar locations;
    • Mr Tsao utilises various strategies to enable the completion of tasks. Examples include support workers:
      • setting up his shower environment prior to showering. This includes positioning towel(s) and clean clothes so that he can more easily access them, and also checking water temperature; and
      • assisting with cutting his food into smaller pieces so that he can eat independently.
    • Mr Tsao is unable to attend community based social groups independently due to his visual impairment, and requires direct support;
    • Mr Tsao experiences challenges with post-toilet care as he is unable to identify if he has sufficiently cleaned himself following a bowel movement. He therefore relies on a support worker to provide the necessary prompting to ensure he completes this task;
    • Mr Tsao relies on others for assistance with placing toothpaste on a toothbrush;
    • Even with bathroom modifications Mr Tsao will still require assistance with personal self-care tasks including showering, dressing and grooming;
    • Mr Tsao is completely reliant on others to complete and manage domestic tasks;
    • Mr Tsao received a high level of informal support from his son. Mr Jackson stated: 'This level of support has likely facilitated the applicant's capacity to continue living independently in the community and substantially reduced the level of funded formal support that would otherwise be required to ensure the applicant's well-being'.
12. Mr Jackson provided a timetable of the care he considered Mr Tsao required for 'person to person support'. This timetable referred to daily support between 7 am and 3 pm, with informal support thereafter.[69]
13. In his oral evidence, Mr Jackson stated that Mr Tsao used a variety of aids to mobilise, which included a white cane, a guide dog and a support worker. He explained that at times Mr Tsao may use these supports individually or all three supports at the same time. He stated that without having undertaken an in person assessment, he would be unable opine which of these supports he would use in any particular setting, including the community.
14. Having considered the evidence, I have formed the view that an allowance of six hours per week of support worker assistance for personal and domestic activities is insufficient to address Mr Tsao's needs that arise as a consequence of his visual impairment. I note that this allowance equates to 312 hours per year.
15. I am satisfied that 1,111 hours per year of support worker assistance for personal and domestic activities will address Mr Tsao's needs. My considerations are as follows:
    • Six hours per week equates to approximately 50 minutes per day;
    • An allowance of 50 minutes per day is simply insufficient to support Mr Tsao's daily needs for assistance with showering, preparing meals, cutting up food, cleaning, laundry, cleaning his teeth, preparing for bed, administering medication including eyedrops, prompting after bowel movements, preparation for bed and general hygiene and self-care needs (including fingernail and toenail cutting);
    • I also accept Mr Tsao's evidence that he requires assistance with shopping for groceries at the supermarket two or three times each week. This assistance is particularly in relation to managing the checkout, reading labels, transporting groceries to his home and unpacking groceries into his cupboards and fridge;
    • I accept that Mr Tsao requires assistance with transportation to appointments with his psychiatrist each month, eye specialist every three months, podiatrist every six weeks and general practitioner in the event he becomes unwell;
    • I accept that assistance is required each week with other tasks, which include the cleaning of his house and washing of his clothes;
    • I accept Mr Tsao's evidence in relation to the timeframes he provided in respect of these tasks;
    • I consider that 1,111 hours per year of support worker assistance for Mr Tsao's personal and domestic needs is a reasonable and necessary support for Mr Tsao, comprised as follows:
      • Showering, assistance with meals, cleaning his teeth, medication including eyedrops, personal care (including fingernail and toenail cutting) and preparation for bed - 910 hours per year (17.5 hours per week);
      • Transportation to medical and allied health appointments with his psychiatrist each month, eye specialist every three months, podiatrist every six weeks and general practitioner in the event he becomes unwell - 45 hours per year;
      • Grocery shopping including transportation to and from and unpacking of groceries - 78 hours per year (1.5 hours per week);
      • Cleaning of house and laundry - 78 hours per year (1.5 hours per week).
16. Having considered the evidence, I have also formed the view that an allowance of 12 hours per week of support worker assistance for access to community, social and recreational activities is sufficient to address Mr Tsao's needs that arise as a consequence of his visual impairment. I note that this allowance equates to 624 hours per year.
17. I am satisfied that 624 hours per year of support worker assistance for access to community, social and recreational activities will address Mr Tsao's needs. My considerations are as follows:
    • Mr Tsao attends a shopping centre each week as a social outing;
    • Mr Tsao walks his dog for one hour, four times a week. This provides Mr Tsao with physical exercise;
    • Mr Tsao attends a gym two or three times a week. His support worker provides transportation to and from this activity, with a return trip time of approximately 30 minutes;
    • Mr Tsao wishes to return to church as a recreational activity each Sunday. His support worker provides transportation to and from this activity, with a return trip time of approximately 40 minutes; and
    • Mr Tsao would also like to attend a monthly gathering with other blind people. His support worker provides transportation to and from this activity and attends with him. This activity takes between two and three hours and occurs approximately nine times each year.
18. In making my decision in relation to Mr Tsao's access to the community for social and recreational purposes, I have taken into account the occasions when Mr Tsao will not be able to access the community for social and recreational activities for reasons which may include illness, weather or cancellation of an activity. Furthermore, an allowance has been made only for transportation to and from church and gym.
19. In making my decision I have also considered the opinions of both Ms Scott and Mr Jackson.
20. In summary I am satisfied that an increase from 312 hours per year to 1,111 hours per year of support worker assistance with personal and domestic activities represents a reasonable and necessary support for Mr Tsao. My further considerations are as follows:
    • Mr Tsao is profoundly blind;
    • This level of assistance is required to manage his daily needs that arise as a consequence of his vision impairment; and
    • Mr Tsao requires assistance with showering every day. This will mitigate his risk of falls, ensure that his remnant eyedrop medication is removed each day and replenished and also manage his general hygiene. He also requires assistance in relation to his toileting care, post bowel movement and the cleaning of his teeth.
21. Subsection 34(1)(aa) of the NDIS Act is satisfied.
22. I note that the Agency's contentions in relation to this support are confined to the criteria under subsections 34(1)(c) and 34(1)(d) of the NDIS Act.
23. I am satisfied that this level of support worker assistance for personal and domestic activities 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.[70] I accept the evidence of Mr Jackson that Mr Tsao requires 1:1 person to person support for these personal and domestic activities. There is no evidence that this 1:1 support can be provided from another alternative entity in or around where Mr Tsao resides, including at a lower cost alternative.[71] The ability to shower each day and ensure his eye drop medication is removed and replaced will have long term health benefits for Mr Tsao. The ability to attend church each Sunday and social gatherings with other blind people will allow Mr Tsao to practise his religious beliefs and support Mr Tsao to establish and pursue connections within the blind community[72] Mr Tsao also gave evidence that attending church was helpful to his mental health and reduced his level of isolation from society.[73]
24. Subsection 34(1)(c) of the NDIS Act is satisfied.
25. I am also satisfied that this level of support worker assistance for personal and domestic activities will be, or is likely to be, effective and beneficial for Mr Tsao. Mr Tsao's evidence is that he enjoys attending church very much as well as engaging socially with others person affected by a vision impairment.[74] The ability to do so will enable him to practise his religious beliefs, engage socially, reduce his level of isolation and benefit his mental health and overall wellbeing.
26. Subsection 34(1)(d) of the NDIS Act is satisfied.

