(a) Design category: fully accessible; > > (b) Building type: one resident - two bedrooms; > > (c) Location: Median capital city; > > (d) Onsite Overnight Assistance: Yes; and > > (e) Fire Sprinklers: Yes.

5. The issue for consideration on review is whether the support of SDA should be approved in the Applicant's plan pursuant to section 33(2) of the NDIS Act.

1. The application was heard by the Tribunal on 11 June 2024.
2. Evidence before the Tribunal comprised a Hearing Bundle of documents, comprised of the 'T-Documents' filed by the Respondent pursuant to its obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth),[5] copies of the Applicant's Participant Plans,[6] extracts of the relevant legislation,[7] relevant Rules[8] and Operational Guidelines,[9] the NDIS Specialist Disability Accommodation Designed standard dated 25 October 2019,[10] and several occupational therapist reports filed by the Applicant and Respondent, being:

(a) A 'Statement of Issues Feedback to NDIS' by Occupational Therapist Cathy Crispin of Ascent Occupational Therapy, undated (but received by the Tribunal on 13 September 2023 and said by the Applicant to have been prepared circa August 2023);[11] > > (b) An 'Occupational Therapy recommendations of Support Needs' by Occupational Therapist Cathy Crispin of Ascent Occupational Therapy dated November 2022;[12] > > (c) An 'Occupational Therapy Functional Assessment Report' by Occupational Therapist Cathy Crispin of Ascent Occupational Therapy dated December 2022;[13] > > (d) An 'Occupational Therapy Report' by Occupational Therapist Rianne Lewis of Occupational Therapy Services Group dated 2 January 2024;[14] and > > (e) An 'Occupational Therapy Report - Functional Capacity Assessment' by Occupational Therapist Trudie Warner dated 12 March 2024.[15]

3. The Applicant gave evidence and was cross-examined. He appeared with a support worker.
4. I have considered the relevant factual and expert evidence and refer to parts of the same in these reasons.
5. The Tribunal also had the benefit of the Respondent's several statements of Issue and of Facts, Issues and Contentions filed in the proceedings; the Applicant's Responses to same; oral closing submissions from the Respondent and Applicant at the conclusion of the hearing; further post-hearing written submissions from the Respondent;[16] and the Applicant's replies.[17]

