Johnstone and National Disability Insurance Agency (NDIS) [2025] ARTA 106 (17 February 2025)
Applicant:	Heath Johnstone
Respondent:	National Disability Insurance Agency
Tribunal Number:	2021/4617 and 2024/2616
Tribunal:	General Member J Toohey
Place:	Brisbane
Date:	17 February 2025

Decision:	1. The Tribunal sets aside the decisions under review and remits the matter for reconsideration in accordance with the direction that the statement of participant supports specifies that the reasonable and necessary supports include:
a)	An additional 18 days of Short-Term Accommodation for Respite per year;
b)	An additional 6 hours per week for a second support worker to assist with excursions; and
c)	Consumables funding for:
(i)	three two-way radios; 
(ii)	wheelchair mounted fans;
(iii)	spray bottles with electric heads; 
(iv)	medication roll packaging; and
(v)	dietary supplements.

2. All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro‑rata from the date on which the supports in paragraph 1 are included in the Applicant’s statement of participant supports until the reassessment date.
3. The management of funding for reasonable and necessary supports is to remain the same as the management of funding for those supports as specified in the Applicant’s existing statement of participant supports.
4. The date the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph 1 are included the Applicant’s statement of participant supports.

 .................................[SGD]...................................
General Member Justin Toohey

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Statement of Participant Supports – Reasonable and Necessary support – Getting the NDIS Back on Track Amendments – meaning of ‘generally’ in Transitional Rules – Short-Term Accommodation for Respite – Home Automation – Use of supports that involve risk – SCHADS Award – Reimbursement for approved consumables 

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013

Cases
Brown and National Disability Insurance Agency [2024] AATA 3318
David and National Disability Insurance Agency [2018] AATA 2709
FFNR and National Disability Insurance Agency [2021] AATA 3890
Gelzinnis and National Disability Insurance Agency [2021] AATA 3970
Johnstone and National Disability Insurance Agency [2023] AATA 3632
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Munday and National Disability Insurance Agency [2018] AATA 355
National Disability Insurance Agency v KKTB, by her litigation representative CVY22 [2022] FCAFC 181
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
O'Hearn and National Disability Insurance Agency [2023] AATA 4141
Warwick v National Disability Insurance Agency [2024] FCA 616
Secondary Materials
NDIS Operational Guideline: Assistive Technology published 20 December 2023 
NDIS Operational Guideline: Continence Support published 25 November 2024
NDIS Operational guideline: Disability-related health supports published 5 December 2024
NDIS Operational guideline: Nutrition supports including meal preparation published 13 October 2023
NDIS Operational guideline: Reasonable and Necessary Supports published 22 September 2024
NDIS Operational guideline: Short Term Accommodation or Respite published 24 June 2022
NDIS Operational guideline: Social and recreation support published 21 November 2024
NDIS Pricing Arrangements and Price Limits 2024-25 v1.3 published 1 October 2024 Social, Community, Home Care and Disability Services Industry Award 2010

Statement of Reasons
Quick SUMMARY
1.	As this this is a long decision, I am providing a quick summary. This summary does not replace the detailed reasons below. I have decided that the following supports should be added to the Applicant’s plan:
•	An extra 18 days (a total of 60 days) of Short-Term Accommodation for Respite per year,
•	An extra 6 hours per week for a second support worker to assist with excursions, 
•	Consumables funding for:
o	Three two-way radios, 
o	wheelchair mounted fans, 
o	spray bottles with electric heads, 
o	medication roll packaging, and
o	dietary supplements.
2.	The amount of short-term accommodation for respite is less than was requested by the Applicant. I consider this amount is reasonable and necessary because of the other supports approved which aim to reduce carer burden. This amount is also greater than currently approved by the Agency. Additional hours are supported by professional opinion and are value for money compared with the level of support worker hours required if Mrs Johnstone is unable to continue to provide care for the Applicant. I do not consider that the partial concession made by Dr Waugh, or the capacity building alternatives suggested by Ms S Yates, mean that there are lower cost alternatives that achieve the same outcome.  
3.	The six hours for excursions are also less than the ten hours requested. I consider that six hours is a safer duration for these excursions based on the recommendations of Dr Waugh. Other than the approved supports above, I have decided that the remaining supports are not reasonable and necessary based on the information before the Tribunal. I won’t comment on each individual support in this summary but will cover some of the larger items. 
4.	I have concerns about the Applicant’s use of the XT4 power wheelchair to access more remote locations as this was inconsistent with the recommendations for his heart health and the need to stay close to medical facilities. Once this intended use is removed, the remaining benefits are reduced. A number of these benefits can also be achieved with the Permobil F5 power wheelchair, though to a lesser extent. I am not satisfied that these remaining benefits represent value-for-money.
5.	I have also decided that the additional support worker hours for meal preparation is not reasonable and necessary. I am concerned that this support is unlikely to be effective. The approved dietary supplements are a better approach. If the Applicant wants to try to demonstrate the effectiveness of meal preparation, then he could consider using some of his additional support worker hours for excursions to trial this approach.   
6.	I have decided that home automation, including the front door, is not a reasonable and necessary support. The approved home modifications are intended to improve the Applicant’s ability to mobilise in his home. This should in turn allow the Applicant better access to the environmental controls and improved access through the widened door. Depending on the benefits achieved, and any further deterioration in the Applicant’s condition, the need for home automation can be reassessed in the future. At this stage, I do not consider that home automation is value-for-money.   
7.	Several of the requested consumable items are now prevented from being funded as they are not ‘NDIS supports’ under the new Transitional Rules. For other consumables, there was not enough information for me to be satisfied that these should be funded. The Applicant is entitled to reimbursement for approved consumables which have been purchase in the past. The period for potential reimbursement extends back to the start date of the original plan under review which was 14 January 2021.
DETAILED REASONS
8.	The issue before the Tribunal is whether the certain supports are reasonable and necessary and should be included in the Applicant’s statement of participant supports (SPS) under sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
9.	The Applicant is a 57-year-old man who lives with his spouse in Cairns. He is passionate about engaging in outdoor activities such as kite-flying, wildlife photography and bushwalking. He is also a keen volunteer with the State Emergency Services (‘SES’). The Applicant lives with a complex combination of significant physical, psychosocial and medical impairments. 