1. 1,111 hours per year of support worker assistance for personal and domestic activities represents a reasonable and necessary support for Mr Tsao and should be included in his SOPS.

1. Mr Tsao seeks funding for 24 hours per year of physiotherapy treatment.
2. Mr Tsao's oral evidence can be summarised as follows:
   • He sustained a back injury lifting an ice bucket many years ago. This back injury has affected the right side of his body;
   • He can therefore only use his left arm to walk his guide dog. As a consequence, the muscles on the left side of Mr Tsao's body are stiff and for that reason he requires physiotherapy treatment;
   • Mr Tsao is unsure whether he is in fact funded for physiotherapy treatment;
   • Mr Tsao advised the Tribunal that he saw a physiotherapist every month and that his support worker provided him with assistance to do so;
   • Mr Tsao explained that each monthly attendance with a physiotherapist (including travel time) took approximately two and half hours; and
   • Physiotherapy treatment is required and is directly related to his vision impairment.
3. In his report, Angus Jackson, occupational therapist,[75] provided the following opinion:

The applicant likely lives a more sedentary lifestyle due to their experience of disability, this potentially contributes to some deconditioning such as reduced muscle strength and back pain.

Physiotherapy intervention and exercise can likely assist the applicant to maintain their current level of function and reduce the rate of age-related deconditioning.