1. The Applicant testified that he was a partial amputee and confined to a wheelchair. For physical reasons he cannot use a prosthetic leg.[18] His other disabilities included cardiac arrhythmias which limit his life expectancy. He suffered multiple strokes in 2011 resulting from the arrythmias and has been left with aphasia, dysphasia, and balance and coordination issues, particularly on the left side of his body. From being in a wheelchair he has 'pressure care' needs and psoriasis.[19] He also suffers from Atrial Fibrillation, shortness of breath, and fainting episodes.
2. The Applicant's circumstances had changed since his application for review had been lodged and the most recent Tribunal events. At the time of his application, he was living in Tasmania. The Applicant moved to Western Australia in about July 2023 and, until shortly before the hearing, had been sharing a house with his sister in Lakelands, a suburb outside the coastal town of Mandurah. The Applicant was obliged to move out of the house when his sister moved into an aged care facility, as he could not afford the rent on his own. At the time of the hearing, the Applicant was in the process of moving to a four-bedroom, two-bathroom house in Albany, under a short-term arrangement with a person he met on social media and where he may be able to live for six to 12 months.[20] He had been living there part-time for almost four weeks,[21] and was about to relinquish the keys to his former accommodation.[22]
3. The Applicant relies on a wheelchair for mobility; he cannot use crutches due to his strokes.[23] His present accommodation has access to various rooms off a main room, and the doorways are wide enough for him to negotiate with his wheelchair. However, the backyard is too sandy to access. There is no garage, so car parking is on the driveway. He gains access to the back of the house through a gate, which he says he can manage.[24] In the Lakelands house the Applicant could also access most of the house, except his sister's room because the doorway was too narrow.[25]
4. The Applicant's new accommodation is better suited to his needs than the old, but still has limitations. He cannot use the kitchen, so has set up what he describes as 'a camping kitchen in the dining room'.[26]
5. The Applicant can drive a vehicle.[27] He has a Kia Carnival with extensive disability modifications[28] provided to him by the Transport Accident Commission of Victoria (TAC), although he complains of its unreliability.[29] The modifications include a fully automated rear entry ramp, with the driver's seat set up so that he can slide from his wheelchair into the seat, then move that forward under the steering wheel.[30] There is also a manually operated winch as a back-up. The vehicle has hand controls to enable him to drive. He is, accordingly, able to access the community 'on a good day'. Sometimes the Applicant takes a support worker with him on excursions, or the support worker will drive.[31]
6. Otherwise, the Applicant can and does use the train, and did so to come to the hearing from Lakelands; it was easier to get to and from Mandurah than driving.[32]
7. The TAC funds the extra-ordinary costs of the Applicant's vehicle. The TAC also funds the Applicant's wheelchairs, 52 hours per year for gardening and to mow the lawns,[33] two hours a week domestic/cleaning support,[34] and medical expenses related to his amputation.[35] The Applicant requires community nursing for his psoriasis and pressure area care, but that also should be funded by the TAC.[36]
8. The Applicant has applied for public housing but has been told that he will have to wait 18 months to five years depending on where he wishes to live. He presently has indicated to the relevant authority that he wished to live in Mandurah. He does not want to share accommodation with a stranger.[37]
9. The Applicant's full-time need for a wheelchair restricts his options for his housing and public access. He says he requires an adapted bathroom. As to self-management, 'most times' he can 'cope' but when he goes out in public he prefers to have someone accompany him, like a support worker.[38]
10. Other than with transfers due to the accessibility of his shower recess, the Applicant does not experience any difficulties in self-care, toileting, washing, personal hygiene, or dental hygiene.[39]
11. In the Lakelands house, the shower was too narrow for him to access with a wheelchair and, even after taking off the screen door, a shower chair was necessary. He would need support to transfer but due to the house's construction it was not possible to install shower rails, and so he had to rely on a free-standing chair or something similar.[40] When living with his sister, he had been 'mainly bird bathing' with body wipes.[41] On most days he did not feel 'well' or 'safe' enough to transfer into and out of the shower.[42]
12. The Applicant can use the open-plan bathroom in his present house, although the floor is old and slippery.[43] He currently uses a shower chair. He does, however, avoid tasks that 'become too much': when he is 'too tired or feeling too unwell to shower, I just don't.'[44] His current shower was set up for an elderly parent living with and supported by one of their children, namely, a person assisted by a carer. It is wide and does not allow him easy reach to the taps or handrails. Some modification could address the issues, but as he is not staying there that is 'not a viable option'.[45] His current accommodation enables him to wheel his chair under a basin so that he can brush his teeth and groom himself.[46]
13. The TAC has funded the Applicant for a bidet.[47] He does not use a toilet chair, as he cannot use one with a bidet.[48] However, with adequate handrails for support, he could perform his own showering and toileting.[49]
14. As a result of childhood trauma, he has problems with other people attending to certain personal care.[50]
15. The Applicant's current support worker funded by his NDIS plan is with him 6-8 hours a day each week.[51] The Applicant's support worker would take his dogs to dog day care, hang his washing on the line, accompany him to hydrotherapy where she would operate a hoist to lower and raise him from the pool and, if he was too tired afterwards, do some basic towelling to save him from having to do so; would drive him home, put the washing on while he changed, bring it in when dry, then retrieve the dog.
16. As for meals, with his dysphasia it can be difficult for the Applicant to have solid meals and solid food, and on a bad day he can choke on his saliva. The Applicant tries to prepare basic meals himself but anything involving his using his hands above shoulder height, such as washing dishes, is a challenge - 'some days it was just, no, I couldn't be bothered, it was too much effort'.[52] If counter and cooktops are at eye level, the Applicant cannot see into frying pans or pots or steamers and would regularly burn himself. He would cook meals two to three times a week, but now that he has his 'camping set up' he is trying to cook more often. He tends to have liquid meals, but would regularly cook softer foods like pasta dishes, eggs, and would steam noodles.[53]
17. The Applicant fears falling while showering and not being found if injured. He hopes that SDA with 'a flexible model' and welfare checks, and some support to do cleaning, would encourage him to engage in activities 'rather than just sit around and do pretty much nothing during the days because I'd feel more confident having that support around'.[54] He says he views it as a 'good compromise' to 'hav[ing] someone there.'
18. The Applicant was asked whether he had considered portable alert alarms, to which he replied 'I don't have anybody for it to go to', from which I infer that he does not avail himself of any.[55]
19. Having moved to Albany the Applicant occasionally mixes with some social groups but is not very confident doing so, as he is 'not very good at reading ... social conversations and things like that'.[56] He does not engage 'very much' in other activities. However, he considers that if he was in SDA there would be several other units or apartments in a complex and 'you would be more inclined to get to know your neighbours'.[57]
20. The Applicant considered that having a support person in the house would encourage him to shower regularly and assist him if he were to encounter difficulties such as choke on a meal.[58] If he was in SDA with a concierge model, and an onsite support worker, it would give him extra encouragement to be active as eventually someone would know if he had encountered difficulties.
21. The Applicant rejects the idea of shared SDA accommodation. First, he says that when his psoriasis flares, he would roam around naked.[59] When living with his sister, he had to be clothed.[60] Otherwise, he 'just simply could not cope with having other people make noise in my space on a bad day. I'd end up wanting to rip their throat out'.[61] This apparent anger issue is not something for which he has been treated as he '[d]on't need to deal with it. I manage it by, you know, withdrawing. That's basically what I do. ... it's very heavily linked to my confidence issues and my trust issues.'[62]
22. For completeness, the material before the Tribunal included a statement from the Applicant which accompanied his request for an internal review of the Respondent's decision of 28 April 2023 to refuse him SDA.[63] The Applicant was living in Tasmania at the time. In the statement, he complained that the support he was then receiving was 'inflexible' and did not provide him with sufficient assistance, and of the inaccessibility of medical and other services where he was then living. He advised that he had identified an SDA model that would allow him to pool funds with other recipients of SDA and share supports. He was suggesting being provided with SDA in Adelaide or Melbourne or even Ballarat. As noted, he has since moved from Tasmania to Western Australia, and has indicated a preference to reside in Mandurah.
23. I prefer to attribute weight to the more specific and recent evidence of the Applicant's capabilities and requirements as evidenced by his testimony and the specialist reports before the Tribunal.

OCCUPATIONAL THERAPY FUNCTIONAL CAPACITY EVIDENCE

1. While I have considered the several reports in evidence, I have had greater regard to the most recent, that of Occupational Therapist Rianne Lewis dated 2 January 2024[64] and that of Occupational Therapist Trudie Warner made 12 March 2024.[65]

1. Ms Lewis's report was compiled following an evaluation on 14 December 2023, which included reviewing earlier reports and NDIS Plans, an interview with the Applicant, observation of his completing various tasks within his (then Lakelands) home, and applying various assessment tools. She notes that the Applicant suffered an amputation and a stroke, and that he reports a major cardiac episode requiring surgery in 2003, cardiac arrhythmias with four strokes over a five-week period in 2011, post-traumatic stress disorder, depression, anxiety, and osteoarthritis.[66] She reports that as a result of his medical conditions, the Applicant experiences the following symptoms:[67]
   • Residual left-sided hemiplegia due to history of strokes.