10.	On 14 January 2021, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Agency) approved a SPS. On 1 April 2021, the Applicant requested an internal review of the delegate’s decision. On 23 June 2021, the Agency varied its original decision. On 12 July 2021, the Applicant applied for a review by the Administrative Appeals Tribunal (AAT) under section 103 of the NDIS Act and section 25 of the AAT Act.
11.	The matter was remitted to the Agency for reconsideration under section 42D of the AAT Act on 7 June 2022 and 2 November 2023. The November 2023 remittal was accompanied by detailed reasons from SM Buxton regarding whether a section 42D remittal creates a new plan. These detailed reasons are published in Johnstone. Following this remittal, the Applicant sought a further review which became matter number 2024/2616. On 18 June 2024, the Tribunal ordered that both matters be heard together.  
12.	On 29 July 2024, the matter was constituted to me, and I proceeded to hear the matter on 16 to 24 September 2024. The Applicant represented himself with support from his spouse. The Agency was represented by Counsel, Genevieve Yates. As adjustments for the Applicant, the hearing was run over several days with a shorter duration per day and with the opportunity for frequent breaks. The hearing was also held by video so that the Applicant was able to attend from his home.   
13.	Following the hearing, both parties were provided with the opportunity to make written submissions addressing the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Back on Track Amendments) which commenced on 3 October 2024. Final submissions were received on 11 November 2024. 
TRANSITION TO THE ADMINISTRATIVE REVIEW TRIBUNAL 
14.	On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.   
GETTING THE NDIS BACK ON TRACK AMENDMENTS
15.	The Back on Track Amendments made significant changes to the NDIS Act and commenced on 3 October 2024. The new section 32A of the NDIS Act sets out that there are now two kinds of plans: being ‘new framework plans’ and ‘old framework plans’. The new section 32B provides for the making of rules for classes of participants that are to have new framework plans. The new section 32BA provides for giving a notice of impairments and that rules may be made for when this notice must be given in relation to existing participants. Rules for the purposes of section 32B and 32BA have not yet been made.
16.	Section 129 of the Back on Track Amendments deals with the application of the amendments to the content and approval of ‘old framework plans’ and states that:
sections 33, 34 and 35 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after that commencement.
 	(a) whether the participant becomes a participant; and
(b) in the case of a variation—whether the plan comes into effect; 
before, on or after that commencement. 
17.	The Tribunal on review is now considering whether the statement of participant supports included in an old framework plan should be approved or varied. I will therefore apply the amended considerations in sections 33, 34 and 35 during my decision-making. 
New section 34(1)(aa)
18.	The amendments insert a new section 34(1)(aa) that must be satisfied for a support to be considered reasonable and necessary and requires that: 
the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25).
19.	Two notes were also added with section 34(1)(aa) which say:
Note:  For the purposes of paragraph (aa):
(a)  the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)  a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
20.	According to the allied health reports, the applicant is impacted by a range of complex ‘interrelated medical, physical, and psychosocial issues’. These issues are extensive and I will not repeat all of them here. They include: 
•	Physical impairments related to motor vehicle accidents with additional degeneration of the spine and subsequent musculoskeletal injuries: thoracic vertebra fractures; lumbar spine dislocation; multiple disc bulges; spinal cord damage; and left knee damage.
•	Medical conditions: particularly in relation to heart failure, with multiple and serious acute cardiac events (heart attacks) and chronic angina; and obstructive sleep apnoea. 
•	Psychosocial disabilities; especially ADHD, ASD, and depressive disorders. His symptoms have become more severe due to medication being ceased due to cardio toxicity. The resulting impacts include impaired executive function; difficulty with problem solving, attention and focus; impaired memory; rigid and literal thinking; hypervigilance and anxiety; fluctuating depression symptoms; and sensory integration issues e.g. with food tastes and textures.
21.	Currently the Agency states that it: 
… has determined that the Applicant has met the disability requirements for impairments arising from diagnoses of ‘other physical’, relating to a spinal injury, ‘other’ psychosocial disorder, major depressive illness and autism spectrum disorder.
22.	The Agency accepts that each of the requested supports satisfy section 34(1)(aa) on the basis that they each relate to the impairments which have met the relevant access criteria. The Applicant agrees, and I am satisfied that this is the case. 
New section 34(1)(f) and transitional rules
23.	The amendments also added section 34(1)(f) which requires that the support is an ‘NDIS support’ for the participant. This in turn applies the new definition of NDIS support in section 10. Section 10 provides that rules may be made that declare whether a support is (or is not) an NDIS Support. Section 124 of the Back on Track Amendments states that the reference to rules made under section 10 includes rules made under section 138 of the Back on Track Amendments, which allows the Minister to make transitional rules. 
24.	The Minister has made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules) and these rules also commenced on 3 October 2024. The Transitional Rules set out supports that are (and are not) NDIS supports. 

25.	The Minister has also made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Transitional Rules). Section 7 of the Miscellaneous Transitional Rules requires that a decision-maker must also be satisfied the support is most appropriately funded or provided through the National Disability Insurance Scheme, and not more appropriately funded or provided through other general systems of service delivery or support services. In effect, this means that decision-makers are (at least until new rules are made) applying two versions of section 34(1)(f), as it was before the amendments as well as the new version as amended.  
26.	The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules) also remain in force and specify several matters that are not the responsibility of the NDIS to fund. The Agency submits that some of the supports in dispute are impacted by the Transitional Rules and I will return to this in considering these individual supports. The Applicant does not agree and submits that:
… the use of the term “generally” in Schedule 2 (“Supports that generally are not NDIS supports”) implies that the items listed within this schedule are not subject to strict, inflexible adherence. The inclusion of “generally” demonstrates that while these items are typically not considered NDIS-funded supports, this is not an absolute rule as “generally” is “something happens or is used on most occasions but not on every occasion”. [emphasis in original] 

27.	At first glance, the headings in Schedule 2 which say ‘generally are not NDIS supports’ do seem to imply that there could be circumstances in which supports that are not generally NDIS supports could however be a support for a specific participant. However, the meaning of ‘generally’ in this context is informed by the rule-making provision in section 10(4) which states:
The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:
 (a)  participants or prospective participants generally; or
 (b)  a class of participants or prospective participants.  