1. I note that Mr Jackson is not a physiotherapist.
2. The Agency contends that the Tribunal cannot be satisfied that 24 hours of physiotherapy is reasonable and necessary support for two reasons:
   • Firstly the need for physiotherapy is not related to Mr Tsao's vision impairment;[76]and
   • Secondly there is no expert evidence from a physiotherapist.
3. Irrespective of whether physiotherapy treatment is related to Mr Tsao's vision impairment, in respect of which I make no finding, the criteria under subsection 34(1)(d) is not satisfied. In the absence of expert evidence from a physiotherapist, which would include the reason for the amount of physiotherapy treatment Mr Tsao might require and the likely benefits, I cannot not be positively satisfied that physiotherapy will be beneficial and effective for Mr Tsao as a reasonable and necessary support pursuant to subsection 34(1)(d) of the of the NDIS Act.
4. Subsection 34(1)(d) of the NDIS Act is not satisfied.

1. The funding of physiotherapy is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao is currently funded for 26 hours per year of occupational therapy. He seeks an increase to 36 hours per year of occupational therapy.
2. Mr Chen's report, provided in May 2023, recommended 35 hours per year of occupational therapy. Mr Chen's recommendation, however, included 15 hours of occupational therapy for 'liaison with building professional and proceed with scope of work and major modification assessment/application for bathroom'.[77] On the basis of the supports which have been agreed upon and are referred to at [14], Mr Chen's recommendation can logically be reduced to 20 hours per year.
3. Mr Tsao's oral evidence can be summarised as follows:
   • He sees an occupational therapist funded under the scheme every three months;
   • Occupational therapy is 'quite expensive' and the NDIS funded occupational therapists 'want to be paid for their reports';
   • He wants an increase in his funding so that he can obtain, if he so desires, a report from an occupational therapist which can be provided to the Agency. Mr Tsao explained that he envisaged the report would relate to 'Anything that I need at home or any equipment or something like that'.
4. Mr Tsao's explanation to the Tribunal revealed that he sought an increase in his current funding for occupational therapy so that he could use this funding to obtain a report in respect of home modifications and equipment. In the context of the Agency agreeing to fund the home modifications referred to in para [14], when questioned by the Tribunal, Mr Tsao conceded that there was 'very little' left for an occupational therapist to report upon. Mr Tsao's evidence thereafter was confusing and disjointed. When asked directly, he was also unable to explain the relationship between occupational therapy and his vision impairment.
5. In my view, participants are not and should not be funded under the scheme on the basis of what they 'might need or like'. The test for the funding of a reasonable and necessary support requires satisfaction of the criteria of section 34 of the NDIS Act. To fund a participant with a financial resource which can be effectively placed in their 'back pocket' in the likelihood or possibility of a need or desire which 'may arise' disregards a fundamental object of the Act,[78] which is to ensure the financial sustainability of the scheme.

1. An additional 10 hours of occupational therapy is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks funding for monthly speech pathology to address his dyslexia and improve his communication.
2. The letter of Dr Julia Jonggowisatro, general practitioner, is a referral of Mr Tsao for speech pathology and the assessment and management of his dyslexia.[79]
3. Mr Chen also reports that while Mr Tsao can 'engage in conversations without any difficulties', his dyslexia can 'occasionally hinder his ability to express himself accurately or require more time for him to explain his thoughts and ideas'.
4. During his closing submissions Mr Chen advised the Tribunal that he withdrew his request for the funding of speech therapy.
5. Notwithstanding this late withdrawal, I am satisfied that any need for the funding of speech therapy does not arise from Mr Tsao's vision impairment.
6. Subsection 34(1)(aa) of the NDIS is not satisfied and therefore monthly speech therapy is not to be included in Mr Tsao's SOPS.

1. The funding of speech therapy is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks funding for monthly psychiatry.
2. Dr Fiona Wood, consultant psychiatrist, reports that Mr Tsao has a major psychiatric disorder arising from various conditions which include depression, psychosis and possible bipolar disorder.[80]
3. Mr Tsao has been attending with his private psychiatrist each month for a number of years. After the Medicare component, Mr Tsao explains that he must pay a gap fee of $100.00.
4. Mr Tsao also explained that he does not wish to receive psychiatric treatment through the public health system because he would not be able to receive treatment from the same psychiatrist.
5. Item 12 of Schedule 2 to the Transitional Rules provides that the following in respect of 'Health' are not NDIS supports for the purposes of section 10 of the NDIS Act:

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

1. Item 13 of Schedule 2 to the Transitional Rules provides that the following in respect of 'Mental Health' are not NDIS supports for the purposes of section 10 of the NDIS Act:

(b) Treatment, including for drug and alcohol dependency, gambling, and other disorders.