Altered sensation to left upper and lower limbs reporting feelings of numbness and tingling.

• Reports reduced temperature sensation to left upper and lower limbs.
• Reduced coordination to left upper limb.

Dysphagia resulting in [the Applicant's] primary nourishment coming from 'Ensure'[68] drinks.

Chronic pain experienced in bilateral upper limbs, bilateral hips, back and neck. [The Applicant] reports constant pain rated as 5 (out of 10) with the worst pain experienced being 10 (out of 10).

• High falls risk with history of falls. [The Applicant] reports experiencing falls on a weekly basis.
• History of pressure injuries to buttocks with [the Applicant] reporting he experiences psoriasis on his buttocks due to reduced mobility and infrequent showering, Waterlow[69] score of 15 indicates [the Applicant] is at high risk of developing pressure injuries.
• Episodes of bladder and bowel incontinence
• Difficulty reading social cues and meeting new people with [the Applicant] reporting this to be "overwhelming''
• Reduced short term memory
• Fatigue
• Dependent on wheelchair for all daily mobility.

1. So far as the Applicant's mobility is concerned, Ms Lewis reports that the Applicant has a manual wheelchair with power assist, a power wheelchair for off-terrain environments, and has a mobility scooter which he uses when walking his dogs or driving to the local shops. He can 'independently complete pivot transfers between his [manual wheelchair], electric profiling bed, electric recliner chair and toilet with increased time required'.[70]

Self-care and personal, daily living, activities

1. As to self-care and personal, daily living, activities, Ms Lewis reports that since his strokes the Applicant has experienced dysphagia and reports being unable to eat solid foods, with his diet primarily consisting of 'Ensure' drinks and milk, and soft foods only 1-2 times per week. He can complete grooming tasks independently, including brushing his teeth and washing his hands and face, albeit using his right hand only and with increased time. The Applicant reported to her not showering at home due to his shower not being accessible with his manual wheelchair and the risk of falls, and that he instead completed sponge washes at home. He said he would use Changing Places facilities[71] 'when possible' and would also use the accessible bathroom facilities following his weekly hydrotherapy sessions.[72] The Applicant reported to Ms Lewis certain shower modifications including removal of a glass shower screen, installation of a shower curtain and hand-held shower hose, but the space remained compact, and he reported experiencing falls.[73] The Applicant was independent in dressing, although with 'increased time required'. He avoided shoes with laces, opting for Velcro fastening, and kept buttons on his shirts done up to avoid having to manipulate small buttons.[74] The Applicant reported being independent with toileting, using a bidet to assist with perineal hygiene. The Applicant reported that since his strokes he has experienced urinary incontinence with three-four accidents per week. He wore incontinence pants when going out in public, but they irritated his psoriasis, and he would avoid wearing them when possible. He also reported bowel incontinence once per month. He has previously consulted a continence nurse specialist.[75] Ms Lewis found the Applicant can independently manage his own medications.[76]

1. So far as communication and cognition is concerned, the Applicant reported having seen a psychologist who advised he may have Autism Spectrum Disorder, but this has never been formally diagnosed. The Applicant expressed good awareness of his limitations and insight into his medical history.[77]
2. The Applicant reported:[78]

(a) Experiencing anxiety and depression, but was not taking regular medications for this or in contact with psychology or counselling services; > > (b) Difficulty reading social cues and meeting new people, describing this as being "overwhelming", preferring to access the community with his support worker; > > (c) Difficulty maintaining concentration on a task for greater than 15 minutes and requiring increased time to process information and, therefore, preferring information to be presented to him in writing so that he can take his time and refer back to it when required; > > (d) Preferring to express himself via email and written communication, although he was able to clearly articulate his needs and wants verbally during the assessment and did not raise any concerns regarding reading and writing; and > > (e) Reduced short term memory, using calendars, notes, and email chains to compensate, and relying on his mobile phone to orientate to date. He was orientated to place and person during assessment.

1. Ms Lewis reported that the Applicant owns a modified Kia Carnival vehicle, and is able to independently transfer into his vehicle from his manual wheelchair and drive it with the modifications in place. The Applicant reported using his mobility scooter or train services to access the local shops. Although the Applicant could access the community independently, he preferred to be accompanied due to anxiety he experienced.[79]

1. Ms Lewis advised that due to his restricted diet the Applicant reported not preparing complex meals but was able to prepare a hot or cold drink and simple snacks, such as fruit and yoghurt. Ms Lewis reported that his kitchen benchtops, sink, oven, and stove were not wheelchair accessible, and he was required to sit side-on at these facilities. Bench tops were too high for him to complete meal preparation tasks while seated in his manual wheelchair.[80]
2. The Applicant reported being independent in loading his washing machine but that he is supported to iron clothes and hang out heavy loads.[81]
3. The Applicant received weekly cleaning services for all heavy chores, and his support worker would assist with light chores in between them, such as hanging out laundry and making the bed.[82]
4. The Applicant was able to go shopping using his mobility scooter to complete small shopping expeditions, however would require support for larger shops and assistance to reach and carry heavier items.[83]

1. The Applicant reported to Ms Lewis that before his amputation he enjoyed gardening, photography, and furniture restoration but, due to reduced mobility, was not now engaging in these leisure activities. As his backyard was not accessible to him, he was unable to enjoy gardening. He reported currently enjoying reading and visiting historical sites.[84]

1. Ms Lewis reported that the Applicant was able to independently manage all personal and financial affairs.[85]

'Functional Independence Measure & Functional Assessment Measure'

1. Ms Lewis summarised the Applicant's capabilities for a 'Functional Independence Measure & Functional Assessment Measure' as follows:

A Functional Independence Measure & Functional Assessment Measure (FIM + FAM) was completed based on current functioning level. The FIM is an 18-item global measure of function with each item scored on 7 ordinal levels with a score of 7 indicating complete independence and a score of 1 indicating complete dependency. The FAM is an additional 12 item measure designed to be used in conjunction with the FIM, which specifically addresses cognitive and psychosocial function. Results were determined from observation and information provided by [the Applicant].