28.	When read together with section 10(4), it is clear to that the term ‘generally’ is used in the sense of applying to all participants as compared to a class of participants, rather than in the sense of applying in ‘most circumstances’ or similar. Rule 5(2) of the Transitional Rule underscores this interpretation, stating that:
Supports that generally are not NDIS supports
(2) For the purposes of subsection 10(4) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 2 to this instrument is not an NDIS support for any participant (subject to subsection 10(6) of the NDIS Act) or prospective participant. [emphasis added]
29.	Section 10(6) does provide some limited circumstances in which the CEO may determine that a support declared as not being an NDIS support could still be support for a participant (if it replaces an NDIS support and achieves the same or better result for the same or lower cost). These are described as ‘replacement support determinations’ and are dealt with in Part 3 of the Transitional Rules. A section 10(6) determination in not listed as a reviewable decision in section 99 of the NDIS Act. It is not clear whether the Tribunal on review can make such a determination. If it did so, it would need to be as an exercise of a power or discretion under section 54 of the ART Act, which states:
For the purposes of reviewing a reviewable decision, the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act.
30.	Neither party has submitted that the Tribunal could or should exercise such a power and I have not considered this issue further. I note that section 43 of the AAT Act, which is  equivalent to section 54 of the ART Act, has been the subject of judicial guidance from the Federal Court. While I am not expressing a view on the availability of section 10(6) to the Tribunal, I do consider that section 10(6) not being a reviewable decision lends some support to the interpretation that parliament intended to limit the discretion available to decision‑makers in respect of supports that have be listed in Schedule 2 of the Transitional Rules.  
31.	From this analysis, it is my view that the Transitional Rules apply in a way which means that, if a requested support is listed in Schedule 2 as one of the supports that are generally not  NDIS supports, the Tribunal is not able to include this support in a SPS. The Applicant’s submissions on this point are repeated in relation to several of the disputed supports. Having considered this issue here, I won’t repeat this finding in respect of the individual supports discussed below.
New section 33(5)(g)
32.	The new section 33(5)(g) requires decision-makers to have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant. As section 129 of the Back on Track Amendments applies this provision to old framework plans, it must be considered. However, section 133 states that: 
Section 46 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, applies in relation to:
(a) a participant who receives an NDIS amount, including because of subsection 46(1A) of that Act, on or after that commencement; or
(b) a person who receives an NDIS amount on behalf of a participant, including because of subsection 46(1B) of that Act, on or after that commencement; 
whether the participant becomes a participant before, on or after that commencement.
33.	Therefore, the new section 33(5)(g) only applies to the acquittal of NDIS amounts received after the commencement of the Back on Track Amendments. The parties did not make any submissions about the acquittal of such NDIS amounts. The consumables requested have previously been processed by the Applicant’s plan manager. At some stage, purchases will be subject to the new acquittal requirements. At this point in time, I do not have sufficient information to make any finding in relation to the acquittal of NDIS amounts received after 3 October 2024.    
ISSUES
34.	The issues before the Tribunal are whether the following are reasonable and necessary supports for the Applicant:  
(b)	Additional short-term accommodation (STA):
(i)	for carer respite; and 
(ii)	to participate in State Emergency Service (SES) events;
(c)	Additional support worker hours for:
(i)	excursions; 
(ii)	SES weeknight meetings;  
(iii)	SES weekend training; and
(iv)	meal preparation. 
(d)	An XT4 Powered Wheelchair, accessories and insurance; 
(e)	Home automation, including door automation and environmental controls;
(f)	Additional support coordination hours; and 
(g)	A range of consumables including: 
(i)	an e-Ink Reader; 
(ii)	iPad;
(iii)	subscription to ‘Spendable’ application;
(iv)	subscription to ‘ChatGPT’ application;
(v)	two-way radios;
(vi)	continuous positive airway pressure (CPAP) mask and accessories; 
(vii)	wipes for pressure sores;
(viii)	medication roll packaging;
(ix)	enemas; 
(x)	face masks;
(xi)	dietary supplements;
(xii)	specialised umbrellas;
(xiii)	wheelchair mounted fans;
(xiv)	spray bottles and electric spray bottle heads;
(xv)	other cooling aids; 
(xvi)	cooler bags for wheelchairs; 
(xvii)	straps and accessories for wheelchairs; and
(xviii)	walking sticks.
35.	At the start of the hearing, the Agency advised that several issues had been fully resolved, or partially resolved subject to provision of receipts. I have not included the matters that were fully resolved in the list of issues above. However, several of the consumable items listed above subsequently re-emerged as issues in dispute due to disagreements about reimbursement amounts. These items were not the subject of oral evidence or submissions at the hearing. On 1 October 2024, the parties confirmed that the consumable items not dealt with at the hearing could be determined without a further hearing and I have agreed to proceed on this basis.
Overview of the NDIS decision-making framework
36.	Chapter 1, Part 2 of the NDIS Act sets the Act’s objects and principles including, for example, that the NDIS Act is to support the independence and social and economic participation of people with disability, and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme. 
37.	Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance includes that this planning process should, so far as reasonably practicable, be directed by the participant, and be underpinned by the right of the participant to exercise choice and control over his or her life. 
38.	A participant’s plan must include a statement of the participant’s goals and aspirations as well as a statement of participant supports that includes the reasonable and necessary supports that will be funded by the Agency. In deciding to approve a statement of participant supports, the Agency must have regard to the matters set out in section 33(5), including applying the NDIS rules, and be satisfied that each support meets the criteria in section 34. The criteria in section 34(1) are that:
(aa)  the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements …
(a)  the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)  the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)  the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)  the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)  the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)  the support is an NDIS support for the participant.
39.	The Support Rules provide greater explanation of the application of the criteria in section 34. For example, in relation to assessing value for money, Rule 3.1 says that a decision‑maker must consider:
(a)  whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)  whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)  whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports).