1. I am satisfied that the funding of psychiatry under the scheme is excluded under items 12 and 13 of Schedule 2 to the Transitional Rules. Subsection 34(1)(f) is therefore not satisfied on the basis that this support is not an NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules.
2. I am also satisfied that any need for psychiatric treatment does not arise from Mr Tsao's vision impairment. Subsection 34(1)(aa) of the NDIS Act is therefore also not satisfied.

1. The funding of psychiatry is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks funding to attend church each Sunday. His oral evidence can be summarised as follows:
   • He very much enjoys attending church each Sunday; and
   • This Sunday church service takes approximately three hours and includes morning tea afterwards; and
   • Attending church reduces his isolation.
2. The Agency repeats its submission that this support is not value for money, and is not effective and beneficial, pursuant to subsections 34(1)(c) and (d) of the NDIS Act. I disagree.
3. I am satisfied that funding for Mr Tsao to attend church each Sunday has been included in Mr Tsao's funding for access to the community for social and recreational purposes. I refer to paragraphs [133] to [135].

1. Funding for support worker assistance enabling Mr Tsao to attend church is a reasonable and necessary support.
2. Funding for Mr Tsao to attend church has been included in Mr Tsao's funding for access to the community for social and recreational purposes referred to in paragraphs [133] to [135]. To be clear, no additional funding for this support is required in Mr Tsao's SOPS.

1. Mr Tsao seeks funding for a yearly gym membership. No quotation for this support was provided. Currently Mr Tsao attends a government owned gym twice a week for approximately one hour.
2. Item 4(r) of Schedule 2 to the Transitional Rules provides that the following is not an NDIS support for the purposes of section 10 of the NDIS Act:

membership and entry to a recreational club and standard gym equipment.

1. Subsection 34(1)(f) of the NDIS Act has not been satisfied.

1. The funding of gym membership in Mr Tsao's SOPS is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

Monthly podiatry to cut toenails and inspect feet

1. Mr Tsao seeks funding for monthly podiatry to cut his toenails and inspect his feet
2. Mr Tsao's oral evidence can be summarised as follows:
   • He sees a podiatrist every six weeks;
   • The podiatrist checks the condition of his feet and cuts his toenails;
   • Earlier in the year, Mr Tsao badly injured one of his toes when he attempted to cut his big toe toenail. This injury took six weeks to heal.
3. The Agency submits that this support is not necessary to address Mr Tsao's needs which arise from his vision impairment in accordance with the requirement of subsection 34(1)(aa) of the NDIS Act.
4. I disagree with the Agency's submission. Mr Tsao is blind and cannot see his feet. Vision is required for any person to be able to inspect their feet and cut their toenails.
5. I am satisfied that the requirement of subsection 34(1)(aa) of the NDIS Act in respect of this support is satisfied.
6. The Agency also makes the following further submissions:
   • That there is an absence of evidence to support a need for Mr Tsao to attend a podiatrist monthly to inspect his feet;
   • There are 'two elements' in relation to this support. Firstly, the inspection of Mr Tsao's feet and secondly the cutting of his toenails; and
   • That Mr Tsao's toenails can be cut by a support worker.
7. Item 14 of Schedule 1 to the Transitional Rules provides that daily personal activities are an NDIS support, unless otherwise provided for the purposes of section 10 of the NDIS Act, and states as follows:

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 in the community.

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

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

1. Item 12(a) of Schedule 2 to the Transitional Rules, however, provides that the following is not an NDIS support for the purposes of section 10 of the NDIS Act:

the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions.

1. Schedule 1 to the Transitional Rules is subject to Schedule 2 to the Transitional Rules. As such, item 12(a) of Schedule 2 to the Transitional Rules is the operative provision. Podiatry, which would include the inspection of Mr Tsao's feet, is not an NDIS support for the purposes of section 10 of the NDIS Act, and therefore does not satisfy subsection 34(1)(f) of the NDIS Act.
2. Item 14 of Schedule 1 to the Transitional Rules, however, provides that funding for toenail cutting is an NDIS support, for the purposes of section 10 of the NDIS Act, and therefore does satisfy subsection 34(1)(f) of the NDIS Act.

1. I am therefore satisfied that only toenail cutting and not podiatry is a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and can be included in Mr Tsao's SOPS.
2. Funding for toenail cutting as a support for Mr Tsao is already provided for within the ambit of the funding for personal activities as referred to in paragraph [132] of these reasons. To be clear, no additional funding for this support is required in Mr Tsao's SOPS.