• ► 7 Complete independence
  • ► 6 Modified independence
• ► 5 Supervision/set up

• ► 4 Minimal contact assistance
  • ► 3 Moderate assistance
  • ► 2 Maximal assistance
  • ► 1 total assistance

Takes all nourishment by mouth with a modified diet.

Independent with increased time required and use of bidet.

Experiences bladder accidents weekly. Manages with incontinence pants.

Experiences approximately 1 bowel accident each month.

Independent with use of assistive technology (electric profiling bed, electric recline & lift chair) and increased time.

Independent with use of toilet surround frame and increased lime. Concerns for safety due to limited circulation space.

Able to self-propel manual wheelchair with power assist.

Able to access the community independently using modified vehicle or mobility scooter; however, prefers to be accompanied due to anxiety.

May require increased time to process information.

Can become overwhelmed in social situations and when meeting new people. Therefore, prefers to be accompanied by support worker ln these instances.

Experiences symptoms of depression and anxiety. Receives unplanned support from support worker to cope.

Uses leisure time without help but choice is limited due to environmental barriers.

Reports using calendars and notes as self-initiated cues.

Able to maintain concentration on a task for 30 minutes if prompted.

Able to make a hot/cold drink and prepare a snack. Current environment limit's ability to engage in meal preparation tasks.

Able to complete light loads of washing, supported with heavy loads and ironing.

Able to contribute with some light chores, otherwise dependent on formal supports.

Able to meet immediate needs independently. Accompanied on larger shopping expeditions.

1. While the scores are of interest, it is the comments that confirm that, subject to his having proper assistive technology and accessible facilities, the Applicant is capable of considerable independence in performing tasks associated with activities of daily living.
2. The remainder of Ms Lewis's report consists of assessments of the Applicant against a variety of disability assessment tools and scales. She applies his situation against the SDA eligibility criteria and evaluates the benefits that would flow to him were he to be provided with SDA suitable to his requirements, including comparing the benefits of SDA against his then accommodation and prospective non-SD accommodation. Ms Lewis also makes several recommendations for Core and Capacity Building Supports and Assistive Technology, as well as SDA.[86]
3. I have, of course, considered and been assisted by this, but need to make my own evaluation as to the Applicant's capacity, and his eligibility for SDA against the relevant legislation and operational policies.

1. Ms Warner's report was compiled following an evaluation at the Respondent's request. It was an assessment on the papers only, which included reviewing earlier reports from Occupational Therapists Cathy Crispin and the report of Ms Lewis, but without interviewing or observing the Applicant.[87] Her assessment of the Applicant's capacity to perform certain activities is based on the medical and functional assessment reports with which she was supplied. At the time of her evaluation and report, the Applicant was still living with his sister in the Lakelands house.
2. Ms Warner also canvasses the Applicant's need for assistance with certain tasks and the supports that she considers he would benefit from. She records him as using the following assistive technology:
   • Electric Hi-Lo/Adjustable Bed & Mattress.
   • Manual wheelchair with power assist.
   • Electric Recliner with Lift-Function.
   • ROHO Cushion.[88]
3. Ms Warner did conduct a comparison between the Applicant's capacity to undertake activities of daily life as reported by Ms Lewis in January 2024 as against the report of Occupational Therapist Ms Cathy Crispin in December 2022.[89]
4. Ms Warner was also asked by the Respondent a variety of questions related to the Applicant's requirements and his need for SDA. Her responses, observations, and conclusions can be summarised as follows:

(a) The Applicant's impairments in functional capacity are primarily in the activities of mobility and self-care. Nevertheless, the available information indicates that the Applicant exhibits a 'moderate to high level of independence in mobility and self-care tasks even in his current environment' [viz the Lakelands house]. > > (b) As to mobility: the Applicant depends on his wheelchairs for mobility. As such he requires accommodation that meets Fully Accessible Specialist Disability Accommodation design requirements, the 'aim' of which is to 'to increase his independence and safety and reduce his need for formal supports'.[90] The Applicant has been provided with appropriate assistive technology to address his deficits in mobility.[91] > > (c) As to self-care: the Applicant reportedly can perform personal care tasks independently, and meal preparation (noting the restricted nature of his diet), and shopping tasks with only minimal assistance.[92] The Applicant appears to require moderate assistance to perform heavy domestic and laundry tasks.[93] > > (d) The Applicant's safety and independence in performing personal care tasks would be improved by having a more accessible bathroom.[94] The layout and configuration of the bathroom in the Lakelands house inhibits his ability to shower. He would benefit from being able to shower in a seated position with a shower stool, so he did not need to sponge bathe.[95] > > (e) The Applicant was reportedly not receiving support to perform certain personal care tasks, because of issues related to childhood trauma. He was, at the time, using public facilities for showering, which was not a sustainable, long-term option. However, providing SDA would not reduce the funding of supports for personal care, as these are not currently being provided.[96] > > (f) The layout of his Lakelands kitchen (bench height and lack of clearance under benches, sinks and cupboards) inhibits the Applicant's ability to perform complex meal preparation, although it appears that he is on a restricted diet and that complex meal preparation is not a regular component of his routine.[97] Despite the access issues in his (then) kitchen, his independence level remains unchanged from when he was living in accessible accommodation [his former Tasmanian home]. This is a function of his having a very restricted diet and his being able to prepare simple meals and hot drinks in his Lakelands accommodation. Providing SDA would not reduce the funding of supports for meal preparation, as the Applicant was managing the minimal meal preparation required under his restricted diet.[98] > > (g) On the available information, the Applicant does not require a high level of person-to-person support for a significant part of the day; nor does it describe situations where he may require immediate access to unplanned support.[99] > > (h) The available information reported safety concerns and increased risk of falls when performing personal care tasks in the Applicant's then current home environment. Providing accommodation that is accessible (SDA or from some other source) would reduce the risk of the Applicant sustaining a fall and any consequent injury. This reduces the risk of him experiencing a deterioration in his functional capacity and require increased formal supports.[100] > > (i) It may be possible to modify an existing dwelling to meet the Applicant's access needs. However, the nature, extent and cost of the modifications would depend on the layout and configuration of his property. His then accommodation, the Lakelands house, was a private rental and would require complex home modifications to the bathroom, at a minimum to ensure that it was suitable for his needs. > > (j) The available information indicates that the Applicant prefers to live alone, but there was nothing indicating that this is a requirement.[101] No behaviours of concern were reported that would pose a risk to the Applicant or to others if he was to live in shared accommodation. He was living in shared accommodation with his sister at the time, however the reported desire of both was that they not continue to live together.[102] > > (k) As a result of his disability, the Applicant requires accommodation that meets the Fully Accessible Specialist Disability Accommodation design requirements.[103] Such accommodation may be available via: > > > (i) Specialist Disability Accommodation; > > > > (ii) Private rental (dependent on availability); or > > > > (iii) Accessible public or social housing (dependent on eligibility and accessibility). > > (l) Accessible accommodation within the private rental, public housing and social housing domains would be dependent on factors such as: > > > (i) The Applicant's eligibility for public or social housing. > > > > (ii) Availability.