40.	The NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so. The relevant operational guidelines  are: 
•	Assistive Technology published 20 December 2023 (Assistive Technology Guideline); 
•	Continence Support published 25 November 2024 (Continence Guideline);
•	Disability-related health supports published 5 December 2024 (Health Supports Guideline);
•	NDIS Pricing Arrangements and Price Limits 2024-25 v1.3 published 1 October 2024 (NDIS Pricing Arrangements);
•	Nutrition supports including meal preparation published 13 October 2023 (Nutrition Guideline);
•	Reasonable and Necessary Supports published 22 September 2024 (Supports Guideline);
•	Short Term Accommodation or Respite published 24 June 2022 (STA Guideline); and
•	Social and recreation support published 21 November 2024 (Recreation Guideline).
Summary of Evidence 
41.	The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing. I will not list the items provided in this very large bundle of documents (five volumes with 2,604 pages). Some of the documents of particular significance to the issues in dispute included:
(a)	the ‘T-documents’ and supplementary T-documents; 
(b)	a report from Dr Kevin Ng, cardiac electrophysiologist, dated 31 July 2020;
(c)	occupational therapist letters and reports from:
(i)	Deborah Ford, dated 30 and 31 November 2023;   
(ii)	Janette McGregor, dated 7 May 2022, 24 July 2023, 14 and 15 April 2024, and 13 June 2024;  
(iii)	Joel Widmer, dated 28 November 2023 and 1 May 2023;
(iv)	Susan Yates, dated 4 December 2022 and 3 April 2024;
(d)	reports from Dr Stacey Waugh, general practitioner, from 15 November 2019 to 18 April 2024;  
(e)	quotes from Ausnorth Building and Construction, dated 25 July 2023, and Northern Connections, dated 28 November 2023; 
(f)	statements from the Applicant’s spouse, from October 2021 to June 2024;
(g)	a letter of support from Lindsay Payne, Owner/Operator of Disability Support & Tours Queensland, dated 1 December 2023;
(h)	dietician reports from Julietta Close in August 2021 and January 2022, and Eleni Georgiou provided on 1 July 2024; 
(i)	letters from David Harvey, clinical psychologist, dated 1 March 2021, 29 August 2021 and 9 February 2022; and 
(j)	a support coordinator letter from Suzette Edge dated 10 September 2024.
42.	In addition, the Tribunal allowed two items, which were not included in the joint hearing bundle, to be added as individual exhibits by the Agency on the first day of the hearing, being:  
(a)	a plan approved on 13 September 2024 and cover email; and
(b)	a plan funding breakdown and cover email, dated 15 September 2024. 
43.	The Applicant sought to add a document on the final day of hearing titled: ‘Annexure A to Statement of Heath Johnstone dated 23/09/2023’. This document was a table of locations that the Applicant would like to access using the XT4 wheelchair, travel times and distances to the nearest ambulance service or hospital, derived from Google Map searches conducted by the Applicant. This document was not added as evidence before the Tribunal, however the Applicant was able to display and ‘speak to’ the table during his closing submissions.  
44.	The Tribunal also had the benefit of written submissions from the parties. The Applicant’s written submissions were extensive (338 pages). At the hearing, oral evidence was received from:
(a)	the Applicant; 
(b)	the Applicant’s spouse, Catherine Johnstone;
(c)	Dr Stacey Waugh, general practitioner; 
(d)	Deborah Ford, occupational therapist;
(e)	Eleni Georgiou, dietician;
(f)	Suzette Edge, support coordinator;
(g)	Janette McGregor, occupational therapist; and 
(h)	Susan Yates, occupational therapist. 
CONSIDERATION
Applicants’ goals and aspirations
45.	Section 33(5)(a) of the NDIS Act says that, in deciding whether or not to approve a statement of participant supports, decision-makers must have regard to the participant’s statement of goals and aspirations. On 2 October 2024, The Tribunal was provided with a copy of the Applicant’s most recent plan which describes the Applicant’s goals as:
•	Your goal: During this plan, I would like to actively participate in community and social activities, e.g. SES, neighbourhood watch, public events. 
•	How will you work towards this goal? I will work with my supports to attend SES gatherings and training; neighbourhood watch and other outings. I will explore activities of interest further regarding photography and wildlife and will join groups. 
•	Your goal: During this plan, I would like to maintain and improve my independence with activities of daily living and ensure my wife Catherine is not solely responsible for this. 
•	How will you work towards this goal? I will be supported to perform the Activities of Daily Living (ADLs) as independently as possible. I will engage in therapies, day programs and other activities that promote independent skill building. I will have support workers to assist me when Catherine needs to or wants to do something on her own to get a break. I will have supports to help me clean and maintain a tidy home as Catherine does not have time or energy for this due to her own health issues and working full-time and supporting me at other times.
•	Your goal: During this plan, I will have access to allied health specialists and equipment to improve my physical and mental wellbeing. 
•	How will you work towards this goal? I will work with my support coordinator to connect with appropriate allied health professionals and work with my staff and informal supports to implement strategies to achieve this goal. I will have access to an OT to help me problem solve and streamline processes at home and in the community (e.g. SES).
•	Your goal: During this plan, I would like to pursue my interests and hobbies, especially being active outdoors independently of my wife/ informal supports. 
•	How will you work towards this goal? I will work with my supports both formal and informal to explore and attend activities of interest. By working on my health so I am able to attend more events and activities such as SES.
46.	I have had regard to these goal and aspirations and will refer to these as relevant to the consideration of individual supports below. 
Previous plans
47.	For completeness I note that the parties have at times made submissions regarding section 33(5)(f) and the operation and effectiveness of previous plans. For example, the Applicant points to his previous expenditure on consumables to show that the $3,000 budget currently approved by the Agency will be insufficient. The Applicant also highlights that previous attempts at shorter durations, or less frequent stays, in STA for respite have been ineffective. The Agency questioned the utility of meal preparation in circumstances where the Applicant and Mrs Johnstone ate meals together at a restaurant and said that this demonstrated that the previous plans had operated effectively. I have had regard to these and similar submissions on the operation and effectiveness of previous plans. 
