[8]ZGQF and National Disability Insurance Agency (NDIS) [2026] ARTA 477 | Case summary | Zoe

CTHARTA

ZGQF and National Disability Insurance Agency (NDIS) [2026] ARTA 477 (31 March 2026)

austlii:cth/ARTA/2026/477

ARTA|2026-03-31

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At a glance

Source facts

Court

ARTA

Decision date

2026-03-31

Source

Original judgment source is linked above.

Judgment (297 paragraphs)

[1]

The Applicant is a young adult participant in the NDIS. He lives in Perth with his mother in a house that has been modified to support him[1]. The Applicant spends two nights each week with his father[2], who also lives in Perth in a different property[3]. The Applicant's mother is his limited guardian[4] and NDIS plan nominee.
The Applicant's mother lives with long-standing mental health conditions exacerbated and perpetuated by the Applicant's disability[5]. Living with the Applicant causes her significant distress and she is no longer able to cope with the Applicant's behaviours in the home, or his complex supports needs being delivered in her home[6]. The Applicant's father also has mental health concerns affecting his capacity to support the Applicant and provides support to a family member who is also a NDIS participant[7].
The Applicant is seeking NDIS supports that will enable him to transition to independent living and provide him with a life-long home. The Applicant's mother believes the Applicant's behaviours of concern will put him at risk of homelessness in anything other than an SDA property. The Applicant is very tall and overweight. His behaviours of concern include property damage, intimidation, physical and verbal aggression, inappropriate social behaviours, self-injurious and avoidant behaviours.

[3]

SIL is designed to support participants with higher support needs and who need some support all the time, every day, to be able to live as independently as possible at home. It includes overnight supports[16]. The Applicant is also funded to receive 15 hours per week to engage in community, social and recreational activities on weekdays.
The Applicant receives his SIL supports daily in the house he shares with his mother. He does not currently use all his SIL funding however due to his mother's difficulties in coping with support workers in the home 24 hours a day. She prefers to provide overnight supports to the Applicant herself, other than when she is staying with her partner[17]. The extent to which the Applicant uses his SIL funds when staying with his father is unclear[18] however the Tribunal accepts some SIL supports are used by the Applicant for these stayovers.
The Applicant is requesting to increase his SIL supports to 24-hour, 1:1 support and to be given specialist disability accommodation (SDA) funding. SDA is accommodation designed for a participant with extreme functional impairment and/or very high support needs who requires a specialist housing solution to assist with the delivery of their supports[19]. SDA is the only type of accommodation which is a NDIS Support[20] and therefore the only accommodation the NDIS funds. The Applicant also seeks funding for three additional supports, being an adjustable bed and mattress and a recliner chair to support postural impairments arising from his EDS. For ease and where appropriate to group them, the Tribunal refers to these collectively as the requested furniture supports, and all supports being sought as the requested supports.
Given SDA is the most substantial support sought by the Applicant, and the support he has prioritised, the key issue for the Tribunal's determination is whether SDA is a support for which the Applicant is "eligible" as set out in sections 11 to 14 of the Specialist Disability Accommodation Rules 2020 (the SDA Rules) and for which he meets the criteria in section 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (the Act), including whether SDA is a reasonable and necessary support. It is not in dispute between the parties that if all these elements are satisfied, the SDA design category should be "Robust" and the SDA building type should be villa/duplex/townhouse 1 bedroom, 1 resident with Onsite Overnight Assist. The parties also agree, as does the Tribunal, that the NDIS does not fund accommodation that is generally available or the responsibility of other governments or other areas of government, or to remedy a scarcity in the private market[21]. It is similarly agreed and accepted that the Applicant's financial position does not enable him to purchase a property himself. The Tribunal also accepts SDA is a NDIS support, for the purposes of sections 10 and 34(1)(f) of the Act.
As a matter of law and fact in this proceeding, the issue of the Applicant's eligibility for SDA turns on a comparison between the potential outcomes for him if he is provided with the funding to live in SDA housing together with SIL and his other formal and informal supports (the other supports), and the potential outcomes if the Applicant is to receive those other supports alone.
The SDA Robust design category is defined in the SDA Rules as[22]:

[5]

The Applicant contends he needs the housing design and build features, fixtures and fittings in an SDA property and built to the robust design standard because his impairments cause him to damage property, to the detriment of the property owner, the Applicant and those around him, and to become so aggressive his support workers need a purpose-built escape route from the home for their safety.
In support of these contentions, the Applicant has put forward evidence of the modifications his mother has made to her home, of past incidents of behaviours of concern including incident data, the Applicant's in-person and behaviour supports and their impact on his impairments to date.
For the reasons set out below, whilst the Tribunal accepts the Applicant has very high support needs as defined in section 13 of the SDA Rules and that section 11 of the SDA Rules is accordingly met, including due to the deleterious impact of the Applicant's disability on his mother's health and wellbeing, the Tribunal does not accept that the Applicant meets the SDA needs requirements in section 14 of the SDA Rules.
The Tribunal has also determined that the remaining requested supports do not meet the reasonable and necessary supports criteria under s 34(1) of the Act and are not to be funded under the NDIS.
Whilst the Tribunal has found the Applicant has a permanent physical impairment arising from his EDS, it has not found that impairment to give rise to substantially reduced functional capacity. Nor does it accept the requested furniture supports are otherwise necessary to address the needs of the Applicant arising from an impairment in relation to which he meets the disability or early intervention requirements. Regarding his request to increase his overnight SIL supports to a 1:1 ratio, the Tribunal is not positively satisfied this represents value for money as required by section 34(1)(c) of the Act.
How the Tribunal has reached these findings, including its procedure, the evidence it has considered, the facts it accepts and the law it has applied, are set out below.

[10]

An issue emerged at hearing as to whether the requested supports also include home modifications, if funding for SDA is approved. The Applicant's mother gave evidence that the same or similar modifications as the Applicant currently has in the home, as well as modifications he does not presently benefit from, are essential to any new home for the Applicant.
It was observed by Counsel for the Agency that several of the fixtures and fittings being sought by the Applicant, such as double glazing, high bench tops and high toilet are not included in the SDA Pricing Arrangements for any of the SDA design categories, which are, as discussed below, exclusively set out in the SDA Rules. It therefore appeared that in addition to the requested supports as stated in the Applicant's pre-hearing submissions, the Applicant was requesting building modifications as part of any SDA funding approval.
Counsel for the Agency submitted the Applicant had not provided costings for such fixtures and fittings, putting in doubt the Tribunal's ability to positively determine them to be reasonable and necessary supports, assuming the Tribunal's determinations were to proceed to that point in the sequence of issues for its consideration. Counsel also queried whether such additions would constitute "design and subsequent changes or modifications to specialist disability accommodation", which are excluded from being fundable NDIS supports by Item 19, paragraph (d) of Schedule 2 of the NDIS (Getting the NDIS Back on Track No 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Supports Rules). And if not so excluded, whether they would be included in "Home modification design and construction", as recognised and detailed as a NDIS support in Item 22 of Schedule 1 of the Transitional Supports Rules. The operation of the Transitional Supports Rules is set out below. The Tribunal accordingly requested the Applicant clarify the modifications or fixtures and fittings over and above the SDA robust design category features he is seeking.
On 3 July 2025, at the close of evidence, the Applicant confirmed he is not seeking home modifications as a support, or further modifications to SDA to be funded by the Agency, or funding to assist with building an SDA property if an appropriate existing property is unable to be identified. By way of context, the Applicant's mother had at an earlier stage proposed to be the developer of the SDA home[29].
The Agency confirmed its position that any design changes or building, fixtures or fittings modifications outside of the SDA Design Standard[30] and SDA Pricing Arrangements[31] come within Item 19 of Schedule 2 and are therefore not NDIS Supports the Tribunal could approve in tandem with SDA supports. The Tribunal concurs this is the correct reading of the Transitional Rules and their application on the facts of this matter.
Accordingly, home modifications as a funded support do not form part of the Tribunal's consideration in this proceeding.
That the Applicant's position regarding possible home modifications has changed over time is relevant to the Tribunal's consideration of opinions of the Applicant's experts that SDA is a needed support. It seems to the Tribunal such opinions have some foundation in the erroneous belief that an SDA property can be personalised to a wider range of an Applicant's needs or personal characteristics (for example his height) than is in fact the case. The Tribunal explores this feature of the evidence in further detail, as required, in its consideration below.

[49]

The Tribunal has had regard to all the evidence and submissions before it.
The Applicant has provided the Tribunal with over 40 documents, including letters, practitioner reports, incident records, behaviour support plans, daily journals and witness statements. As the Tribunal explores in its consideration of the claims and evidence in the next section, despite the volume of documents it has been provided with, the reliability of the evidence prepared by the treating and assessing professionals is a concern. This concern extends to the reliability of the evidence of Ms L, the independent medical expert engaged by the Agency.
In summary, those concerns include that the practitioner report or letter advocates for Ms Z or the Applicant, that accounts repeat or opinions derive from Ms Z's accounts without sufficient attribution, apparent misunderstandings about the features of an SDA property, and insufficient critical engagement with what the expert has been told. Several reports are presented as expert assessments with little assessment of the Applicant having occurred or the details of any assessment being unclear. Ms Z also clarified in her oral evidence that accounts of key incidents during the Applicant's schooling on which opinions about the Applicant's behaviours rely, were inaccurate. There is no practitioner report before the Tribunal that is based upon a transparent and comprehensive assessment of the Applicant's functional or cognitive capacity.
With the exception of Ms F, the Applicant's lead support worker, Mr G, his behaviour support practitioner, and Ms Z, his mother, the Applicant did not call his treating practitioners, assessors, supports and lay persons on whose letters, statements and reports he relies to give evidence. Their accounts and opinions could not be explored and tested by the Tribunal and the concerns the Tribunal has could not be discussed with them.
It is frequently put forward in the methodology of reports by assessing professionals that an assessment of the Applicant has not been conducted for reasons it would be harmful to him. In some instances, observations of the Applicant have occurred under the artifice the assessing professional is visiting the house as a friend of the Applicant's mother. Whilst the Tribunal might appreciate some of the reasons for the evolution of this practice, there is no medical or clinical evidence before the Tribunal recommending assessments be conducted in this way.
The above concerns have affected the weight the Tribunal has given to the documents before it.
The Tribunal has also noted the absence of written or oral evidence from the Applicant's father despite providing informal support to the Applicant two overnights a week.
There are no reports or clinical records from the Applicant's psychiatrists and psychologists despite the claimed extensive nature of this treatment and its relevance to his impairments and the Tribunal's considerations.
There is no independent information from Housing WA in relation to its decision to approve public disability housing for the Applicant.
The complexity of the Applicant's impairments, the grave impact they have on the health of his mother, the variance between the parties' positions in the proceeding and the rigorous assessment criteria the Tribunal must apply render these proceedings particularly vexed. Whilst it is true in all cases that expert evidence is central to the Tribunal's task, in this matter the provision to the Tribunal of objective, robust, and methodical technical assessment of the Applicant's impairments, their trajectory, and their impact, is indispensable.