5. In short, while the Applicant requires suitable accommodation, with wheelchair access and an accessible bathroom and kitchen, that can be available from accommodation other than SDA. Further, it will not necessarily result in any savings by way of formal supports, as his current support needs were low, and he does not require or use a high level of person-to-person support. The Applicant can perform personal care tasks independently. He requires minimal assistance to undertake his meal preparation and shopping. The Applicant appears to require moderate assistance to perform heavy domestic and laundry tasks.
6. The Tribunal notes that although the Applicant expresses a preference for living alone, rather than in shared accommodation, there is no evidence in the material before it to support a need for such, other than his assertion at the hearing that he would walk naked when suffering psoriasis, and get angry if he was being disturbed when having a 'bad day'.

1. When a person becomes a participant of the NDIS, the CEO of the Respondent must facilitate the preparation of the participant's plan (section 32(1) of the NDIS Act). Section 33 of the NDIS Act relevantly provides:

(2) A participant's plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:

...

(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; ...

...

(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:

(a) have regard to the participant's statement of goals and aspirations; and

(b) have regard to relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant.

(Original emphasis.)

(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).

(a) National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020 (Cth) (SDA Rules); and > > (b) National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules).

2. The SDA Rules define 'specialist disability accommodation' to mean:[104]

... accommodation for a person who requires specialist housing solutions, including to assist with the delivery of supports that cater for the person's extreme functional impairment or very high support needs ...

3. Sections 11-14 in Division 2 of Part 2 of the SDA Rules provide for eligibility to receive SDA accommodation. If eligible, sections 15-18 in Division 3 of Part 2 set out the principles for determining the appropriate building type, design category, and area in which the SDA is to be located.
4. The application of the NDIS Act and its Rules are supplemented by operational guidelines. The operational guidelines represent government policy and, to the extent that they are consistent with the relevant legislation, should be applied by the Tribunal unless there is a sound reason not to do so.[105]
5. Although the Respondent referred to a variety of operational guidelines in the table of contents for the Hearing Bundle of documents it filed with the Tribunal, reference was only made to two as material to the issues as they crystallised following the hearing, that being the NDIS Specialist disability accommodation Guideline of 25 July 2022 (the SDA Guideline) and the NDIS Home modifications Guideline of 11 October 2022. The Tribunal was assured that the SDA Guideline was in effect at the time of the contested decision and remained applicable at the date of the hearing.[106]

1. As set out in section 34(1) of the NDIS Act, the CEO (and by extension the Tribunal) must be satisfied of all the criteria in the Act in relation to each support that is in issue.[107] The Tribunal is required to be positively satisfied (ie. to feel an 'actual persuasion of its occurrence or existence')[108] that each criterion in section 34(1) has been met in respect of each of the supports the Applicant seeks to have included in his Statement of Participant Supports.[109]
2. Although there is no formal onus of proof in the Tribunal, an applicant must put forward evidence and information sufficient to satisfy or persuade the Tribunal that the relevant statutory requirements are met.[110] If an applicant does not provide sufficient probative evidence in respect of each of the requested supports, then the Tribunal should not find it can be satisfied of each of the reasonable and necessary criteria in section 34(1) of the NDIS Act in respect of a requested support.

1. Section 11 of the SDA Rules prescribes the criteria to be satisfied for eligibility for SDA as follows:

A participant is eligible to receive support for specialist disability accommodation under the National Disability Insurance Scheme if the CEO is satisfied that:

(a) the participant:

(i) has an extreme functional impairment (see section 12); or

(ii) has very high support needs (see section 13); and

(b) the participant meets the SDA needs requirement (see section 14).

1. The Respondent contends that the Applicant is not eligible to receive support for SDA because he does not satisfy the criteria prescribed by section 11.

Section 12 SDA Rules: 'extreme functional impairment'

1. Section 12 of the SDA Rules deals with the question of when a participant has an 'extreme functional impairment', and states:

(1) A participant has an extreme functional impairment if:

(a) the impairment results in extremely reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:

(i) mobility;

(ii) self-care;

(iii) self-management; and

(b) the participant has a very high need for person-to-person supports in undertaking the activity even with assistive technology, equipment or home modifications.