Support (a)(i): Additional short-term accommodation (STA) for carer respite
48.	The Applicant seeks 84 days per year of STA to provide his spouse, Mrs Johnstone, with respite. Prior to the hearing the Agency agreed to fund 42 days per year. In summary, the Applicant submits that:
There has been a significant change of circumstances in our situation, as Catherine's health has alarmingly deteriorated due to the compounded effects of Fibromyalgia and Chronic Fatigue Syndrome, exacerbated by severe burnout from a caregiving burden far beyond her capacity. This concerning development underlines the urgent need for more extensive Short-Term Accommodation (STA) supports. The intense physical and emotional strain she endures daily, juggling her health challenges with the relentless demands of caregiving, is unsustainable and poses a serious risk to her well-being. This escalation in her health condition is a stark reminder of the critical need for additional support, not only to preserve her health but also to ensure the continued quality care that I require. The provision is crucially necessary to prevent further decline in Catherine’s health and to uphold our shared quality of life. Because of this significant change, experts such as OT Janette McGregor and Dr Stacey Waugh have re-evaluated our needs and re‑assessed accordingly. Catherine’s latest Carer Impact Statement also explains the reasons for our need for this significant support. [emphasis in original]
49.	Ms McGregor’s 24 July 2023 report focuses on this issue and recommends 1 week per month of STA with 24/7 1:1 formal support. In arriving at this recommendation, Ms McGregor makes several observations including that:
•	Assessments using the Zarit Burden Interview indicate a severe burden and high risk of carer burnout; 
•	Outside of the 10–14 hours per day of formal supports, Catherine is the Applicant’s sole carer which requires 100% vigilance due to the unpredictability of his cardiac events;   
•	Catherine undertakes household cleaning tasks as the Applicant’s formal support must remain with him;  
•	Catherine also completes many NDIS administration tasks as support coordination hours are inadequate;   
•	3 nights per month of STA is insufficient for Catherine’s recovery; and,
•	preparing for the Applicant to attend respite can take up to a week and is an exhausting task.  
50.	In conclusion, Ms McGregor states that: 
the current situation is beyond what is reasonable for an individual to cope with … there is a very high risk that Catherine’s [health] will deteriorate, and she will not be able to provide ongoing informal care. The situation has the potential for [sic] become a crisis and lead to inappropriate institutionalisation or the need for increased NDIS funding for 24/7 in-home support … which does not represent value for money.  
51.	In agreeing with Ms McGregor’s recommendation, Dr Waugh (who was, at the time, both Mrs Johnstone’s and the Applicant’s treating GP) further observes that the Applicant:
is very aware of and effected [sic] by Catherine’s depressed mood and physical and mental exhaustion. Heath’s relationship with his wife is fundamental to his wellbeing. The breakdown of his relationship would be highly detrimental to Heath’s health and would also necessitate an inordinant [sic] increase in his support needs.
52.	This conclusion is also supported in Dr Waugh’s letter dated 18 April 2024, in which she states: 
Catherine suffers from chronic fatigue syndrome and fibromyalgia which leads to persistant [sic] fatigue and body pain aggravated by stress. These conditions are permanent and medical treatments trialed [sic] previously have failed. The only way to manage this condition is to minimise stress and allow for adequate rest. The physical and mental burdens that Catherine is trying to manage are beyond what she can cope with which has lead [sic] to deterioration. 
53.	In her statement, Mrs Johnstone describes trialling two nights and three nights per month of respite in 2022 and how these trials were not successful due to insufficient recovery time needed whilst also catching up on housework and administration. With regards to trailing seven nights per month, Mrs Johnstone said that this: 
does appear to be much more beneficial than 2 or 3 nights, as it allows for a full cycle of a working week as well as a full weekend and I could pace myself throughout the 7 days, rather than having to squeeze everything in to only 2 days. This allows me to go to bed early or sleep in if I need to, without sleep being interrupted by Heath’s needs in my caring role.  
54.	The Agency relies on the supplementary report of Ms S Yates dated 3 April 2024 in which she concludes:
It is acknowledged that Mrs Johnstone is experiencing significant issues associated
with the care of her husband. High levels of in home and STA support is included in Mr Johnstone’s current NDIS plan. Seven days of short term accommodation per month is not consistent with the NDIS operational guidelines and is not considered to be reasonable or necessary on an ongoing basis.

It is unclear whether Mr Johnstone is receiving capacity building supports such as
psychological and occupational therapy interventions which would assist him to
understand the impacts of his disability and behaviours on his wife and to develop
strategies to become more independent and reduce his dependence on her. These
interventions would be recommended.
Given the level of stress and the required organisation for Mr Johnstone to attend weekend STAs on a monthly basis, it may be more appropriate to consider a longer period of STA respite on a less frequent basis for example 4 days of respite every six weeks or 6 days every 8 weeks instead of 3 days every four weeks.
55.	The Agency submits that, as the Applicant has not trialled a longer period of STA on a less frequent basis, and that the Applicant has funding for the recommended capacity building supports, the requested additional STA is not reasonable and necessary, and is not value‑for‑money. The Agency acknowledged that Dr Waugh considered Ms S Yates’ recommendation for capacity building to be ‘unrealistic’ but submitted that the basis for Dr Waugh’s conclusions on this issue was unclear.  
56.	In reply, the Applicant raised numerous concerns with Ms S Yates’ opinion, including that her opinion was based on a single assessment and should not be preferred over his long‑term treating professionals. The Applicant also outlined the capacity building supports that he and Mrs Johnstone had been actively engaged in and submitted that such capacity building supports would not address the underlying nature of their chronic conditions.
57.	The Applicant also submitted that this frequency and duration of respite is better value for money when compared with the possibility that Mrs Johnstone can no longer care for the Applicant, which would then require the NDIS to fund 24/7 1:1 support workers. In the cost comparison in the Applicant’s submissions, this level of support worker funding would cost around $400,000 per year. This figure was not contested by the Agency. 