1. Mr Tsao seeks funding so that his fingernails can be cut fortnightly.
2. Currently he attends a nail salon in a shopping centre where his nails are cleaned, cut and filed to avoid him scratching himself.
3. He explained his own attempts at this task have failed. Further, he states that some of his support workers will not perform this task as they are 'afraid to'. Under cross examination, Mr Tsao conceded that some of his support workers will, however, cut his fingernails.
4. Mr Tsao is blind. Mr Tsao is unable to 'count fingers' on a hand held in front of him. He is only able to recognise a 'hand movement'.
5. Vision is required for any person to be able to inspect and cut their fingernails.
6. I am satisfied that the requirement of subsection 34(1)(aa) of the NDIS Act in respect of this support is satisfied.
7. I am also satisfied that item 14 of Schedule 1 to the Transitional Rules provides funding for daily personal tasks such as fingernail cutting.

1. I am therefore satisfied that only fingernail cutting is a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and can be included in Mr Tsao's SOPS.
2. Funding for fingernail cutting as a support for Mr Tsao is already provided for within the ambit of the funding for personal activities as referred to in paragraph [132] of these reasons. To be clear, no additional funding for this support is required in Mr Tsao's SOPS.

1. Mr Tsao has requested funding to purchase an 'OrCam My Eye Pro' in the sum of $8,000.00, which he reports was recommended to him by Vision Australia.[81] Mr Tsao relies on a quotation provided by Vision Australia.[82] The quotation of Vision Australia is in the sum of $6,561.00.[83]
2. Mr Tsao's oral evidence can be summarised as follows:
   • He has not been assessed for this piece of equipment;
   • He has not undertaken a trial of this equipment;
   • He understands that it will help him recognise people, as it has a face recognition function;
   • It will help him read printed material; and
   • It has been many years since he has trialled any other screen reading equipment.
3. Ms Angus Jackson states in his report:

It is not known if the applicant has attempted to utilise any AT items such as screen readers and dictation software to reduce his reliance on formal support in this area. The applicant would likely require significant capacity-building therapy around implementing any new communication technology.[84]

1. In his oral evidence, Mr Jackson referred to 'screen reading technology'. This included a smartphone app, with an integrated camera that could recognise and read text. Mr Jackson stated that he was uncertain of the quality of the service such an app could provide Mr Tsao.
2. Mr Jackson explained that in order to adequately consider any screen reading technology for a vision impaired person, the appropriate course would involve one or two different technologies being 'trialled' to 'figure out what works best for them'.[85]
3. Mr Jackson confirmed that he was familiar with the OrCam My Eye Pro, however, he had not prescribed this device in the past. To prescribe and recommend such a device he stated that he would need to assess Mr Tsao for this device.
4. No evidence was provided to the Tribunal that this support had been recommended by a treating practitioner, including how it would assist Mr Tsao. Furthermore, no evidence was provided to the Tribunal on whether this support is likely to be effective and beneficial having regard to current good practice[86] or whether it represents value for money in accordance with the requirement of subsection 34(1)(c) of the NDIS Act.
5. In the absence of this evidence, I am unable to be satisfied that this support meets the requirements of subsection 34(1)(c) and subsection 34(1)(d) of the NDIS Act.

1. The funding of an OrCam My Eye Pro is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks funding in the sum of $3,000 for an 'adaptive report'. The purpose of this support is to teach him how to use the OrCam My Eye Pro.
2. Having determined that an OrCam My Eye Pro is not a reasonable and necessary support for My Tsao, it follows that consideration of this support is not required.

1. The funding of an 'adaptive report' is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks funding for fortnightly mowing and gardening maintenance. Mr Tsao accepts that the need for this support is reduced in the winter months. Currently, Mr Tsao's support worker undertakes this task, which takes three to four hours on a monthly basis.[87]
2. Mr Tsao also seeks funding for annual gutter cleaning.
3. The Agency submits that:
   • these supports are not value for money, and not effective and beneficial, pursuant to subsections 34(1)(c) and (d) of the NDIS Act;
   • Mr Tsao currently has funding of $18,443.52 for assistance with daily life; and
   • This includes funding of two hours per month of house and/or yard assistance.[88]
4. Mr Tsao resides in Victoria. He accepts that the requirement for lawn mowing and garden maintenance reduces in the winter months. I am satisfied that this allowance is adequate and appropriate.
5. I do not, however, accept the Agency's submission[89] that this allowance is sufficient to provide for annual gutter cleaning. I accept that this support is directly related to Mr Tsao's needs, which arise as a consequence of his vision impairment.[90] There is no evidence from the Agency of an alternative lower cost option for the cleaning of Mr Tsao's gutter. I am also satisfied that this support will be beneficial for Mr Tsao as he will not be subjected to an overflow of his gutters with the passage of time. Such an overflow would create an obvious slip risk for Mr Tsao in and around the exterior of his home.
6. Funding for annual gutter cleaning will also ensure that an appropriately qualified and insured person undertakes this task.