(2) For the purposes of assessing whether a participant has an extreme functional impairment, the CEO may have regard to:

(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and

(b) the daily support requirements of the participant; and

(c) any assessment tool specified by the CEO for the purposes of this paragraph; and

(d) any other matters that the CEO considers appropriate.

1. The SDA Guideline provides that an 'extreme functional impairment' means 'you have a lot of trouble doing daily tasks on your own or sometimes may not be able to do them at all. We'll confirm you have an extreme functional impairment if you need lots of support from someone else to complete daily tasks. This is on top of any assistive technology or other home modifications you have. [111]
2. The SDA Guideline provides the following guidance as to the tasks comprising the activities of mobility, self-care and self-management:[112]

Mobility - such as walking, climbing stairs, getting in and out of a bed or a chair, carrying or moving items, and getting out of the house. > > Self-care - such as washing yourself, going to the toilet, getting dressed, eating, drinking, talking and taking medication. > > Self-management - such as housework, following routines, making friends and relationships, maintaining boundaries and managing your behaviour.

3. The use of the word 'extreme' in section 12 of the SDA Rules, in contrast with the word 'substantially' used elsewhere in the statutory scheme, must be given a meaning consistent with a more serious, or heightened, level of impairment than substantial impairment. The word 'extreme' suggests a meaning of 'of the highest degree',[113] or to a very great degree.
4. The Respondent contends the evidence does not demonstrate that the Applicant presents with an extreme functional impairment.
5. In relation to mobility, the Applicant is a partial amputee. The evidence is that he relies on a manual wheelchair (with the use of power assistance) both indoors and outdoors.[114] The Applicant also utilises a powered wheelchair for 'off terrain environments' and a mobility scooter when walking his dogs or driving to the local shops.[115]
6. In relation to self-care, it appears that while the Applicant is unable to shower, or experiences difficulties in showering, if he does not have a bathroom with necessary accessibility features, and is at risk of falls, he is able to shower independently when he has the necessary accessibility features.[116] He was independently able to use accessible bathrooms such as those at Changing Places facilities, and using the bathroom at his hydrotherapy facility.[117] In any case, the Applicant is adverse to being assisted by other persons with personal care tasks due to childhood trauma.[118]
7. In relation to self-management, the Applicant is independent in managing all personal and financial affairs.[119]
8. The evidence does not persuade me that he has an extremely reduced functional capacity in relation to self-care or self-management.
9. The Applicant has a functional impairment of his mobility, requiring him to rely on a wheelchair and other assistive technology. Given that the Applicant cannot mobilise with even the assistance of a walking stick (single or four-point), crutches, or a prosthetic limb, and is entirely dependent on a wheelchair to get about, I am prepared to accept that he has an 'extreme functional impairment' of his mobility for the purposes of section 12(1)(a) of the SDA Rules.[120]
10. Nevertheless, section 12(1)(b) requires me also to be satisfied that the Applicant has 'a very high need for person-to-person supports in undertaking the activity' to be mobile 'even with assistive technology, equipment or home modifications'.
11. The Applicant's evidence, as well as that in the occupational therapy reports, indicates that he can independently:[121]

(a) Complete all transfers between his wheelchairs, electronic bed, electronic recliner chair and toilet; > > (b) Transfer to and from, and drive, his vehicle; > > (c) Complete grooming tasks including brushing teeth, washing hands and face; > > (d) Complete showering tasks when he has accessible showering facilities; > > (e) Dress; > > (f) Complete toileting tasks with a bidet to assist with perineal hygiene; and > > (g) Prepare basic meals for himself, cook if he has accessible facilitates, and shop.

Except to transfer to or from his motor vehicle and into a swimming pool for his hydrotherapy,[122] the Applicant requires no hoists or other like assistive technology to effect transfers from his wheelchairs or into or out of bed.

1. The Applicant can complete most self-care, continence, mobility and transfers, communication, and cognitive functioning tasks without person-to-person supports, albeit with the assistance of disability-related equipment or an accessible environment.[123] He requires assistance for heavier housekeeping duties such as the laundry, cleaning, gardening, and making his bed.[124] He has assistance from both the NDIS and TAC.
2. I accept that the Applicant's desire for SDA housing with a concierge model of supports would provide him with greater security as he adjusts to increased physical limitations as he ages,[125] may facilitate his desire to live alone, and would relieve him of the stresses of finding suitable accommodation.
3. However, I am not satisfied on the evidence that the Applicant has a very high need for person-to-person supports to be mobile.[126]

Section 13 SDA Rules: 'very high support needs'

1. Under section 11(1)(a)(ii) of the SDA Rules, the Applicant can be eligible for SDA if he has 'very high support needs'. Section 13 of the SDA Rules provides that:[127]

(1) A participant has very high support needs if:

(a) the participant has lived in specialist disability accommodation for extended periods and living in that accommodation has impacted on the capacity of the participant to transition to alternative living arrangements and support; or

(b) the participant has a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day and either:

(i) there are limitations in the availability, capacity or capability of the participant's informal support network or risks to its sustainability; or

(ii) the participant is at risk or poses a risk to others, and that risk could be mitigated by the provision of specialist disability accommodation, having regard to the participant's response to risk and the interaction of the participant with the environment.

(2) For the purposes of assessing whether a participant has very high support needs, the CEO may have regard to:

(a) any assessment or examination conducted in relation to the participant, including any assessment or examination requested by the CEO under paragraph 36(2)(b) or 50(2)(b) of the Act; and

(b) the daily support requirements of the participant; and

(c) any assessment tool specified by the CEO for the purposes of this paragraph; and

(d) any other matters that the CEO considers appropriate.