58.	During oral submissions, the Applicant drew the Tribunal’s attention to page 2474 of the Joint Hearing Bundle, which was a table summarising his STA stays between February 2023 and August 2024. The Applicant submitted that this demonstrated the range of nights stayed and frequency between stays that had been tried over this period. During his oral evidence, the Applicant conceded that this table did not show that the Applicant had  trialled longer periods of respite on a less frequent basis. The Applicant also stated that he had undertaken an intensive course of Dialectical Behaviour Therapy (DBT) with his Psychiatrist Dr Trott.  
59.	In her oral evidence, Mrs Johnstone expanded on the difficulties with preparing for STA, including that: support workers need her to explain the packing list and how the items are to be properly packed and, if items are missed or incorrectly packed, this becomes traumatic for her and the Applicant. Mrs Johnstone also stated that, during the Applicant’s seven‑night respite stay, it was usually around day five when she begins to feel some recovery from her carer burden. In terms of the duration between respite, Mrs Johnstone said that periods greater than four weeks resulted in her being too exhausted, such that seven days respite was not enough. In response to questions from the Agency, Mrs Johnstone could not recall if they had trialled longer periods, less frequently, such as five or six days every six weeks. Mrs Johnstone agreed that, if the Applicant commenced respite on a weekday or Saturday, that she would not need to be present while formal supports assisted with the packing.    
60.	In her oral evidence, Dr Waugh stated that she had been treating Mr and Mrs Johnstone for several years and expanded on the deterioration of Mrs Johnstone’s health in the past two years with worsening fatigue, fibromyalgia and depressive symptoms. Dr Waugh described Mrs Johnstone as in a chronically and severely depressed state most of the time, with panic attacks and insomnia. During questions from the Agency, Dr Waugh agreed that, if Mrs Johnstone had additional hours to herself in the evening, then the frequency of respite could be every second month. Dr Waugh also explained that: the Applicant’s ADHD was no longer able to be medicated due to his heart condition; and that the Applicant’s long‑standing behaviours associated with his ADHD and ASD were not likely to change through further capacity building supports.      
61.	The parties did not have many questions for Ms McGregor about respite. Ms McGregor did explain that her opinion was informed by her experience both as an occupational therapist and registered nurse. Ms McGregor described a level of hypervigilance as contributing to Mrs Johnstone’s carer fatigue. Ms McGregor did not agree that less frequent respite would be sufficient if Mrs Johnstone had a few more hours in the evening without the Applicant or support workers in the house. In Ms McGregor’s opinion, this was due to the anticipation of the Applicant’s return and need to settle him back into the evening routine. 
62.	Ms S Yates explained that the capacity building supports she would recommend included cognitive behaviour therapy and behaviour management planning with a mental health occupational therapist or psychologist. Ms S Yates confirmed her opinion that the requested respite was excessive. I offered Ms S Yates an opportunity to explain the basis for her disagreement with the opinion of Dr Waugh and Ms McGregor regarding the need for seven days respite per month, however Ms S Yates did not expand on the basis for her view.
63.	I am not satisfied that capacity building interventions are a lower‑cost alternative that would achieve similar outcomes. As I discussed in the decision of Brown, where the Agency is submitting that there is an alternative that will achieve the same outcome at a substantially lower cost, the Agency should seek to provide information in support of this contention. Without this information, the Tribunal might not be able to be satisfied that the availability of this alternative means that the requested support is not value for money. In this instance, the Applicant has provided information about his previous engagement with capacity building and evidence from his treaters in support of his contention that capacity building is not likely to reduce the demands on Mrs Johnstone. I am not persuaded that Ms S Yates’ opinion should be preferred over those of the Applicant’s treaters.   
64.	The Agency does not submit that STA is excluded under the Transitional Rules but does observe that it is a matter for the Tribunal to assess the relevant NDIS Act provision and rules in its decision. Schedule 1, Item 5(b) states that ‘supports for short term accommodation and respite’ are NDIS supports unless otherwise provided. STA for respite is clearly contemplated as an available support in the STA Guideline, which states that:
•	Short Term Accommodation funding can be used for respite to support you and your carers. This gives your carers a short break from their caring role. 
•	Usually, we fund up to 28 days of Short Term Accommodation per year. You can use your Short Term Accommodation funding flexibly. For example, you might want to use it in a block of up to 14 days at a time or for one weekend a month. 
•	We’ll consider the risk to you and your family’s wellbeing if they continue to support you (without Short Term Accommodation). We also look at how the support provided by your family and networks affects your independence. We compare this to the independence and opportunities Short Term Accommodation may provide.
65.	I do not agree with Ms Yates’ opinion that the seven days of respite per month is inconsistent with the STA Guideline and therefore not reasonable and necessary. In my view, the STA Guideline should not be applied rigidly and is intended to retain decision-making discretion to deal with individual circumstances. This would appear to be acknowledged by the Agency’s agreement to fund 42 days of STA per year.
66.	In closing submissions, the Agency emphasised what they considered to be a significant concession by Dr Waugh during the hearing. This concession was said to be that Dr Waugh’s opinion on STA could change if Mrs Johnstone usually had two to three hours to herself in the afternoon/evening after she returned home from work. The Agency submitted that Dr Waugh agreed, if this were the case, she may recommend that the Applicant attend respite around every eight weeks. The Agency further submitted that Mrs Johnstone’s evidence supported that she did usually have a few hours to herself most afternoons/evenings when the Applicant was flying kites at the esplanade with a support worker. I have reviewed the recordings from the hearing and do not agree that Mrs Johnstone said that she had a few hours to herself most afternoons/evenings. Mrs Johnstone’s evidence was that this depended on the weather, how early it got dark, and whether she had to work later. Based on this, the hypothetical that was put to Dr Waugh was not a realistic description of how frequently Mrs Johnstone had time to herself. In my view this reduces the weight to be given to Dr Waugh’s concession. However, I still consider that some weight should be given to Dr Waugh’s concession. 
67.	Throughout this proceeding there have been many supports that have been agreed upon by the Agency, or which are included in this decision, which aim to reduce the carer burden on Mrs Johnstone. These include extra support worker hours on weekends; 140 hours of buddy shifts for support worker training; additional support coordination hours; two‑way radios; additional support worker hours for excursions and weeknight SES meetings; medication roll packaging; home modifications; and vehicle modifications. In combination, these supports go some way to reducing carer burden on Mrs Johnstone, and therefore also reduce the frequency of respite required.