[51]

Each requested support ignites preliminary consideration of whether the support is necessary to address the Applicant's needs arising from an impairment in relation to which he meets the disability or early intervention requirements.
In many cases, determining the impairments for which the Applicant meets the disability or early intervention requirements can be a straightforward task, with the Tribunal having substantial regard to the impairments as determined by the Agency upon granting access and the availability of evidence those impairments continue.
In this matter, however, information before the Tribunal about the Applicant's entry to the NDIS is scant. The Applicant's Access Request and the Agency's Access Decision have not been made available. The Tribunal has only an email from the Agency to the Applicant dated 20 January 2025 which states "the impairments" for which the Applicant has met access to the NDIS are "autism, unspecified intellectual disability, other anxiety disorder, epilepsy and bipolar"[51]. The Tribunal refers to these as the accepted conditions. The Tribunal has noted in the introduction to this decision record that EDS and the Applicant's brain lesion have not been accepted as a basis for access to the NDIS.
As the Tribunal noted during the hearing, the courts emphasise that the central concept in the disability and early intervention requirements is "impairment"[52]. It is not the name of a person's medical diagnoses or conditions[53]. Impairment has been defined to generally involve the loss of or damage to a physical, sensory or mental function[54]. "Maintaining a conceptual distinction between a disability or a condition on the one hand, and an impairment on the other, is crucial to enable a higher degree of specificity to be achieved in assessing a person's level of function"[55].
The Tribunal notes that these judicial comments whilst made in the context of access matters are relevant not only to sections 24, 25 and 34(1)(aa) of the Act but also the SDA Rules.
The Applicant contends he meets section 12 of the SDA Rules, which requires him to establish he has extreme functional impairment and extremely reduced functional capacity in at least one of three activity areas. He contends he meets section 14 of the SDA Rules, which requires, inter alia, an assessment of the benefits if any of SDA in mitigating the impact of a participant's impairment on their functional capacity, improving and preventing the deterioration of their functional capacity. The Applicant contends that SDA is needed not only to address his impairments resulting from the accepted conditions but also to address his physical impairments arising from EDS. He contends his EDS results in a physical impairment for which he also meets the disability requirements[56]. The Applicant does not make contentions regarding the early intervention requirements and his EDS or the requested furniture supports. He contends that his physical impairments and his accepted conditions are intertwined. He contends it is not possible to support him for the accepted conditions without also addressing the impact of his physical impairments on those conditions[57]. He contends his physical impairments impact his "other impairments" so frequently and to such a degree that it is necessary to support his physical impairments to adequately support his "other impairments"[58].
The Agency does not accept the Applicant's physical and neurological impairments are intertwined and that it is not possible to separate them[59]. The Agency further contends the Applicant's EDS does not give rise to impairment for which he meets the disability or the early intervention requirements[60].
At hearing, the Agency conceded the Applicant's acceptance into the NDIS was partly based on the conditions recognised by the WA Government and the supports they gave him. The extent to which the Agency had formulated its own analysis of the Applicant's impairments was, by the Agency's own admission, unclear.
The Tribunal requested the Agency make closing submissions addressing the Applicant's impairments. The Agency made submissions on the Applicant's claims to have physical impairments for which he requires access. The Tribunal did not receive submissions as to the Applicant's impairments arising from the accepted conditions.
The Tribunal emphasises it is not revisiting the Applicant's access to the scheme[61]. Still, the absence of the Agency having determined the Applicant's impairments on entry to the NDIS and numerous contentions by the Applicant that turn on consideration of his impairments and functional capacity, necessitates that the Tribunal conduct that analysis so the requested supports in this proceeding can be considered.

[56]

Ms G is the author of an April 2022 report headed "Occupational Therapy Housing Assessment Report" which is stated as having "been put together to support a recommendation for an SDA response to [the Applicant's] living situation"[67]. Ms G is not named in Ms Z's January 2025 statement or at hearing where she has detailed the Applicant's past and present treating practitioners.
The April 2022 assessment report is the only documentary evidence prepared by Ms G before the Tribunal. Ms G was not called by the Applicant to give evidence at hearing. Ms G does not outline her experience as an occupational therapist in the report or her professional knowledge and experience of SDA. She does not state that she has treated the Applicant.
Ms G states the Applicant was referred to her by the Applicant's Support Coordinator in July 2021[68]. No written instructions, or notes from instructing conversations, are referenced in the report or annexed to it.
Ms G states her assessment was conducted at the Applicant's home and included face to face appointments with the Applicant, his mother and support workers with additional consultation with his support coordinator and positive behaviour support practitioner[69]. No further detail as to when and how the appointment(s) with the Applicant were conducted is provided. Few opinions or information in the report are specifically attributed to Ms G's conversations with the Applicant or observations of the Applicant's functional capacity. The Tribunal could find only two notes, being the Applicant describing his schooling as very traumatic and stating he will never work and does not care about money[70]. Ms G does not report that she observed the Applicant being emotionally dysregulated or engaging in behaviours of concern during her assessment.
Ms G states in conducting her assessment she has reviewed nine documents. Other than the abovementioned April 2021 letter of support from Dr O-R, these documents have not been given to the Tribunal. The Tribunal observes the documents reviewed include support letters and reports dated between 2014 and 2019 and therefore pre-dating Ms G's report by three to eight years, and the hearing in these proceedings by at least six years. It follows these documents were prepared when the Applicant was between 11 and 16 years of age. He was 22 years of age at the dates of the Tribunal hearing.
The Tribunal is unable despite best efforts to find in Ms G's report a logical presentation of sourced information, analysis, recommendations and reasons. Most of Ms G's stated facts and opinions are unattributed. The report contains broad statements beyond the expertise of an occupational therapist for example conclusions that the Applicant's extensive specialist medial and therapeutic treatments over his lifetime have not been successful in significantly improving his behaviour and functional capacity[71] and that the Applicant is unable to live with or near others with disability because "he verbally abuses them all the time"[72].
Given these anomalies with Ms G's report which she was not made available to discuss with the Tribunal, it has taken a cautious approach to her evidence. It gives minimal weight to Ms G's opinions and information reported as fact without source, reasons and/or independent corroboration.
Ms G notes in summary the Applicant's "unpredictable emotional dysregulation"[73]. She references the opinion of a Dr W, Developmental Paediatrician, that the Applicant is verbal and not considered to have global intellectual difficulties", "but has some cognitive domains testing reflecting intellectual impairment[74]. The Tribunal has not been given evidence of the Applicant's cognitive testing and its results.
Ms G opines the Applicant has low motivation in undertaking tasks and activities and memorising information that are not meaningful and of interest to him[75]. She notes he has difficulty switching his attention and requires additional time to process visual and auditory information[76]. Ms G states the Applicant experiences task/demand avoidance because of his autism[77]. She states the Applicant has "reduced cognition"[78] Ms G concludes the Applicant can comprehend basic but not complex information, is unable to reflect on information from another person's perspective[79] and has difficulty processing visual information to search systematically and locate items[80]. The Tribunal notes that Behaviour Support Therapist, Ms R, states in her April 2022 report the Applicant was diagnosed with "Pathological Demand Avoidance presentation of autism" by his paediatrician[81].
Principal of the Applicant's former special education school, Ms C, writes in July 2024 that the Applicant was a student from early 2015 to end 2020 (ages 12 to 17)[82]. Ms C writes the Applicant's "eligibility for enrolment at .... school was based on [the Applicant's] diagnosis of autism and the associated high needs in all areas, particularly his extreme dysregulation during times of transition and social interaction". She reports the Applicant displayed sensory issues, extreme reactivity to other students, extreme dysregulation during times of transition and social interaction, paranoia and lack of tolerance for others, leading to frequent and severe physical and verbal outbursts. The Tribunal accepts Ms C's account that the Applicant was during his school years emotionally dysregulated, particularly in social contexts.
The Applicant's current Positive Behaviour Support Practitioner, Mr G, writes in March 2025 that the Applicant "presents with poor emotional regulation, resulting in regular escalations... behavioural escalations include inappropriate social behaviours, property damage, physical and verbal aggression"[83]. Mr G gave evidence at hearing the Applicant lacks the cognitive capabilities to plan and decide how to respond.
Ms Z gave evidence at hearing about the Applicant's sensory sensitivities and poor tolerance of noise, particularly from people talking, to light in his bedroom at nighttime and shampoo on his scalp. She gave some practical examples of the Applicant's difficulty in processing visual information, such as the Applicant not knowing where to find the milk in the fridge despite it being in the same place for 20 years. There is consistent information before the Tribunal the Applicant requires prompting for many daily activities.
Based on the above, the Tribunal finds the Applicant has a neurological impairment and, or in the alternative, cognitive impairment or impairment to which a psychosocial disability is attributable to his emotional regulation, including poor stress and impulse regulation, impairment to his capacity to sustain attention, impairment to his ability to control thought, anxiety, reduced motivation, reduced insight and impaired cognition. The Tribunal accepts the Applicant has impaired sensory functions, including anosmia and abnormal sensory sensitivity to heat, noise and light. The Tribunal finds the Applicant has an intellectual or cognitive impairment impacting his social understanding and social interaction and his ability to process visual information. There is insufficient expert evidence from a psychiatrist, neurologist or psychologist before the Tribunal for it to reach more detailed findings as to the nature, extent and impact of the Applicant's intellectual impairment and/or cognitive deficits. The Tribunal does not accept the Applicant has an impairment of hypersensitivity to pain. It is not supported by Dr R.
For ease of reading, rather than repeatedly list them for the remainder of this decision, the Tribunal refers to the Applicant's cumulative or alternative neurological, cognitive, intellectual, psychosocial and sensory impairments collectively going forward as the Applicant's neurological impairments.