1. The funding of the annual cleaning of the gutters in Mr Tsao's house is a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and should be included in Mr Tsao's SOPS.

1. Mr Tsao seeks funding for treatment from his eye specialist.
2. Mr Tsao explained that he sees two different eye specialists and must pay a gap fee for each attendance.
3. The Agency's position is that this is not reasonable and necessary, as it is not an NDIS support pursuant to subsection 34(1)(f) of the NDIS Act.
4. As previously referred to, item 12(a) of Schedule 2 to the Transitional Rules provides that the following are not NDIS supports:

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

1. I am satisfied that the funding of treatment with an eye specialist is excluded under item 12(a) of Schedule 2 to the Transitional Rules. Subsection 34(1)(f) is therefore not satisfied on the basis that this support is not an NDIS support for the purposes of section 10 of the NDIS Act and the Transitional Rules.

1. The funding of treatment with an eye specialist is not a 'reasonable and necessary' support for the purposes of subsection 34(1) of the NDIS Act and cannot be included in Mr Tsao's SOPS.

1. Mr Tsao seeks funding for attendance at a blind group social gathering. He explained that these gatherings occur on a monthly basis and generally nine times each year. Each gathering involves 'a walk' and a cup of coffee afterwards. These gatherings take approximately two to three hours with his support worker attending with him throughout.
2. The Agency submits that this support is not value for money, and is not effective and beneficial, pursuant to subsections 34(1)(c) and (d) of the NDIS Act. I disagree with the Agency's submission.
3. I am satisfied that funding for Mr Tsao to attend blind group social gatherings has been included in Mr Tsao's funding for access to the community for social and recreational purposes. I refer to paragraphs [133] to [135].

1. Funding for support worker assistance enabling Mr Tsao to attend blind group social gatherings is a reasonable and necessary support.
2. Funding for Mr Tsao to attend a monthly blind group social gathering has been included in Mr Tsao's funding for access to the community for social and recreational purposes referred to in paragraphs [133] to [135]. To be clear, no additional funding for this support is required in Mr Tsao's SOPS.

1. Mr Tsao's plan for the period 28 March 2023 to 27 June 2023 was 'self-managed'.[91] His current plan,[92] which commenced on 6 March 2024 is now, however, 'plan managed'.
2. Mr Tsao seeks that his plan from hereon be 'self-managed' instead of 'plan managed', pursuant to subsection 43(1)(a) and subsection 43(2) of the NDIS Act.
3. In his closing submissions Mr Tsao states, 'I have self-managed my own plan for quite some times (sic) and I have no criminal or bankruptcy record'.
4. The Agency objects to Mr Tsao's request for a self-managed plan under subsection 43(1)(a) of the NDIS Act.[93] The Agency's submissions can be summarised as follows:
   • Self-management of Mr Tsao's plan would present an unreasonable risk to him, pursuant to subsection 44(1)(b)(i) of the NDIS Act.[94]
   • Historically, funds have been over utilised and misused when plans have been self-managed by Mr Tsao. This has included the use of funds to pay for meals while accessing the community. Also, this has resulted in the exhaustion of funds prior to the plan end date, resulting in requests for re-assessments.
   • In particular, the Agency refers to the use of funding daily living expenses such as meals at cafes and restaurants by Mr Tsao.[95]
   • Mr Tsao justifies the utilisation of funds at cafes and restaurants for meals based on 'advice' provided by Vision Australia.[96]
   • On 30 December 2022 Mr Tsao wrote to the Agency in respect of a request for reassessment of his plan pursuant to section 48 of the NDIS Act. This request was made in the context of Mr Tsao having exhausted his funding.[97] Mr Tsao stated in his correspondence:

When I have outdoor meetings and gatherings with others blind people in a café or restaurant, I can also claim that money from NDIS. I have told by OT from Vision Australia.