1. There is no evidence that the Applicant has previously lived in SDA, or otherwise meets the criteria in section 13(1)(a).
2. As to section 13(1)(b), the available evidence does not establish that the Applicant has a need (let alone a 'very high need') for person-to-person supports that are 'immediately available' or 'constant', or 'for a significant part of the day'. On the contrary, while he has an understandable concern about having a fall or experiencing an accident, the evidence is that the Applicant is uncomfortable with having person-to-person supports for intimate activities and is capable, with the right facilities, of performing those functions independently. Accordingly, it is unnecessary for me to proceed to consider section 13(1)(b)(i) and (ii).

1. A participant seeking SDA must also satisfy the SDA needs requirement as set out in section 14 of the SDA Rules, which provides:[128]

(1) A participant meets the SDA needs requirement if, when compared to other supports alone, combined specialist disability accommodation and other supports would:

(a) better assist the participant to pursue the goals, objectives and aspirations set out in the participant's statement of goals and aspirations; and

(b) be more effective and beneficial, where possible, in:

(i) mitigating or alleviating the impact of the participant's impairment upon the participant's functional capacity; and

(ii) preventing the deterioration of the participant's functional capacity; and

(iii) improving the participant's functional capacity; and

(iv) maintaining or promoting the participant's ability to build capacity, including in the medium or long term; and

(v) maintaining or promoting the participant's opportunities to develop skills; and

(c) if the participant has very high supports needs - be more effective and beneficial, where possible, in:

(i) reducing the participant's future needs for supports which might be required due to inappropriate accommodation; and

(ii) assisting the participant to pursue goals related to life opportunities and life transitions; and

(d) if the participant has an extreme functional impairment - be more effective in providing the participant with stability and continuity of support; and

(e) represent better value for money.

(2) For the purposes of paragraph (1)(e), regard must be had to the following matters if the participant has very high support needs:

(a) whether combined specialist disability accommodation support and other supports would be likely to substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(b) the cost of providing the participant with supports needed to live in accommodation other than specialist disability accommodation, taking into account:

(i) whether those supports may be shared with other participants; and

(ii) limitations of the participant's informal support network.

1. Section 14(1)(a) to (e) requires comparing the benefits of SDA, when coupled with other supports, against the benefit provided by other supports alone. The several considerations are expressed cumulatively, so the decision-maker must be satisfied of all. In undertaking the assessment, it is necessary to identify:

(a) The 'other supports'; > > (b) The benefits that those other supports would provide to the Applicant; > > (c) The benefits that SDA would provide to the Applicant when combined with other supports; and > > (d) Which option (when comparing (a) and (b) above) better meets the section 14 criteria.

2. On the evidence before the Tribunal, the 'other supports' is increased support worker assistance to help the Applicant complete his self-care tasks, and home modifications (both minor and major) to the Applicant's bathroom and kitchen.
3. Based on the evidence, the Applicant has the option to access support worker assistance, and his Occupational Therapist Ms Lewis recommends 20 hours per week.[129] However, she notes that this support has been 'declined' by the Applicant 'due to his personal history'.[130]
4. The Respondent contends that the other, more appropriate, comparable support is home modification. Home modifications refer to custom-built changes to a participant's home to assist in them accessing and using areas of their home.[131] The Applicant's Occupational Therapist Ms Lewis dismisses this option by saying that 'it would be unreasonable to expect a landlord to modify a property to suit [the Applicant's] needs. It is unlikely that the NDIS would fund the necessary modifications if long term tenancy cannot be guaranteed'.[132] However, the Respondent submits that it is open to considering funding for home modifications in a future plan, and that the Respondent does and can fund modifications that are temporary in nature to assist a participant when they move, or otherwise will work with the participant and the homeowner to modify a current rental property.[133] This possibility does not appear to have been explored by the Applicant in respect of his Lakelands house, rather than focus on eligibility for SDA, and it is only recently that he has moved to his current accommodation. In the circumstances, there is insufficient evidence before the Tribunal for it to venture directions on the subject.
5. The Applicant's Occupational Therapist opines that the Applicant would benefit from level access showering facilities compliant with AS1429.1 and 'it is anticipated that with these facilities, [the Applicant] would be fully independent with showering tasks and not require assistance from formal supports'.[134] The Applicant has since moved from those premises. However, I understand the Respondent to accept that the Applicant would benefit from suitably accessible showering facilities, and that they would decrease his reliance on support worker assistance and increase his independence. More accessible kitchen facilities, enabling the Applicant to cook meals more easily and safely would also appear called for.
6. However, having regard to my conclusions in respect of sections 12(1)(b) and 13(1)(b), it is unnecessary for me to consider these matters further.

1. As noted, until July 2023 the Applicant was living in Tasmania, but moved to Western Australia and, since September 2023, lived in a private rental property in Lakelands which he shared with his sister.[135] It was not well suited to his mobility needs, which required an 'exploration into alternative housing options'.[136] At the time of the hearing, the Applicant was renting a house in Albany which is better suited to his needs, but still unsatisfactory.
2. SDA is not the only accommodation option available to the Applicant that will provide accessible showering and other facilities to alleviate his impairments.[137]
3. It appears that the Applicant has had trouble in securing suitable housing and may encounter difficulty in future. Occupational Therapists Ms Lewis and Ms Warner consider that the Applicant may be eligible for public housing. The Applicant testified to having applied for public housing, with a preference to live in Mandurah, and being on a waitlist. The Tribunal was not supplied with evidence as to the likelihood or timing of any housing that the Applicant may be eligible to receive.
4. It is regrettable that the current real estate market - for both purchasing and renting - is a challenge for anyone seeking accommodation, and that persons with disabilities may be even more greatly disadvantaged.
5. However, it is not for the NDIS to provide public or community housing that would be the responsibility of State or other authorities, or to remedy a scarcity in the private market. Apart from the criteria prescribed for eligibility for SDA, the Supports Rules explicitly provide as follows:

(a) supports to assist a person with disability to live independently in the community, including by building their capacity to maintain a tenancy, and support for appropriate behaviour management; and

(b) home modifications for accessibility for a person in private dwellings; and

(c) home modifications for accessibility for a person in legacy public and community housing dwellings on a case-by-case basis but not to the extent that it would compromise the responsibility of housing authorities to develop, maintain and refurbish stock that meets the needs of people with disability; and

(d) user costs of capital in some situations where a person requires an integrated housing and support model and the cost of the accommodation component exceeds a reasonable contribution from individuals.