[58]

Dr M is the Applicant's Paediatric Rheumatologist. In a letter dated October 2024 he confirms upon examination the Applicant's EDS diagnosis. He notes its "close association" with ASD but takes this opinion no further. This letter is the only evidence from Dr M before the Tribunal and is the source of his opinions relied on by the Tribunal unless otherwise stated[84]. Dr M did not give evidence at the hearing.
The Applicant submits his EDS gives rise to physical impairments of reduced dexterity, strength and stamina, and fatigue.[85]
Dr M notes that he had not seen the Applicant for several years. He observes widespread connective tissue and joint laxity and notes the Applicant consequentially struggles and fatigues with physical tasks. Dr M observes a significant increase in BMI and muscle deconditioning throughout the Applicant's body. He refers the reader to "the detailed occupational therapy report" for more information. He does not identify the report to which he refers. The Applicant referred the Tribunal to Ms G's 2022 report as the key source of information regarding impairment from EDS. Ms G states the Applicant experiences hypermobility of the small joints, reduced proprioception (meaning reduced body awareness of movement and location) and muscular hypotonia (meaning decreased tone, endurance and strength in the muscles)[86].
Dr K is a Specialist Musculoskeletal Physiotherapist who has prepared a report dated April 2025 based on two assessments of the Applicant, in 2017 and then 2025[87]. He identifies the Applicant has impairments and impacts arising from his EDS as being reductions in strength, dexterity of the small joints, upper limb range of movement, balance in single leg stance and reduced walking, stair use and exercise tolerance[88].
The Tribunal observes that these descriptions of the Applicant's impairment and its impacts are broadly consistent with the evidence of Ms Z at hearing and the information provided by Dr O-R in her support letter dated March 2022. Dr O-R states the Applicant frequently complains of joint pain, including shoulders, hips and ankles[89]. Dr O-R opines this arises from muscular hypotonia, and consequential overloading of the musculoskeletal system[90]. Dr O-R also states the Applicant's EDS has affected his gait and Dr M has in the past referred the Applicant for podiatry treatment and Ms Z spoke of the Applicant's orthotics. Counsel for the Agency submitted in her closing statements the Tribunal should characterise the Applicant's impairment from EDS as reduced core strength, based on the opinions of Ms G[91] and Ms L[92]. Whilst the Tribunal accepts that the Applicant experiences reduced core strength, in the Tribunal's view this is best characterised as a symptom.
On the above evidence, the Tribunal finds the Applicant has physical impairments of joint and connective tissue laxity, reduced proprioception, and muscular hypotonia. The Tribunal accepts the Applicant experiences non-specific joint pain and altered gait however considers these symptoms of those impairments.

[60]

As to the requirement of permanency, which is present in both sections 24 and 25 of the Act, the courts have said "permanent" means "enduring"[93]. Further, an impairment may be enduring even if it fluctuates, or it may fluctuate, during a person's lifetime, in its intensity and its impact[94].
Access Rules 5.4 to 5.7 set out the mandatory criteria the Tribunal must consider in determining whether an impairment is, or is likely to be, permanent.
- 5.4 An impairment is, or is likely to be, permanent only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
- 5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
- 5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
- 5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
The courts have said that rules 5.4 and 5.6 prescribe circumstances which, if met, compel the Tribunal to find that the impairment under consideration is not permanent[95]. That is, for an impairment to be permanent, the Tribunal must be positively satisfied that neither of the exclusionary circumstances in these two Rules apply. Even if rules 5.4 and 5.6 are satisfied, the Tribunal must still make a finding as to the permanence of the impairment[96]. Rules 5.5. and 5.7 may not apply in all cases. Their relevance depends on the facts of the matter.
As to the meaning of the adjectives in rule 5.4, Mortimer J in Davis observed[97]:

[63]

There is limited expert evidence as to the Applicant's current or past treatment before the Tribunal. There are several letters of support from treating specialists containing brief clinical observations and summaries of pharmaceutical treatment in the context of advocating for a particular support or legal outcome. No expert physician gave evidence at the hearing.
Ms Z confirmed at hearing the Applicant does not receive any regular treatment other than from his GP, Dr B.
Ms Z told the Tribunal that the Applicant's behaviours prevent him from being properly treated for anything and the only option is just to be supportive. Whilst the Tribunal acknowledges Dr O-R's and Dr M's evidence of their difficulties of treating the Applicant due to his emotional dysregulation, in the Tribunal's view it is for each treating professional to reach their own independent and objective opinion as to the extent to which they are willing and able to treat the Applicant. Other than the letters of Dr O-R, the Tribunal does not have evidence from the Applicant's treating professionals that they have refused the Applicant treatment or of how they may have modified their treatment in response to the Applicant's behaviours. The Tribunal is not persuaded on the evidence before it that medical and clinical treatment is globally unavailable to the Applicant because of his emotional dysregulation and behaviours of concern.
Ms Z reported that the Applicant had not seen a psychiatrist between 2018 and 2024. In April 2024, the Applicant commenced seeing Dr R. Ms Z stated the Applicant attended four appointments with Dr R, and that she ceased taking the Applicant to his appointments because there is no point, and the Applicant found them too distressing. There is no evidence from Dr R that he is unable or unwilling to treat the Applicant in person. Ms Z stated in her evidence Dr R's letter was written in response to her request for his opinion on the Applicant's behaviours and his need for appropriate accommodation. Dr R advocates for urgent, appropriate accommodation for the Applicant or his condition will deteriorate[101]. However, he does not elaborate on the foreshadowed deterioration or give reasons for his opinion.
Dr R states the Applicant has "complex lifelong neurological, development and psychiatric conditions". Dr R identifies diagnoses of ASD, ADHD, intellectual disability, PTSD, Structural brain lesion or neurological abnormality (right frontal cortical dysplasia) and volatile emotional dysregulation with aggressive behaviours. He continues:

[66]

There are unresolved contradictions and ambiguities within Dr R's letter. He states the Applicant's behaviours of concern are solely attributable to the dysplasia/brain lesion which remains under investigation. That is, they are seemingly unattributable to his other diagnosis. There is no medical evidence as to the nature of the further investigations that are being undertaken, or specific commentary as to whether the Applicant's behaviours could be remedied upon treatment of his brain lesion. Dr R also suggests the Applicant has several conditions which he opines are lifelong and then later, somewhat differently, "unlikely to settle over time". He does not identify which of the diagnosed conditions or associated impairments are lifelong. Dr R states that his treatment focuses on adjusting medication in response to multiple symptoms not limited to dysregulation.
To assist in its understanding of Dr R's letter, the Tribunal refers to the earlier, March 2022 support letter by Dr O-R in which she attributes the Applicant's "volatile emotional dysregulation - aggressive behaviour" to his bipolar disorder. She poses a question mark as to whether the condition behind the abnormal MRI and hyperintensity could be responsible for the Applicant's impulsive, dysregulated behaviour. She opines that over the nine years she has known the Applicant's family, from which the Tribunal infers also the Applicant, his "behaviour has been volatile and impulsive and dysregulated more than is expected for autism spectrum disorder"[104]. She also notes "the progress of [the Applicant's] behavioural issues relating to autism, anxiety and paranoia causing mood volatility and severe behavioural disturbance"[105].
From this, the Tribunal infers Dr O-R also attributes some of the Applicant's impairment of emotional dysregulation to his ASD and BPD. The Tribunal notes the prescription by Dr O-R of Citalopram for depression and Lamotrigine and Risperidone for cyclical mood disorder.
On a holistic consideration of the evidence as discussed above and the evidence more broadly before the Tribunal as to the length of time the Applicant has been impaired by emotional dysregulation despite pharmacological and psychology treatment and considered with an understanding of the permanent nature of ASD and BPD as medical conditions, the Tribunal is satisfied there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the Applicant's cognitive, neurological and/or psychosocial impairments. It is satisfied that notwithstanding further medical treatment may improve or lessen the severity of the impact of these impairments those impairments are or are likely to be permanent and that any further treatment and review is not required for their permanency or likely permanency to be demonstrated.
It follows that the Tribunal is satisfied the Applicant's neurological, cognitive and/or psychosocial impairments are or are likely to be permanent.
As to the Applicant's physical impairments, Ms Z stated the Applicant has seen Dr M, his rheumatologist, a lot over his life but sees him infrequently. Ms Z noted that on the last occasion the Applicant was aggressive towards Dr M. Dr M describes in his letter dated 9 October 2024, his interaction with the Applicant as "challenging because of his combative, resistive and at times almost physically threatening behaviour". The Tribunal accepts Dr M has been treating the Applicant infrequently for some years letter and the Applicant's impairments persist despite treatment.
Regarding physiotherapy, Ms Z stated at hearing that it is not possible to do anything with the Applicant and he will not do any of the exercises given to him by Dr K. The Applicant does, however go twice a week to the gym to do walking on a treadmill under the supervision of a person trainer he gets on very well with. Ms Z stated the Applicant became distressed at the first appointment and refused to go back[106].
Dr K states, in contradiction to Ms Z, the Applicant has _"_engaged in previously recommended treatments" including increased gym attendance, walking program, targeted stretching of hamstrings, reduction of screen time and several other treatments that were "suggestions". Dr K states that despite that engagement, the Applicant's impairments and symptoms continue to worsen[107]. He concludes that "given the current trajectory of his signs and symptoms and lack of response to previous management, there are no evidence-based Physiotherapy treatments" recommended for the Applicant[108].
The Tribunal finds only limited assistance from the April 2025 report of Dr K in its coverage of the Applicant's treatment. This report, based on his two assessments of the Applicant conducted seven years apart, is the only expert physiotherapy evidence before the Tribunal. Dr K does not outline how his assessments were conducted, the frequency of his treatment of the Applicant or how he has measured its effectiveness. The basis on which he has concluded the Applicant has "engaged in" his physiotherapy treatment and what he means by this is unclear in light of Ms Z's evidence the Applicant attended only twice in seven years. Of the list of previously recommended treatments, only the Applicant's regular gym attendance and treadmill walking is clearly corroborated by other evidence before the Tribunal. The Tribunal further notes Dr O-R's evidence that low impact exercise with a personal trainer is a treatment recommendation of Dr M and in addition to physiotherapy[109]. Dr K does not state the Applicant has had difficulty in engaging in physiotherapy treatment. Dr K does not outline usual treatments for patients with EDS and identify whether his treatment of the Applicant was different to that usually prescribed.
For all these reasons, the Tribunal does not find Dr K's letter to be a comprehensive account of the physiotherapy treatments available to the Applicant or the Applicant's engagement in the treatment Dr K has prescribed and is not persuaded by his letter that physiotherapy treatment is unavailable to the Applicant. The Tribunal does accept that the Applicant presented to Dr K in 2018 and in 2025 with impairments and symptoms as outlined by Dr M.
The Tribunal accepts that EDS is a genetic and incurable condition. It accepts activities including exercise, strength building to strengthen muscles and stabilise joints can be undertaken by the Applicant to manage but not remedy impairments.
On all the evidence, the Tribunal finds the Applicant meets the requirements of Rules 5.4 and 5.6 of the Access Rules. It finds in addition his physical impairments are or are likely to be permanent.