1. Section 43 of the NDIS Act provides as follows:

Choice for the participant in relation to plan management

(1) A participant for whom a plan is in effect or is being prepared may make a request (a plan management request ):

(a) that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or

(2) If a participant makes a plan management request, the statement of participant supports in the plan must give effect to the request, except to the extent set out in subsections (2A) to (6).

(a) a participant makes a plan management request covered by paragraph (1)(a); and

(b) subsection 44(1) applies in relation to the participant;

the statement of participant supports in the plan must provide for the funding for supports under the plan:

(c) if paragraph 44(1)(a) or (aa) applies--to be wholly managed by the Agency; and

(d) if paragraph 44(1)(b) or (c) applies--to be managed by the Agency to the extent covered by that paragraph.

1. Section 44 of the NDIS Act provides as follows:

Circumstances in which persons must not manage funding

Participant

(1) For the purposes of paragraph 43(3)(b), this subsection applies in relation to a participant if:

(a) the participant is an insolvent under administration; or

(aa) the participant has been convicted of an offence against a law of the Commonwealth, a State or a Territory that:

(i) is punishable by imprisonment for 2 years or more; or

(b) the CEO is satisfied that the participant's management of the funding for supports under the plan to a particular extent would:

(i) present an unreasonable risk to the participant; or

(ii) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant; or

(c) the CEO is satisfied that section 46 (acquittal of NDIS amounts) would be unlikely to be complied with if the participant were to manage the funding for supports under the plan to a particular extent.

1. In summary, Mr Tsao's request for self-management is made pursuant to subsection 43(1)(a) of the NDIS Act. The Agency relies on subsection 44(1)(b)(i) of the NDIS Act to object to self-management and proposes plan management as the correct approach.
2. 'Plan management' utilising a registered plan manager is referred to in Mr Tsao's current plan as follows:

My registered plan manager will make claims and pays providers on my behalf for supports I have agreed they will provide. (Tribunal emphasis.)

1. The National Disability Insurance Scheme (Plan Management) Rules 2013 ('Plan Management Rules') refer to the Tribunal's requirement to consider whether the self-management of funding will pose an unreasonable risk to Mr Tsao. Relevantly, Rule 3.8 provides as follows:

3.8 Otherwise, the CEO is to have regard to the following:

(a) whether material harm, including material financial harm, to the participant could result if the participant were to manage the funding for supports to the extent proposed, taking into account the nature of the supports identified in the plan;

(c) the ability of the participant to make decisions;

(d) the capacity of the participant to manage finances;

(e) whether a court or a tribunal has made an order under Commonwealth, State or Territory law under which the participant's property (including finances) or affairs are to be managed, wholly or partly, by another person;

(f) whether, and the extent to which, any risks could be mitigated by:

(i) the participant's informal support network; or

(ii) any safeguards or strategies the Agency could put in place through the participant's plan.

1. The NDIS Guide to Plan Management Operational Guidelines ('Plan Management OGs') describe plan management as follows:

This is when a participant chooses to use a plan management provider who will assist a participant with managing their NDIS plan funds. Plan management providers can purchase supports on behalf of participants from either registered or unregistered providers. A plan manager will receive funds from the NDIA and disburse funds on behalf of a participant to providers of other services received.

1. The Plan Management OGs also refer to the following benefits:

• managing and monitoring a participant's budget;
• managing a participant's NDIS claims and disbursing funds to providers for services delivered;
• providing regular statements to a participant to show the financial status of their plan including prompt notification of over or under utilisation;
• offering increased choice and control to a participant over plan implementation and utilisation through additional plan financial assistance. (Tribunal emphasis.)
• Participants can also receive advice from plan management providers about how to best utilise their NDIS plan funding which can assist in building a participant's financial capacity and knowledge.