68.	On balance, with the additional supports above, I consider that 60 days of STA for respite per year is reasonable and necessary. The equates to seven days of respite every six weeks or so. I am satisfied that STA for respite is necessary to address needs arising from impairments that meet the disability requirements. STA for respite will assist the Applicant to achieve his goal of improved independence and reduced responsibility for Mrs Johnstone. The respite will improve Mrs Johnstone’s ability to assist the Applicant with his social and economic participation. This represents value-for-money given the benefits achieved and the higher support worker cost that would be required if Mrs Johnstone is unable to continue to care for the Applicant. I am not satisfied that shorter stays or reduced frequency are lower‑cost alternatives that achieve the same outcomes. The benefits and effectiveness of STA for respite are supported by the Applicant and Mrs Johnstone’s lived experience as well as appropriate professional opinions. This support specifically accounts for the level of care that is reasonable for Mrs Johnstone to provide. STA for respite is an NDIS support under the Transitional Rules. I consider that STA for respite is most appropriately funded by the NDIS and not more appropriately funded by other general support services. 
Support (a)(ii): Additional STA for SES events 
69.	The Applicant also seeks STA for four Saturdays and three Sundays per year to attend SES full‑weekend events. The Applicant says that these are scheduled events which include joint exercises in which the Applicant plays a role in the emergency management centre. This STA is requested in addition to respite as it is difficult to coordinate with the respite STA and the short duration does not provide Mrs Johnstone with sufficient respite. In his submissions, the Applicant also refers to the decision in David in which the Tribunal found that funding for airplane tickets for a carer to attend interstate sports events with Mr David twice a year was a reasonable and necessary support. 
70.	The Agency does not submit that STA for this purpose is excluded under the Transitional Rules but does submit that it is a matter for the Tribunal to assess the relevant NDIS Act provision and rules in its decision. Item 4(o) in the category ‘Day-to-day living costs—Lifestyle’ of Schedule 2 of the Transitional Rules states that the following is generally not NDIS supports:
accommodation to attend or participate in work, study, music, theatre, cinema, sporting events or conferences, or any other social, business, private, public, formal or informal event.
71.	In my view, the Applicant’s request for STA to participate in these SES weekend events does fall within this item in the Transitional Rules and is now excluded from being funded in the Applicant’s SPS. These rules were not in place when the Tribunal arrived at its conclusions in David. 
Support (b)(i): Additional support worker hours for excursions
72.	The Applicant seeks an additional ten hours per week for an extra support worker to assist with excursions in his modified van. In summary, the Applicant submits that an extra support worker is required for these outings as they usually involve more demanding outdoor activities. The Applicant says that the challenges of these activities increase the need for: manual handling (for example, when his wheelchair becomes stuck in uneven terrain); continued supervision while other excursion tasks are completed; one person to drive and another to assist the Applicant during the drive; and assistance with physically demanding activities such as kite flying.
73.	These needs are supported in letter from Lindsay Payne, of Disability Support & Tours Queensland, in which they describe how two workers have been required to meet the Applicant’s needs as well as to ensure support worker safety and breaks. 
74.	The Agency submits that there is no clinical justification for greater than a 1:1 support worker ratio. The Agency relies on the report of Ms S Yates, in which she states: 
Medical clearance from Mr Johnstone’s cardiologist to participate in activities that are located in a remote locations [sic] over a 10 hour period in the tropical heat and including consideration of the safety of his support workers would be required.
75.	Alternatively, the Agency also submitted that provision of 2:1 support may pose a risk to the Applicant, or his support workers, and ought not be funded pursuant to rule 5.1(a) of the Support Rules. 
76.	In reply, the Applicant relies on Dr Waugh’s opinion that: 
Heath’s travel to remote areas is very limited. When he does travel to these areas, Heath travels with support carers who are all trained in how to respond to Heath’s medical needs. He also has access to medical equipment/ medication to deal with his usual complaints. Heath always has access to telephone communication nearby wherever he goes. 
77.	I would also note the opinion expressed by Ms S Yates that the use of the Applicant’s current Permobil F5 Corpus electric wheelchair in more rugged terrains is not recommended and that:
The combined weight of Mr Johnstone and his wheelchair would be in the vicinity of 300 kg. If he uses the wheelchair in a manner or on surfaces for which it has not been designed as described in the user manual, it would be unsafe for one or two support workers to physically assist him without appropriate equipment. [emphasis added] 
78.	  Ms S Yates further stated that:
Lower cost alternatives: If medical clearance is provided for Mr Johnstone and his support workers to participate in these types of activities, lower cost alternatives could include less frequent participation, shorter excursions or closer locations if the environments in which he uses his electric wheelchair are safe.
79.	With regards to the Applicant’s heart condition, Dr Ng reported that:
Mr Johnstone suffered a life-threatening acute myocardial infarction in December of 2018 which has left him with significant functional disabilities. [He] suffers with severe, debilitating chest pain which has a marked impact on his exercise tolerance. While this does fluctuate on a day-to-day perspective, his poor coronary artery disease status means that he is likely to continue to experience chest pains even with modest exertion. His comorbid issues related to his anxiety, ADHD and back pain significantly exacerbate the situation and on certain days, he is unable to carry out simple activities of daily life (such as walking around the house, or around a shopping centre) without experiencing chest discomfort, which if left untreated, could result in further myocardial injury.
80.	In her oral evidence, Mrs Johnstone provided an example of a kite-flying excursion to Port Douglas in which the Applicant was accompanied by herself and a single support worker. Mr Johnstone described this as an exhausting and extremely stressful day given the amount of equipment that needed to be carted and set-up while also ensuring the Applicant was monitored and his temperature regulated.  
81.	When asked about the risks to the Applicant’s heart health when participating in outdoor activities, Dr Waugh responded that: 
He certainly would have more episodes, but the thing is that he needs to live his life. You’ve got to think about his mental health as well and the fact that these are terminal conditions. Someone with his stage of heart failure – or anyone with heart failure, there’s a 50 per cent mortality in five years after the diagnosis. He needs to be able to be living his life.