[78]

The question of whether the Applicant satisfies the requirements of section 24(1)(c) in relation to his physical impairments is in dispute between the parties and requires the Tribunal to engage in a fact-finding exercise and examination of the evidence of medical practitioners, clinicians, the applicant and their supports[112]. When considering whether an impairment or impairments result in substantially reduced functional capacity, the Tribunal must make, with a high degree of precision, a functional, practical assessment of what the Applicant can and cannot do[113]. The Tribunal must assess the degree to which the applicant can participate in the life activity[114]. That assessment involves consideration of the full range of tasks and actions that comprise each of the life activity areas[115]. It would be incorrect to undertake this assessment only in relation to one or a few of such tasks[116]. It would also be incorrect to focus on what the person does not do, as opposed to what they cannot do[117].
Further, that the Applicant undertakes some tasks differently and more slowly that others because of his permanent physical impairments, does not necessarily mean he cannot participate effectively or completely in an activity area without assistance or that his functional capacity is otherwise substantially reduced[118].
The Applicant did not initially submit he had permanent physical impairment that meets the requirements of section 24 of the Act. In his SFIC, he contends his disability support needs that that flow from the accepted conditions are affected by his impairments resulting from EDS, that do not meet either the disability or early intervention requirements. In this way, the Applicant submits the requested furniture supports meet the requirements of section 34(1)((aa)[119]. The Applicant continues to rely on these contentions.
In the Applicant's Reply to the Agency's SFIC and the Agency's position that he does not satisfy the requirements of section 24(1)(c) regarding his physical impairment[120], the Applicant contends his physical impairments satisfy Rule 5.8(a) and (b) in the activity areas of self-care and self-management[121]. He does not contend to otherwise satisfy section 24(1)(c).
The Tribunal observes there is no one report before the Tribunal directed to assessing the impact on the Applicant's functional capacity of his physical impairments. The Applicant's representative in closing also observed the information concerning the Applicant's physical impairments is scattered through particularly the older reports before the Tribunal, which were prepared to support the request for SDA supports.

[83]

Regarding eating, Ms G states the Applicant requires physical assistance in meal preparation (carrying items, opening packages, cutting food). She states the Applicant experiences difficulty using cutlery to feed himself due to his physical impairments[125]. The applicant's representative refers the Tribunal to other difficulties in meal preparation identified by Ms G which the Tribunal concludes arise from his neurological impairments[126].
Regarding health, Ms G states the Applicant has difficulty removing medication from a blister pack.
Ms L did not report observing the Applicant in self-care tasks other than eating and drinking. She states she observed the Applicant's hypermobility while reaching for morning tea snacks and drinks. She does not elaborate.
The Applicant's current behaviour support practitioner, Mr G, makes brief comments regarding the Applicant's physical impairments for the purposes of noting their functional impact and influence on his behaviour[127]. Having considered the letters of Dr O-R, Mr G notes the Applicant has difficulties in plugging in electronic appliances and charging his iPad. The Applicant cannot make himself a hot drink due to the danger of spilling it. He relies on others to use scissors, knives, zips, ties shoe-laces, wash his hair, shave and do up buttons. His fine motor skills lead him to drop his medication.
Ms Z's evidence at hearing is consistent with her earlier reports to practitioners. She explained the Applicant's hands shake such that he cannot plug in appliances. His hands are weak, causing him to break the blinds daily while struggling to open them. She explained the Applicant is unable to reach below the level of his knees due to tight hamstrings and with the towel to dry his back. He dries his back by laying down on his bed. Ms Z states the Applicant does not clean his teeth properly such that he has accumulated gum disease. He cannot shave and attends a barber for shaving. She spoke of a recent incident where the Applicant fell in the shower, he became distressed and was unable to get up on his own. She explained the Applicant wears a limited range of clothing including t-shirts and elasticated trousers to overcome difficulties with fasteners. Ms Z explained that with many of the tasks the Applicant has difficulty with because of his reduced hand dexterity, the Applicant refuses to be helped and to have someone do the task for him.
The Tribunal accepts the Applicant experiences the functional difficulties stated above. It accepts the Applicant recently fell in the shower. In relation to some claims, however, there is insufficient relevant expert evidence for the Tribunal to be positively satisfied those difficulties are in whole or in part attributable to the accepted permanent physical impairments.
The Tribunal in summary accepts the Applicant's claims arising from reduced hand dexterity including inability to fasten various clothing on his own, reduced ability to cut his nails, inability to safely shave, reduced ability to get food and drink from a plate, glass or cup to his mouth and reduced ability to rinse shampoo from his hair and wipe during toileting. The Tribunal accepts the Applicant recently fell in the shower. The Tribunal observes the notations in Ms Long's report[128] the Applicant requires extra time to perform the tasks of self-care and accepts that although she combines her findings across impairments that the Applicant requires extra time for these accepted tasks by reason of his physical impairment.
The Tribunal accepts the Applicant has reduced functional capacity in each of the self-care task clusters by reason of his physical impairments and finds these primarily arise from his reduced hand strength and dexterity. However, there is no one self-care task he forgoes altogether, or for which he requires AT, equipment or in person supports to be able to carry out the task as a whole. The Tribunal considers that the Applicant experiences impairment in only discreet components of the range of tasks or actions that comprise the activity of self-care. For this reason, the Tribunal finds he does not usually require assistance from other people, assistive technology, equipment or home modifications to participate in the activity of self-care or to perform tasks or actions required to undertake or participate in the activity solely by reason of his permanent physical impairments.
Regarding the activity of self-care and his permanent physical impairments, the Tribunal finds the Applicant's circumstances are not captured by those described in rule 5.8 of the Access Rules. It further finds the Applicant's permanent physical impairments do not result in substantially reduced functional capacity to undertake the activity of self-care.

[139]

There is persuasive evidence the request for SDA has been brought because the Applicant's mother, Ms Z, is the central figure in his informal support network[135] and she is unable to continue to provide in-person supports, as she currently does, on a day-to-day basis with periods of respite. The Tribunal places particular weight on Ms Z's own evidence and the letter from her psychiatrist in this respect. There is also information, which the Tribunal accepts, about the limitations to the capacity of the Applicant's father's capacity to provide daily support as well as to his siblings' capacity.
The Applicant's submits he is the cause of Ms Z's psychiatric conditions[136]. The Tribunal does not accept this claim given Ms Z's evidence about the origins of those conditions[137] and Dr O-R's and Dr O's evidence of other contributing factors[138]. The Tribunal does accept the evidence of Ms Z and her psychiatrist Dr O that the emotional strain of caring for the Applicant has perpetuated Ms Z's longstanding conditions[139] and that the strain has escalated over the years to the point she is unable to continue living with the Applicant[140] and unable to cope with his complex support needs[141], including the presence of support workers in her home 24 hours a day without deleterious impacts upon her health. The Tribunal accepts that in response to the Applicant's behaviours, Ms Z curtails her ordinary activities to minimise behavioural triggers or in response to the Applicant's complaint while she is at home. She spends time overseas with her partner. The Applicant's father also has complex mental health needs, and the Applicant has a detrimental impact on his wellbeing"[142]. It is not clear that it is being contended, however the Tribunal would not accept the Applicant's parents are unable to provide any support at all. Ms Z maintains decision-making support by virtue of her role as guardian and there is no evidence before the Tribunal the Applicant would not continue to stay two nights-days a week with his father if the Applicant's living arrangements were to change.

[148]

The parties made progressive submissions during the proceeding as to the contents of the basket of "other supports" the Tribunal must have regard to. Much of the debate involved whether other supports should include building modifications, supports provided by other bodies and informal supports. The parties concurred by the end of the hearing that informal supports should be included, a position with which the Tribunal agrees. A difference of opinion between the parties as to whether home modifications form a part of the Tribunal's consideration of section 14 nonetheless remained.
The Applicant submits that "other supports" should include only the approved SIL supports and informal supports. The Applicant expressed those SIL supports as 24/7 supports at a 1:1 ratio. It was submitted by both parties that a presumed 1:1 ratio is appropriate because Robust SDA is not available in an apartment building type. The Tribunal accepts the parties' positions.
The Agency in its closing submissions argued that "other supports" should be broadly defined. Other supports should include supports provided by other service systems even if they are not currently provided. It should also include building modifications. The Agency highlighted the following supporting arguments:
- The Federal Court in McGarrigle has stated that the term "support" as it appears in section 14 of the Act "must be given a broad construction in this context... [I]t is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what section 14 contemplates is that the Agency will "fund" a support. The Agency cannot "fund" funding[143].
- In making the SDA Rules, the Minister is required to have regard to the need to ensure the financial sustainability of the scheme
- The approach of including supports provided by other bodies and not just the NDIS has been taken in previous cases by the AAT and ART[144] which included informal supports by family, friends and employers, capacity building and assistive technology supports
- The Tribunal has specifically included building modifications in other supports, in the matter of Winn and National Disability Insurance Agency [2024] AATA 3034, at [88]
In the Tribunal's view, other supports are made up of formal and informal supports the Applicant currently receives, and those other NDIS supports he would receive if successful in his application before the Tribunal. These are: including in-person NDIS funded 24/7 supports, capacity building supports, and informal supports from both parents.
Building modifications, in the Tribunal's view, are not to be included in the Applicant's "other supports". The Tribunal has accepted above that "design and subsequent changes or modifications" to an SDA property are explicitly excluded from the definition of "supports" in Schedule 2, Item 19(d) of the NDIS Transitional (Supports) Rules. The construction of Rule 14 requires that the basket of "other supports" be a singular and known basket of "supports" that are deliverable either within or in parallel with SDA supports. Section 14 asks the Tribunal to consider what SDA as a support adds over and above those in the known basket. To the Tribunal's mind, this necessarily excludes from the bundle any support that is excluded from the definition of NDIS support. In the Tribunal's view, building modifications form part of the analysis of alternatives to SDA after eligibility is established. Their relevance is therefore to the analysis under section 34(1), should the Tribunal be required to consider those provisions. Further, it is the Tribunal's view the basket of other supports should not include supports the Agency or another arm of government might hypothetically be open to after these proceedings have concluded. The Applicant has no building modifications approved and is not claiming them as part of this proceeding.