7.20 The NDIS will not be responsible for:

(a) the provision of accommodation for people in need of housing assistance, including routine tenancy support and ensuring that appropriate and accessible housing is provided for people with disability; or

(b) ensuring that new publicly-funded housing stock, where the site allows, incorporates Liveable Housing Design features; or

(c) homelessness-specific services including homelessness prevention and outreach, or access to temporary or long term housing for participants who are homeless or at risk of homelessness; or

(d) the improvement of community infrastructure, ie accessibility of the built and natural environment, where this is managed through other planning and regulatory systems and through building modifications and reasonable adjustment where required.

1. The Respondent is not responsible for the provision of accommodation to the Applicant insofar as he claims to need housing assistance.

1. Having regard to the above, I am not satisfied that the Applicant's satisfies the requirements of eligibility to receive SDA.
2. Accordingly, I affirm the decision under review.

I certify that the preceding 100 (one-hundred) paragraphs are a true copy of the reasons for the decision herein of Administrative Appeals Tribunal

...................[Sgd].....................................................

[2] Applicant's Response to the Third Statement of Issues dated November 2023, paragraph 5.

[3] Applicant's Response to the Third Statement of Issues dated November 2023, paragraph 6.

[4] Transcript 8, confirming Respondent's Statement of Facts, Issues and Contentions dated 14 May 2024, paragraph 9.

[6] Exhibit R1 T12-T14, Hearing Bundle 70-119.

[7] Exhibit R1 T15, Hearing Bundle 120-122.

[8] Exhibit R1 T16, Hearing Bundle 123-140.

[9] Exhibit R1 T17-T18, Hearing Bundle 141-195; Exhibit R3, Hearing Bundle 221-231.

[10] Exhibit R4, Hearing Bundle 232-314.

[11] Exhibit R6, Hearing Bundle 342-345; Transcript 23.

[12] Exhibit R8, Hearing Bundle 352-355.

[13] Exhibit R1 T3, Hearing Bundle 21-26; Exhibit R7, Hearing Bundle 346-351.

[14] Exhibit R5, Hearing Bundle 316-341.

[15] Exhibit R9, Hearing Bundle 356-395: the Report bears the date '12 March 2023', but that is plainly a typographical error, and it was prepared in 2024 following an assessment on 19 February 2024.

[16] Email from the Respondent to the Tribunal dated 26 June 2024.

[17] Emails from the Applicant to the Tribunal dated 26 June 2024 and 27 June 2024.

[59] Transcript 31; presumably for relief.

[63] Exhibit R1 T9A, Hearing Bundle 63-65.

[64] Exhibit R5, Hearing Bundle 316-341.

[65] Exhibit R9, Hearing Bundle 356-395.

[69] A pressure area risk assessment tool: Exhibit R5, Evidence Bundle 317.

[71] Exhibit R5, Hearing Bundle 319: 'secure, accessible bathroom facilities for public use'.

[86] Exhibit R5, Hearing Bundle 340-341.

[87] Exhibit R9, Hearing Bundle 358-360.

[88] A pressure relief cushion for wheelchairs.

[89] Exhibit R1 T3 Hearing Bundle 21-26; Exhibit R7, Hearing Bundle 346-351.

[92] Exhibit R9, Hearing Bundle 379: 'Requiring minimal (able to do >75% of task)'.

[93] Exhibit R9, Hearing Bundle 382-383: At 379, 'Requiring at most, moderate assistance (able to do 50-75% of the task)'.

[94] Exhibit R9, Hearing Bundle 382-383.

[105] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025 at [9].

[106] Exhibit R2, Hearing Bundle 196-219.

[107] National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415, at [201] per Flick, Mortimer and Banks-Smith JJ.

[108] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at 361-362.

[109] Charrington and National Disability Insurance Agency [2022] AATA 1160, at [8] per SM Buxton.

[110] Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11, at [68] per North, Tracey and Mortimer JJ.

[111] Exhibit R2 4, Hearing Bundle 199.

[112] Exhibit R2 4, Hearing Bundle 199.

[113] Charrington and National Disability Insurance Agency [2022] AATA 1160 at [60].

[121] Exhibit R5, Hearing Bundle 319-320.

[123] Exhibit R5, Hearing Bundle 319-320.

[126] Indeed, even Occupational Therapist Cathy Crispin, as far back as August 2023, in arguing for a concierge model of SDA submitted that the Applicant 'needs periodic shifts regularly and not always lengthy supports (ie two-hour industry minimum is too long in many instances)': Exhibit R6, Hearing Bundle 342.

[127] Exhibit R3, Hearing Bundle 226-227.

[128] Exhibit R3, Hearing Bundle 227-228.

[129] Exhibit R5, Hearing Bundle 340 under 'Assistance with Daily life: Assistance with personal care activities'.

[130] Exhibit R5, Hearing Bundle 340 under 'Assistance with Daily life: Assistance with personal care activities'.

[131] National Disability Insurance Scheme - Home modifications (guideline dated 11 October 2022) 2.

[133] Respondent's Statement of Facts, Issues and Contentions dated 14 May 2024, at paragraph 55.

[137] Rule 14(b)(i) SDA Rules, Hearing Bundle.