1. I am satisfied that the continuation of Mr Tsao's plan under the plan management model is appropriate in all the circumstances. I am also satisfied that self-management of Mr Tsao's plan represents an unacceptable risk to him. My considerations are as follows:
   • Mr Tsao has a history of misusing funds;[98]
   • Mr Tsao is vulnerable and has a history of relying on representations made by others such as Vision Australia in relation to the utilisation of his funding. Vision Australia has no authority to provide advice or make recommendations or representations to Mr Tsao;
   • Mr Tsao will retain his choice and control supports with plan management. He will have the ability to liaise with his plan manager in respect of the choice of his supports;
   • Plan management will provide Mr Tsao with an individual one-on-one relationship with a plan manager;
   • A plan manager will be able to assist Mr Tsao by providing advice about how to best utilise the funding in his plan;
   • Plan management will ensure the monitoring of Mr Tsao's budget to ensure that funds are not exhausted and he is not left unsupported for periods of time;
   • There is no evidence to suggest that Mr Tsao has any informal networks that could assist him with the management of his plan;[99] and
   • Mr Tsao will be assisted to make informed decisions about his supports in the context of managing a funding budget.
2. In the absence of plan management I am therefore satisfied that Mr Tsao will be unable to manage the budgeting of his funding. This poses an unacceptable risk to Mr Tsao on the basis that the exhaustion of funding prior to the expiration of his plan will leave him without the reasonable and necessary supports that he requires due to his vision impairment.

1. Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:

(i) Within 14 days of this decision, Mr Tsao's statement of participant supports specifies the following supports as reasonable and necessary:

• The works contained in quotation HCR-Q00023269 dated 3 November 2023[100] and in quotation HCR-Q0002329-2 dated 7 August 2024[101] being in the total sum of $46,267.30;
• The works contained in quotation HCR-Q00023272-4 dated 13 September 2024 in the sum of $31,902.00;[102]
• 1,111 hours per year of support worker assistance for personal and domestic activities;
• Funding for the annual cleaning of the gutters in Mr Tsao's house.

1. The date by which the Agency must reassess Mr Tsao's plan is to be 12 months after the date on which the supports in (1) above are included in Mr Tsao's statement of participant supports;
2. All other supports in Mr Tsao's existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date; and
3. Pursuant to subsection 44(1)(b)(i) of the National Disability Insurance Scheme Act 2013 (Cth), Mr Tsao's plan is to remain 'plan managed'.

1. Mr Tsao's application for reinstatement of application 2023/0354 is refused.

I certify that the preceding 247 (two hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Collins.

[12] Section 129 of the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024

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

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

[16] Minister for Home Affairs v G [2019] FCAFC 79 at [18]

[17] [1979] AATA 179 (1979); 2 ALD 634

[18] [2018] FCA 1229

[20] Webpage: ourguidelines.ndis.gov.au

[22] Jojo Tang, Complex Home Modification Assessment Template, 15 March 2024 ('Jojo Tang report'), pages 3, 23

[24] Respondent's SFIC para 4.3, Jojo Tang report, 5, 18-19, 23 and Angus Jackson report, 13 June 2024, page 22

[28] Subsection 33(1)(a) of the NDIS Act

[38] Respondent's submissions dated 13 November 2024, ST 45

[43] Subsection 34(1)(aa) of the NDIS Act

[44] Rules 3.1(a) and (b) of the Supports Rules

[46] T42- Ingrid Beasley, Dog Guide Assessment, 28 February 2024 pages 4, 5, 7

[47] Subsection 34(1)(c) of the NDIS Act

[48] B1 Frank Chen, Occupational Therapy Report, 24 May 2023 (T4 of 2024/4516), page 4

[49] Section 4 of the Transitional Rules

[50] Section 34 of the NDIS Act, Supports Rules, section 4 of the Transitional Rules, NDIS Operational Guidelines - Assistance animals including dog guides, 20 June 2022

[51] Letter of Ms Wendy Mellberg Haeker dated 30 January 2025

[54] [2023] AATA 1616 at 50

[61] Respondent's SFIC dated 16 December 2024 at para 5.15

[64] Application's submission dated 15 November 2024

[70] Subsection 34(1)(c) of the NDIS Act

[76] Subsection 34(1)(aa) of the NDIS Act

[79] A23 - Dr Julia Jonggowisatro, Letter, 21 March 2024

[80] A13 - Dr Fiona Wood, Letter, 27 August 2023

[81] Letter of Mr Tsao dated 27 April 2023

[82] Quote, Vision Australia dated 20 April 2023

[86] Subsection 34(1)(d) of the NDIS Act

[90] Subsections 34(1)(aa) of the NDIS Act

[93] Respondent's SFIC dated 16/12/24 para 5.25

[94] Pursuant to rule 3.8 of the Plan Management Rules and subsection 44(1)(b)(i) of the NDIS Act

[98] Rule 3.8(d) of the Plan Management Rules

[99] Rule 3.8(i) of the Plan Management Rules