[158]

- Layout with areas of leaving or retreat for staff and other residents to avoid harm if required.
- - Consideration must be given to providing adequate space and safeguards throughout the property to accommodate the needs of residents with complex behaviours.

The Tribunal notes at the outset there is no evidence before it upon which it could reliably conclude that SDA as compared with the Applicant's other supports alone would better assist him to achieve his goals of increasing his overall health and fitness or enhancing his current skills and interests. The Applicant has a walking program at the gym and one for walking his dog. His interests revolve around watching movies, writing movie reviews and other online activities. His preferred activity is engaging with his iPad and has a high level of writing and analytical skills[145]. He can communicate verbally with very clear speech though at times cannot finish his sentences and needs to write them down[146]. He like animals, teaching others about the things he enjoys, going to the cinema and out to lunch[147] The features of Robust SDA that the Applicant is seeking could not be said to advance these pursuits.
The Applicant places greatest importance of the first of his goals. The Tribunal considers the application of rule 14(1)(a) allows for some flexibility in the Applicant prioritising some goals over others. However, that flexibility coupled with a holistic perspective does not extend to permitting the Tribunal to address only his first goal to the exclusion of the others. Further, while the Tribunal need not undertake a forensic inquiry in relation to section 14(1)(a), that the Applicant so firmly grounded his case in the impact of his disability on Ms Z and her consequential desire to secure a long term living option for the Applicant does necessitate closer examination of whether section 14(1)(a) is met in relation to this goal in particular.
On the available evidence and submissions[148], the Tribunal understands the intention of the Applicant's goal of living independently is to live independently of his parents, and particularly Ms Z given the impact of his disability on her mental health and independence. This is stated across the evidence. The below passages emphasise.
In his statement in support of his change of circumstances application, the Applicant says[149]:

[165]

The Tribunal notes that the Applicant currently lives in a suburban home, with neighbours on several boundaries and without soundproofing. He stays twice a week with his father, who lives in an apartment accessed via a lift. This evidence is detailed further below.
In written and oral submissions, the Applicant submitted that he could not live independently without security of tenure or without stable housing. In the Applicant's SFIC, it is contended furthermore that only SDA can provide the security of tenure the Applicant needs. It is contended that "SDA would provide security of tenure, not available in private rental or state housing, which is crucial to achieving the Applicant's goals"[155]. It was also stated in closing submissions by the Applicant's representative that living in a property where there is a risk of eviction due to the Applicant's behaviours will not support him to maintain his family relationships. The Tribunal has some difficulty with this last contention given Ms Z is, by her own application, the Applicant's limited guardian. This places upon her a legal obligation to maintain a relationship with the Applicant and uphold a duty of care to him such that effective decisions in his best interest regarding his living circumstances are being made.
As best as the Tribunal can understand the Applicant's argument, it is that any degree of housing uncertainty or any risk of needing to move for the duration of his lifetime, would prevent the Applicant from living independently of his parents, maintaining his relationship with his parents and achieving his other goals. There is no evidence before the Tribunal such that the Tribunal could accept this claim as plausible.
In the Tribunal's view, the comparative analysis required by section 14 must be conducted with reference to features or characteristics of SDA that are known, prescribed and preferred as a matter of law and policy, and not speculative ones. The use of "would" in the chapeau to section 14(1) indicates the Tribunal must reach a positive state of satisfaction of some certainty that SDA would better assist the pursuit of goals. That is, the Tribunal should not be satisfied based on conjecture but probative evidence. The SDA Pricing Arrangement[156] contains compulsory terms for SDA service agreements that include specifying matters such as the duration of the agreement, notices to vacate including where they are being asked to vacate for risk of harm to others and specifying the circumstances in which the agreement can be terminated. There is no reference to indefinite tenure or other directives to providers about lease duration. The Tribunal notes the Applicant was approved in January 2025 for public housing "priority 2 for a 2-bedroom, 1 bathroom" and that neither that application nor its approval have been given to the Tribunal. The Tribunal accepts the Agency's submission at hearing that any consideration of how the Applicant would experience accommodation other than the family home would be speculative because he has not lived outside that home.
The Tribunal accepts that greater housing stability may flow as a consequence of the provision of SDA as a support to a participant. Once the need for SDA is established and SDA support is provided, it can be expected that it will endure in many cases. However, tenure per se is not a specialised features of SDA to which the Tribunal must have regard. This view is consistent with the characterisation of SDA as a NDIS support and not a public housing product. It is also consistent with the legislative framework's approach to SoPS, which attaches the duration of the support to the funding period in the SoPS rather than directly to the support.
The preambular sections in the SDA Guidelines are informative in understanding the core features of SDA. The emphasis in bold is the Tribunal's.
In Quick summary, the SDA Guidelines state: "some people living with disability have very high support needs. This could mean they need to live in a specially designed home. We call this specialist disability accommodation... most participants don't need to live in specialist disability accommodation..." Similarly_,_ under "eligibility", the Guidelines note that "most participants don't need to live in a specialised home".
Under the heading "What is specialist disability accommodation" the Guidelines state that SDA is "a range of housing designed for people with extreme functional impairment or very high disability-related support needs... [SDA] is designed to be more accessible for your based on your disability support needs. It helps you live more independently in your home and allows your other supports to be delivered better or more safely. Homes or houses are enrolled as SDA dwellings only once it is evaluated as having been constructed in accordance with and meeting the standards and requirements of the SDA Design Standard.
Therefore, what distinguishes SDA from other housing, is that it is "specialised" and that specialisation arises from its physical design features and characteristics. It is not the tenure on which it is offered, or the lease terms and conditions or the availability of SDA housing relative to other housing types that makes SDA specialised. A participant's eligibility for SDA under the SDA Rules must be directly linked to the prescribed features of SDA and the participant's disability needs, not the supply problems in the broader housing market, including state government supply of disability-sequestered public housing.
The Tribunal's view of all the evidence before it is that the Applicant's neurological impairments are effectively managed in the home by in-person supports. The Tribunal's analysis in this regard is further detailed throughout the remainder of this decision.
At hearing, the Agency submitted that in carrying out the comparative analysis required by section 14, the Tribunal must consider the delivery of other supports in a range of hypothetical alternative housing scenarios because the Applicant had to be living somewhere. The Agency refers the Tribunal to an earlier AAT decision made prior to the October 2024 amendments to the Act in which it submitted that proposition had been accepted[157]. In the Tribunal's respectful opinion, to accept that proposition would be to insert an additional element to section 14(1) that is not apparent on its wording. Further, the Tribunal's respectful opinion is that the comparative analysis that section 14(1) requires can be effectively conducted without this additional interpretative device. The Tribunal refers to its opinion above that it is being asked to reach a positive state of satisfaction of some certainty and not engage in conjecture and to focus on how SDA design features might enhance the delivery of other supports. This is of course not to say that on the facts of the matter an Applicant's current or previous housing experience is not relevant to its consideration of the benefits SDA design elements might deliver. The Tribunal finds the evidence about how the Applicant currently lives to be relevant to its deliberations.
For all the above reasons, the Tribunal is not positively satisfied SDA combined with his other supports would better assist the Applicant to pursue his goal of living independently from his parents than his other supports alone.
The Tribunal now turns to the Applicant's remaining goal of "improving his ability to manage his emotions in order to socialise more". The Tribunal observes this is a capacity building goal. As the Applicant currently lives in a non-SDA home, the Tribunal looks to the evidence as to whether there are limitations in the delivery of supports in that environment that would be bettered by SDA design features, particularly the breakout room/escape space sought by the Applicant. It considers how capacity building support including behaviour support therapies and psychology would complement the delivery of in-person supports within a Robust SDA home.
The Applicant contends that he satisfies section 14(1)(a) in relation to all his remaining goals because only SDA provides security of tenure, and that security is essential to achieving all his goals. In the Tribunal's view this contention, if accepted, would render section 14(1)(a) otiose. As SDA is the only accommodation support funded under the legislative framework, section 14(1)(a) would be automatically satisfied in all cases. The Tribunal does not accept the submission.
Ms C, the Applicant's former school principal writes[158] that despite the Applicant having detailed behaviour and risks management plans, he displayed unpredictable physical and verbal outbursts. His behaviour was "very antisocial" and "it was impossible to take him out on community visits or excursions as he was so negative, abusive and loud"[159]. He established no friendships and his tolerance for others decreased rather than improved over time.
In April 2022, Occupational therapist Ms G states, in addressing section 14(1)(a) of the SDA Rules, that "an SDA property will provide [the Applicant] with an environment which assists him to manage his behavioural responses and in turn, an ability to socialise in a positive way with others"[160]. No rationale is provided for what is, respectfully, an insubstantial opinion.
Ms G states an SDA property will provide support workers the ability to seek respite and safety when the Applicant's behaviour escalates, reducing staff turnover and increasing their ability to form stronger relationships. Ms G does not identify, however, that the support workers she consulted reported to her that they felt unsafe in the home. Ms G notes only that if the Applicant is escalated, he will retreat to his bedroom, or if he remains in the common area, supports will remove themselves from that space[161]. In the Tribunal's opinion, Ms G has drawn unreliable conclusions about risks to support workers from Dr O-R's account of the Applicant's behaviour during her attempts to provide him medical treatment at her surgery[162]. Ms G concludes that an "appropriate environment", with consistent supports and additional time will reduce his emotional dysregulation and increase his functional capacity in all domains[163]. Ms G does not explain what she assessed to be an appropriate environment is or how it might differ from his current home. The Tribunal notes her report was written prior to the Applicant being provided with 24/7 supports and as it has noted above, in part based on reports written when the Applicant was in his pre-teen and teenage years.
Ms R is the behaviour support therapist who was retained to write a Positive Behaviour Support Housing Recommendations Report in April 2022. She states the purpose of her report is to provide information on the impact of the Applicant's current housing situation on his behaviours of concern and to make recommendations regarding future housing[164]. Ms R's report is based on interviews with the Applicant's supports. She reviewed eight documents, only two of which are before the Tribunal. She states that home observations were not possible due to the Applicant's engagement difficulties[165]. She does not elaborate. She reports that she met the Applicant on two occasions and observed very positive engagement by him with supports. She observed him to be clearly distressed by visitors in in the home and discussions about his support needs and his and his mum's health and well-being[166]. Ms R had difficulty engaging the Applicant in discussions regarding his needs and future plans. The Applicant was distressed by attempts to discuss his support needs and Ms Z's health and wellbeing[167]. Ms R is not identified by Ms Z as one of the Applicant's previous treating practitioners[168].
Ms R writes about the housing and support arrangements at that time. She opines[169]:

[167]

The Tribunal understands the current housing and support situation Ms R refers to is the Applicant living with him mother who at that time was providing the vast majority of in-person supports. She infers that the limitation arises from a focus on maintaining "the system" due to the carer burden on Ms Z[170]. She acknowledges that behaviours of concern are effectively managed through carer support. She is not suggesting there are limits on the Applicant's functional capacity and independence due to the design of the home.
Ms R states of the Applicant's capacity for social interaction that he has reduced ability to understand the perceptions and the impact he has on others but demonstrates some theory of mind and capacity to recognise the needs of others of people he knows. He requires intensive support in understanding and adhering to social rules and expectations and boundaries[171]. He feels overwhelmed when several people are talking together in the same room[172].
Ms R observes that the intensity of physical aggression and intimidating behaviours as well as escalations have decreased over the last few years[173]. There is limited analysis of the reasons or potential reasons for this change in pattern. There is the suggestion this is due to careful control of the environment however the Tribunal's respectful view is that Ms R's report substantially lacks inquiry into the reasons.
In his housing statement dated October 2022 the Applicant does not identify capacity building regarding his emotional regulation as an objective of SDA supports.
In his "supporting evidence form - home and living" (undated)[174] the Applicant states that a change in his living environment would improve his functioning. His mother's serious mental health concerns increase his anxiety functioning would be improved by moving into his own home where he feels safe and secure. Living with his mum is detrimental to his wellbeing.
In November 2022, Inhab Australia, SDA consultants write that SDA will afford opportunities for behavioural and capacity building support[175]. However, no further detail is provided.
Ms S is the Applicant's former support worker who cared for him at home and on trips away to give Ms Z respite. In July 2023, she writes that the Applicant strongly needs to be in his own home and for "things to go his way"[176]. She emphasises the careful planning that goes into her support and that it is difficult to work with him for more than two consecutive days. Ms S says the Applicant can be very intimidating, his behaviour in public can be very scary and that caring for him can be daunting. She does not state she has needed to escape from his presence in the home for fear of her own safety. Her emphasis is on the need for the Applicant to live on his own.
Ms B is the occupational therapist who has prepared a "functional capacity and support needs assessment"[177] for the Applicant. Ms B states she did not assess the Applicant due to the risk of harm to him of doing so. No letter of instruction accompanies her report and Ms B did not appear as a witness. The report includes an assessment of the Applicant's eligibility for SDA. Given the Tribunal's findings regarding Ms G's report, it places limited weight on opinions of Ms B that rely upon it. It also has concerns as to the extent to which Ms B reaches conclusions about the Applicant's functional capacity in the context of his impairments being neurological, the absence of relevant medical evidence before her, and those matters being outside of the field of occupational therapy. The Tribunal observes that Ms B does not engage in consideration of how the environmental factors in the family home may be impacting the Applicant. Ms B's opines[178] the Applicant may make relatively minimal functional gains "in some areas" in a stable and suitable single occupancy home and support model. She opines that to achieve "functional gains" he requires soft features to reduce the risk of him injuring himself, "a room that provides an optional sensory space" and "staff need their own space to retreat to, in order to maximise their physical and emotional well-being ". No rationale is provided for these opinions and whether and how they concern the ability to manage his emotions is not explained. Ms B opines regress areas are required to ensure staff can challenge the Applicant to engage in non-preferred activities[179]. No substance to this view is provided.
Ms F is the Applicant's current lead support worker. She provided a statement and gave oral evidence at hearing. The Tribunal found Ms F forthright. In her statement dated January 2025, Ms F outlines the Applicant's triggers and how she supports him to manage them in the home and in the community. The most common triggers involve electronic devices not working. Others involve cohabiting. She concludes the Applicant "can be lazy and stubborn. It can be difficult to implement any new routine or capacity building activity as he will recognise that it is different and shut it down"[180]. Asked what she meant by this, Ms F explained at hearing the Applicant will swear and get angry and refuse to do it.
Ms F stated she did not fear for her safety. She was not aware of the Applicant deliberately hurting anyone. She did not think he would wilfully hurt anyone, but said he does stomp and kick and flail when he is dysregulated and may hurt someone inadvertently. She was not aware of this having happened however. During such incidents she will talk to the Applicant to try calm him down. She does not leave the room and has never left the house. Ms F stated she did not provide care when the Applicant was with his father. She would drop him off only. She stated that both of his parents' places have minimal furniture to enable the Applicant to get to his room if he is dysregulated. Ms F said she supported SDA for the Applicant. She thinks he would be much happier in his own home with his support workers. He does not tolerate other people in the house and is paranoid. She thinks his behaviour has been better since he has had 24/7 care and his regular carers. She did not offer reasons for supporting SDA that went beyond the Applicant being able to live on his own.
Ms H is the Applicant's former behaviour support therapist. In her April 2024 response to targeted questions from the Agency[181], she states the Applicant "struggles to build and maintain social relationships, particularly close relationships. He requires intensive support to engage in safe, appropriate social engagements". She states that if he were not residing with family members, there is potential for some skill development and minor improvements in behaviour. "Despite [Ms Z's] attentiveness to [the Applicant's] support needs, [L]iving in a family home exposes him to regulate changes, sensory input, differing shared expectations and additional demands."[182].
Ms H describes the Applicant in the 2024 comprehensive behaviour support plan (CBSP) [183] as friendly with a great sense of humour and having the capacity to be "very sensitive and caring to those he knows well. He enjoys being busy and having something to do....[the Applicant] possesses numerous strengths including remarkable attention to detail and memory"

[169]

Ms H reports that behaviour support practitioners have initially been met with distrust but also with apology. She reports the Applicant strives for independence and dislikes feeling stupid. He often experiences deep remorse after a behavioural escalation. That said, he remains largely focused on himself and struggles to understand the perspectives of others. Ms H notes from the results of the Applicant's quality of life assessment using the INICO-FEAPS Scale that his lowest scores were interpersonal relationships, personal development and emotional wellbeing. She states he would benefit with support to build new social connections, increased support for medical care and health and continuing to develop better understanding and self-regulation of his emotions[184].
Mr G is the Applicant's current behaviour support practitioner. He completed a CBSP review in March 2025. The Tribunal observes the plan is by and large unchanged. Both CBSPs advocate for SDA for the Applicant substantially for reason he us unable to live with another participant.
In her December 2022 statement, Ms Z summarises the Applicant's treatment extensive since childhood, including psychiatric, psychological and OT treatment, opining that "the positive impact was minimal"[185].
In her July 2023 email to the Agency, Ms Z outlines her vision for the Applicant moving into an SDA home, which he owns for life, is in an area he likes to live in, is robust with double glazing throughout and has a range of purpose-built modifications for his height and EDS. She opines that after a few years with the appropriate technology, his therapy dog and possibly a student living with him in a private and soundproof room for some of the time, the Applicant's behaviour of concern will be minimal[186]. The Tribunal finds this opinion largely irreconcilable with Ms Z's evidence of the extremity of the Applicant's behaviours, including her description of the Applicant as violent and his inability to change.
In her April 2025 statement[187], Ms Z writes extensively about the barriers to having her own independence and relationships whilst the Applicant remains living with her. She sometimes engages overnight support for the Applicant, drives to a campground and sleeps in her car overnight to get away from the Applicant. In this 20-page statement, Ms Z's considered approach to selecting support workers is detailed. Beyond that, however, there is no evidence directed to the Applicant's capacity building goal and how that is being pursued.
At hearing, Ms Z stated the Applicant has no theory of mind, has never had a friend and that nothing more could be done for him other than to support him.
Ms Z spoke at hearing about the powerful relationship the Applicant had with his psychologist of seven years, who passed away unexpectedly at the end of 2024. She described the psychologist as the only person who could get through to the Applicant and build some capacity to understand people, including that all people were not evil. Ms Z explained that when the Applicant has de-escalated from anger he will try to make amends, apologise and think about different ways to deal with things though he has not been very successful. The Applicant developed capacity to relate to his parents with more warmth and love and they witnessed heartwarming changes The Applicant felt safe with his psychologist and did not act out. If he did something really bad, the psychologist would talk to him about it in a way that he did not feel told off but was able to understand there were things that he could not do. The Tribunal appreciates this has been a significant loss to the Applicant.
Ms L is the independent medical expert who conducted a functional capacity assessment for the Tribunal, reporting in September 2024[188]. Ms L's report is the only assessment report before the Tribunal in which the sources of information are clearly documented and attributed. Ms L has extensive expertise in physical rehabilitation and related areas. She explained at hearing her expertise in autism is largely gained through her role as an academic. The Tribunal has concerns regarding the reliability of Ms Long's opinions about the nature and extent of the Applicant's behaviours of concern, particularly due to her consultation with Mr W, a lay witness and associate of Ms Z and, her erroneous attribution of weight to his opinion as an expert. Further, that the account of Mr W is of an incident arising in circumstances known to risk giving rise to verbal abuse and intimidation by the Applicant, being his mother's visitors to the house and in which he is not central or prepared for. Whilst the account is indicative of the Applicant's behaviours in public or when there are visitors to the home, the Tribunal does not find it informative in assessing how the Applicant would behave if he were to be living on his own. The Tribunal also has concerns with Ms L's frequent characterisation of the Applicant as violent and reference to him having committed assault. Ms L explained at hearing she had had regard to the injury to the support worker at school. Ms Z clarified in her evidence this was an accident brought about by the room the Applicant was placed in being too small. The CBSPs speak, appropriately, of physical and verbal aggression. Violence implies some intention. The evidence before the Tribunal is that the Applicant has not to date engaged in physical assault and the psychiatric opinion is his behaviours are unintentional. The Tribunal's concerns with Ms L's assessment are further detailed below, in the Tribunal's consideration of the furniture supports. The Tribunal is otherwise accepting of Ms L's accounts of what she observed during the assessment.
Ms L states:

[171]

Ms L concludes given the extensive therapies the Applicant received as a child his behaviours of concern cannot be expected to change in the future. She concludes that no capacity building supports or assistive technology would reduce the Applicant's reliance on support workers.
Dr R states in July 2025 that the Applicant's "capacity to regulate stress, frustration or environmental change is severely impaired"[189]. He opines the Applicant requires a setting where stressor or triggers can be controlled, he is supported by staff with training and experience in working with people with his impairments and is tailored to reduce risk and harm and prevent him from deteriorating[190].
Considering the above evidence holistically, the Tribunal observes there are significant and unresolved discrepancies across the opinions before the Tribunal as to whether and the extent to which the Applicant's functional capacity to manage his emotions can be improved and what role, if any, the accommodation features he seeks in SDA would play in assisting him in that pursuit. There is no reliable assessment before the Tribunal dedicated to these questions and the consideration of how different accommodation types might assist. The evidence that favours SDA as better assisting him to improve his ability to manage his emotions is high level and piecemeal and in instances afflicted by reliability concerns. Some of the opinions in favour of SDA improving the Applicant's functional capacity rely on design features that go beyond the minimum requirements in Robust or other categories of SDA. None of the medical or clinical experts who have provided opinion about the Applicant's suitability for SDA have assured expertise or knowledge of what SDA does and does not entail. There is no persuasive evidence before the Tribunal that an escape route from the property or break out room because support staff are in danger, or sensory room for the Applicant are needed. The one resounding message from the evidence is the importance of in-person supports. It is acknowledged that Ms Z has made some changes to her home, but many of these concern features commonly available such as mixer taps and Bluetooth operated devices. Further, it is something of a long bow to connect such changes designed to reduce triggers and minor property damage to an increase in functional capacity. That view is also reflected in the opinion of the Ms H, who expresses concern at the emphasis of controlling the environment over capacity building.
The evidence before the Tribunal establishes that the Applicant's continued cohabitation with his mother is an environmental factor impacting his ability to manage his emotions. Yet the evidence does not reliably distinguish between the potential benefits of features of SDA and those that would arise simply from living on his own. It further does not distinguish between improvements being brought about by supports and improvements by moving out of the family home.
The Tribunal comes back to the purpose of SDA being the provision of a particular accommodation type and features to enhance the delivery of other supports with the objective of achieving the best possible outcomes for the participant. There is some evidence that an SDA home could be used to challenge the Applicant's boundaries, but this evidence is idealised and there are no strategies in the evidence to indicate this has been seriously pursued or in any way thought through. There is also contrary evidence that a conservative approach should be taken to embarking on such challenges within the home. There is no evidence before the Tribunal as to how SDA supports would intersect with the psychology supports that have stood out as being of greatest benefit to him and how the latter would support him, in tandem with his in-person supports, to transition to independent living and build to the extent possible his functional capacity in self-management and social interaction.
There is persuasive evidence before the Tribunal that the Applicant is a sociable young man who enjoys connecting with others in spite of the significant barriers he faces because of his impairments in forming and sustaining relationships. The goal under consideration reflects this aspect of his nature and his desire to maximise his potential in this regard. It seems to the Tribunal that the focus of the current support strategy for the Applicant and the argument for SDA for him in the future is largely unidirectional and towards minimising the triggers for his behaviours of concern. There is some evidence that to over-isolate the Applicant may be detrimental to him. There is no cogent evidence before the Tribunal that addresses, even if there were to be some reduction in his behaviours, how the Applicant would be supported to translate that benefit into functional capacity gains, if that is possible. The evidence before the Tribunal as to the Applicant's capacity to improve his emotional management is inconsistent and the most persuasive in support of his potential concerns simply moving out on his own with highly skilled supports. There is little before the Tribunal to persuade it that an objective of the request for SDA is to further his goal of improving his capacity for social interaction and self-management and how that would be achieved.
For all the above reasons cumulatively, the Tribunal is not positively satisfied that combined SDA and other supports would better assist the Applicant to pursue his goal of improving his emotional regulation to socially interact more when compared to other supports alone.

[179]

The Agency concludes that if the Applicant is unable to obtain accommodation enabling him to share overnight sleepover with another participant nearby, it will reconsider whether 1:1 support is reasonable and necessary[192].
In the Applicant's Reply to the Agency's SFIC, they state in relation to this support that they continue to reply on their original contentions[193]. They make no new contentions. However, in their further contentions on eligibility for SDA, they contend the Agency's proposed SIL model is unavailable and the Applicant could not reside in any SIL residence as "due to the way that both the accommodation and person-to-person supports are provided by the same provider, he would be unable to retain his current support team"[194]. The Applicant makes a series of factual claims about the importance of his current support workers and supports model[195] that can only be understood as being intended to infer the Applicant cannot reside in a SIL residence because a SIL provider cannot provide a suitable and safe standard of care to the Applicant. The Tribunal observes that it would be an error for it to entertain this contention and does not consider it further. The Applicant does not contend the Agency's proposed SIL model is unavailable due to supply shortages. In opening statements, the Applicant's representative contended the Applicant has been funded for 1:1 supports during the day because of his inability to respond to an emergency appropriately. She further contended "it does not follow [the Applicant] will be able to call for help from an overnight support person positioned outside of his dwelling, potentially assisting another participant, if an emergency would arise". In closing, the Applicant again emphasised the Applicant's claimed lack of capacity to identifying and responding to danger. The Tribunal accordingly understands the Applicant's key argument centres around the ability of the Applicant to respond to emergencies.
The Agency in oral submissions contended that the requested support of a dedicated, 1:1 overnight support worker rather than sharing the support with one other participant does not meet the requirements of sections 34(1)(c) and 34(1)(d) of the Act. That is, the support neither represents value for money nor will be or is likely to be effective and beneficial.
For the reasons below, the Tribunal is not positively satisfied the requested support meets the requirements of section 34(1)(c). As the requirements of section 34 are cumulative, it is unnecessary for it to continue to consider s34(1)(d) and the remaining sub-sections.

[211]

Ms Z explained in her June 2024 statement the Applicant experienced "continuous bullying from pre-primary onward [which] traumatised him a lot and caused him to become extremely reactive"[204]. There are a range of varying explanations as to what precipitated the onset of PTSD, however all concern experiences at school[205].
The Tribunal has a short video of the Applicant crying on the car ride home following a chance encounter in the community with former classmates. He is overcome with distress at having seen them and screaming that he will kill them and their families. The Tribunal accepts from this evidence the Applicant experienced deep distress and emotional dysregulation at being reminded of his time at school. The video is dated 14 October 2024. It accepts this is not the first incident of such threats. Dr O-R made similar observations. The Tribunal understands from the behaviour support and psychiatric evidence these are incidents of dysregulation, verbal aggression and intimidation rather than an intention upon which the Applicant intends to act.
In the Daily Supports Needs Journal, which covers the period 4 to 11 March 2024, there are no reported incidents identifying verbal abuse towards other people with disability. There is insufficient detail in the revised CBSP to understand the frequency of such incidents. The Applicant did not point the Tribunal to information about the frequency of such incidents.
Ms Z also claimed in her evidence the Applicant could not live in an apartment because of his behaviours. She claimed on a number of occasions the Applicant's father had been "thrown out" of several of his rental accommodations because of the Applicant's behaviours. The following passages from Ms Z when speaking of where the Applicant's father lives, relate. Although this evidence was led in the context of the Applicant's request for SDA and his ability to move within a home with hallways, the same claims are relevant to the feasibility of the Applicant sharing overnight supports and issues of suitable accommodation density for the Applicant within a SIL housing environment.

[220]

The Tribunal notes from the above passage that Ms Z unequivocally informed the Tribunal that the Applicant's behaviours are such that he cannot meet other people. She made the same claim elsewhere in her evidence, stating in effect that the Applicant could not meet neighbours as that always results in abuse.
The Tribunal notes Ms Z's equally unequivocal statements the Applicant's father had been unable to sustain a tenancy because of the Applicant's impairments, then indicating this conclusion was based on supposition.
Ms Z's evidence at hearing was that the Applicant is supported to participate in the community daily. This is reflected in the incident report data from January 2022 to May 2024[206], which show not only the Applicant's difficulties in coping with daily interactions in the community but his capacity to complete them nonetheless with in-person support focused on supporting him through the task and preventing significant escalation in aggressive behaviour through reassurance, distraction, being told his behaviour is rude or scary, redirecting him elsewhere and asking for an apology and a thank you. These strategies were confirmed by Ms F in her oral evidence. The data indicates his engagements take place in shops, cafes, parks, cinemas and other recreational areas. One incident report, for example, concerns swearing, frustration, anger and impatience when attempting to collect in person an online purchase his sister had made and asked him to collect on her behalf from a major retail store on Christmas eve. In the Tribunal's analysis of the incident reports, they demonstrate the Applicant's anger is frequently directed at his supports when he becomes overwhelmed by the complexity of the task, noise and the number of people. Where community members are involved, his verbal aggression often generally directed, and includes muttering under his breath and being offensive, rude and sarcastic in a loud voice for people around to hear. His physical aggression includes storming off, pushing past people, slamming an object on a table if in his hand, kicking things and banging his head[207]. There are no reports of police or security being called or the Applicant being asked to leave a public place. There are no reports of physical attacks on others. The incident data analysis in the reviewed CBSP indicates swearing, verbal aggression and intimidating behaviour are the Applicant's most frequent behaviours of concern and that approximately half of these incidents occur outside of the home. The Tribunal accepts the oral evidence of Ms Z and Ms F that incidences of swearing, verbal aggression and intimidating behaviour that occur within the confines of the home (eg glaring at Ms Z) are more frequent than the data reported because of carer fatigue and a degree of normalising but that where the event occurs outside the home, such as offensive comments on a person's race or disability, it is generally reported.
As the Tribunal has noted elsewhere it has no evidence from the Applicant's father despite overnighting twice weekly with him. In the incident report data from January 2022 to May 2024, the Tribunal noted approximately three reports of incidents of concern taking place while going to and from his father's apartment(s). Ms Z in her evidence did not put forward incidents of aggression or intimidation by the Applicant towards others during these stay overs.
The Tribunal was not directed by the Applicant's representative to expert evidence as to the capacity and suitability of the Applicant to reside in an apartment specifically. One of the limitations of the expert evidence regarding accommodation type is its singular focus on the Applicant living under his own roof. The Tribunal has accepted the position.
In further support of her claims the Applicant is unable to meet people, Ms Z submitted a letter from her neighbour and friend Mr J, dated March 2024[208]. Mr J did not appear as a witness in the proceeding.
The Tribunal gives weight to Mr J's statements therein about the Applicant's sensory impairments and resultant emotional dysregulation in social gatherings. It gives weight to his statement that he has often heard the Applicant screaming and shouting in the street upon returning from an outing and seen him slamming the doors of his support workers' cars and screaming in the back yard. It gives weight to the overall import of the letter that the Applicant is regularly emotionally escalated, loud, shouts, swears and screams, can be intimidating because of his physical presence, overall does not get on well with people and needs constant reassurance on things that would be relatively easy for others day to day. These latter observations are consistent with Ms Z's oral and written evidence before the Tribunal. The Daily Needs Journal from March 2024[209], for example, confirms the Applicant screams, shouts, swears and bangs objects in the home, particularly in his bedroom. It also confirms the Applicant is most often left to work through what has upset him until he de-escalates, supported by regular check-ins, guidance, a change in his activities particularly leaving the house or staying and watching a movie with his supports, and changes to the conversation.
The substance of Mr J's letter is however opinion from the perspective of a friend and supporter of Ms Z, writing about situations, events and contact with the Applicant that originate out of the friendship between the Mr J and Ms Z, of socialising by Mr J, his wife and children within the home of Ms Z and the Applicant, and expectations the Applicant should behave in ways that are inconsistent with his impairments. It contains speculation about the Applicant's behaviours potentially leading to violence against him in hypothetical situations to which the Tribunal gives no weight.
Mr J states:

[222]

The Tribunal notes Mr J wrote his letter not long after the introduction of 1:1 daytime supports for the Applicant. It does not contain Mr J's observations of how supports are working to assist the Applicant to manage his impairments, and in this way is incomplete. Its focus, to put it plainly, is to emphasise only all that is wrong. The above passage by Mr J does however indicate to the Tribunal that through the actions of the Ms Z, his informal support, Mr J and his family have acquired a level of understanding of the Applicant's impairments and whilst his behaviours are shocking, unpleasant, unexpected and sometimes intimidating they feel sufficiently safe to be in his presence provided he has skilled supports present. It implies the Applicant is effectively supported.
The Tribunal notes that Mr J's letter is relied on in several expert reports without this holistic, critical analysis and perspective.
For these reasons, beyond the aspects the Tribunal has given weight to above, the letter does not assist the Tribunal to understand the Applicant's likely behaviour were he to be in his own home within a SIL environment with 24/7 supports.
The Tribunal found Ms Z's own evidence about neighbour reactions to the Applicant to be contradictory. She reported to Ms R in 2022 that when people recognise the Applicant's disabilities they are understanding and accommodating[210]. In her oral evidence, Ms Z told the Tribunal the Applicant has anti-social behaviours in public however carers are adept at managing and mostly it is understood that he has a disability. In her email to the Agency dated July 2023 she explains that the community in the area of the old family home are understanding and tolerate his behaviour in public.
In the Tribunal's opinion, it is no small matter for an Applicant to claim that other people with disability cause him to experience PTSD for reason only of their disability and that consequently additional NDIS in person supports are required for him to in effect ensure he does not need to engage with them. The Tribunal accepts the claims are plausible however it requires persuasive expert evidence to establish that it is a finding it should make. The principle of non-discrimination against people with disability is the foundation of the Act. The Tribunal understands that is a delicate balance between the rights of the Applicant and any participants with whom he may share supports.
As the Tribunal has discussed above in the context of the Applicant's goal of improving his ability to manage his emotions, the expert evidence before it as to the capacity building provided to the Applicant, particularly in recent years, is limited. The evidence generally indicates the Applicant has opposing needs of socialisation and minimisation of triggers that require balancing, that his behaviours and sensitivity to others has improved, that he has compassion for vulnerable people and that his social interactions are well-managed by his supports. The Tribunal relies on that discussion and analysis here. Further, there is no expert evidence as to whether the Applicant has received support, formally or informally, targeted to specifically address his opinions and behaviours towards people with disability. There is also Ms Z's evidence of her own belief the Applicant can build capacity to require less support at night. There is her evidence at hearing that he was building capacity through the support he was receiving from his former psychologist.
For all the above reasons, the Tribunal concludes that it has insufficient, reliable expert evidence before it upon which it can be positively satisfied that the Applicant could not live in a SIL apartment or similar environment where he has his own dwelling because of a risk of harm his behaviours of concern pose to others, particularly other NDIS participants.
Considering and weighing these matters, the Tribunal is not positively satisfied the model of SIL proposed by the Respondent where the Applicant has his own unit, villa or apartment within a larger complex is not a feasible model.

[241]

The Applicant contends that his EDS acts as a trigger for the impairments for which the Applicant has been recognised.
The Agency contends the Tribunal should not take into consideration the impact of the Applicant's EDS on his functional capacity as there is no report before the Tribunal arising from a systematic assessment of what the Applicant can and cannot do because of his diagnosed EDS.
The note to section 34(1)(aa) directs the Tribunal to consider the impact of a compounding or contributing impairment[222] for which the requires in section 24 and 25 are not met. This is a more targeted inquiry than considering the interrelationship between the Applicant's neurological impairment and his medical condition of EDS.
The Tribunal accepts that the Applicant because of his physical impairment is unable to open bottles and cartons without assistance. It accepts the Applicant has difficulty using house keys and connecting power cords to sockets, difficulty drying his back, is unable to shave and cut his nails and frequently drops utensils and pills. The Tribunal accepts that when such events occur the Applicant's neurological impairment gives rise to heightened frustration and behaviours of concern may arise, including shouting, swearing, banging objects and kicking. Physical limitation with his fine motor tasks is identified in the CBSP as an internal trigger[223]. It accepts the Applicant may be escalated for a couple of hours, longer if he breaks the device such as a charger cord or USB, which occurs several times a month. Accordingly, the Tribunal accepts there is an interrelationship between the Applicant's neurological and physical impairments when the Applicant seeks to carry out tasks with his hands that require fine motor skills and experiences frustration when he is unable to do so, or unable to do in the way he would like because of his impairment of joint laxity and weakness. However, that there is a nexus between the Applicant's neurological and physical impairment in these circumstances does not mean that any support that might assist the Applicant to manage his medical condition of EDS is a necessary support in the sense required section 34(1)(aa). The requested support must address a need that is causally related to the section 24 impairments[224].
The Tribunal notes that a core purpose of an adjustable bed and recliner in a disability context is to facilitate transfers. The Applicant conceded at hearing he does not have impaired capacity to execute transfers and for which he requires NDIS supports. This is despite him reporting to Dr O-R in relevant joints.
The Tribunal notes that despite the abundant evidence about the setting events and triggers for the Applicant's behaviours of concern, there is no cogent evidence that the Applicant experiences pain whilst in bed or on the sofa or that pain is a trigger for his behaviours of concern. The Tribunal was not directed by the Applicant to specific incidents where pain had led to a reported event. Pain is not listed in the table of setting events and triggers in the CBSP[225]
The evidence in support of the furniture supports focuses on the potential long-term detriment to the Applicant's posture and joints. Ms G in April 2022 recommends the adjustable bed and mattress to reduce the risk of pressure injury and that a foam wedge would not enable the Applicant to comfortably use his iPad[226]. She recommends the recliner for similar reasons, adding it will enable him to position himself to support his weak core[227].
Ms Z gave evidence that an adjustable bed is required to support the Applicant with his posture, especially his neck given the amount of time he spends sitting up in bed on his iPad.
Ms L states the Applicant's postures in bed are not ergonomically safe[228]. She states prefers to lie down rather than sit up in a chair or sofa due to his reduced core strength and pain. The bed, mattress and chair will enable him to be "in a comfortable and well supported pain free position" and will support him to manage his behaviours of concern "because he will not be trying to cope with the demands of daily life while experiencing a constant background level of pain"[229]. At hearing, Ms L expanded, stating:

Legislation Cited (11)

Disability Insurance Scheme (Becoming a Participant) Rules 2016

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

Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2020

(Getting the NDIS Back on Track No 1) (NDIS Supports) Transitional Rules 2024

(Getting the NDIS Back on Track No 1) (Miscellaneous Provisions) Transitional Rules 2024

(Becoming a Participant) Rules 2016

(Supports for Participants) Rules 2013

Review Tribunal (Consequential and Transitional Provisions No](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024

Appeals Tribunal Act 1975

Review Tribunal Act 2024

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

Cases Cited (26)

ZGQF and National Disability Insurance Agency (NDIS) [2026] ARTA 477 (31 March 2026)

Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852

Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201

National Disability Insurance Agency v Davis [2022] FCA 1002

National Disability Insurance Agency v Foster [2023] FCAFC 11

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Beezley v Repatriation Commission [2015] FCAFC 165

Foster v National Disability Insurance Agency [2025] ARTA 718

Madelaine and National Disability Insurance Agency [2020] AATA 4025

Garcia Albiol and National Disability Insurance Agency [2024] AATA 496

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

Lampard and National Disability Insurance Agency [2024] AATA 3150

National Disability Insurance Agency v Lampard [2025] FCAFC 139

National Disability Insurance Agency v Jones [2025] FCA 877

Burrows and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 607

McGarrigle and National Disability Insurance Agency [2017] FCA 308

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

National Disability Insurance Agency v WRMF [2020] FCAFC 79

QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

Winn and National Disability Insurance Agency [2024] AATA 3034

HTDD and National Disability Insurance Agency [2024] AATA 725

National Disability Insurance Agency and Caterson [2026] FCA 287

National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181

Chief Executive Officer of the National Disability Insurance Agency v Eastham [2026] FCA 147

(2019) 266 CLR 250

(2015) 233 FCR 201