82.	This was the first time the Applicant had heard his heart condition described as being ‘terminal’ and it was understandably a distressing part of the hearing process and required a break. Dr Waugh also said that the survival rate for people with the Applicant’s level of heart failure was around 30% after 10 years, depending on an individual’s co-morbidities.
83.	Dr Waugh was comfortable with the Applicant participating in outdoor activities with a support worker assisting as they are trained in being able to assist with postural changes and to administer his nasal spray medication (which is effective in most instances). This was on the basis that the Applicant’s condition is currently stable. Dr Waugh advised that the Applicant sees his cardiologist at least twice a year and uses Holter monitors. However, Dr Waugh also would not recommend that he go into remote areas without reliable communications or which were more than 30 to 60 minutes away from medical facilities.
84.	Rule 5.1(a) of the Support Rules states that:
5.1	A support will not be provided or funded under the NDIS if:
(a)	it is likely to cause harm to the participant or pose a risk to others …
85.	The Applicant drew my attention to the Tribunal’s decision in O’Hearn in which the Tribunal said:
Rule 5.1(a) of the Supports Rules provides that a support will not be provided or funded under the NDIS if ‘it is likely to cause harm to the participant or pose a risk to others’. The parties agreed that the word ‘likely’, in the context of rule 5.1(a), should be understood as meaning ‘more probable than not’, that being a greater than 50 per cent chance of it occurring.  
86.	I agree with this interpretation. I would observe here that Dr Ng’s report, mentioned above, indicates that the Applicant’s significant heart disease presented in 2018 and is impacted by his co-morbidities. Combined with Dr Waugh’s evidence regarding the mortality rates for individuals with the Applicant’s level of heart disease, I consider that the Applicant participating in physical activities for extended periods of time in hot and remote environments is likely to cause harm to the Applicant or pose a risk to others. 
87.	However, this does not lead me to the conclusion that an extra support worker for excursions should be prevented from being funded in the Applicant’s SPS. From Dr Waugh’s evidence, I accept that the Applicant has medical clearance to participate in shorter and less remote excursions. An extra support worker is only likely to cause harm or pose a risk to others if they are used for the Applicant to access more remote and rugged areas. An extra support worker is still advisable for shorter excursions as it is important for the Applicant to be able to be supervised and medically assisted by one support worker while another support worker is driving the modified vehicle, or making trips back to the vehicle for the Applicant’s equipment. In this way, an extra support worker is mitigating risks of harm rather than being likely to cause harm. 
88.	While this support is not precluded by Rule 5.1(a), the other requirements in the NDIS Act and Rules still need to be satisfied for the support to be considered reasonable and necessary. I note that Schedule 1, Item 27 of the Transitional Rules states that ‘Supports that assist a participant to take part in community, social, cultural and civic activities’ are NDIS supports unless otherwise provided.
89.	The Applicant’s passion for outdoor activities was very clear from his evidence. I would recommend that he follow Dr Waugh’s advice and limit these excursions to shorter and less remote trips. This does reduce the need for, and value of, a ten-hour excursion per week. Consistent with Dr Waugh’s recommendations, I consider that a second support worker for six hours per week is reasonable and necessary. The second support worker is necessary to address needs arising from impairments on these excursions. These needs are supported by the Applicant and Mrs Johnstone’s lived experience and from a service provider familiar with the Applicant’s requirements. The second support worker assists the Applicant in his goals of maintaining his wellbeing, reducing carer burden and participating in an active lifestyle. At approximately $20,000 per year, the second support worker is a substantial cost, but I am satisfied that this represents value-for-money relative to the significant benefits achieved in terms of the Applicant pursuing his keen interest in outdoor activities. These additional hours could also be used flexibly for the Applicant to attend SES training courses discussed below. I do not consider that there are lower cost alternatives that achieve the same outcome. The support worker is an NDIS support under Schedule 1, Item 27 of the Transitional Rules. The second support worker is most appropriately funded under the NDIS and not more appropriately funded under other general systems of support. Funding for a second support worker for six hours per week to assist with social and community participation is a reasonable and necessary support to be included in the Applicant’s SPS. 
Support (b)(ii): Additional support worker hours for SES weeknight meetings
90.	The Applicant also seeks a support worker from 6:00 pm to 10:00 pm on Wednesdays to take part in local SES meetings. The Applicant requests that these be included at the evening rate. In the cover email to the ‘plan funding breakdown’ document lodged by the Agency on 15 September 2024, the Agency advised that two hours per week at the weekday evening rate had been added to the Applicant’s plan. This means that the issue that remained in dispute at the hearing was whether a further two hours of support worker time, at the evening rate, to attend these SES meetings was reasonable and necessary. 
91.	During oral evidence and submissions it was clarified that the Applicant has a formal support worker until 8:00 pm at the weekday, daytime rate. The Agency submits that the additional two hours at the evening rate is sufficient to cover the 8:00 pm to 10:00 pm component of these meetings. The Applicant said that: getting ready for the meeting started around 6:00 pm; the meeting started around 7:00 pm and would finish any time after 9:00 pm; and, while he was usually home by 10:00 pm, this could be later if debriefing was required. In closing submissions, the Applicant also said that he might arrive home later if he chose to travel by his wheelchair rather than use his modified vehicle. This oral evidence and submission from the Applicant is not consistent with the statement in his written submissions that “I need support from 6pm to 10pm to be able to attend these weekly meetings.” 
92.	The Applicant also submitted that the additional hours were required due to the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award). In particular, the definition of an ‘Afternoon shift being any shift which finishes after 8.00 pm and at or before 12 midnight Monday to Friday. Afternoon shifts attract a loading of 12.5% of the ordinary rate of pay for the whole of the shift. The Applicant says that this award establishes a legal requirement that the NDIS Pricing Arrangements are subject to by operation of Rule 5.3 of the Support Rules, which states that a support will not be provided if it is contrary to a law of the Commonwealth (or relevant State of Territory). 
93.	The Agency says that the NDIS Pricing Arrangements apply and that these arrangements state that:
Weekday Daytime Support is any support to a participant that starts at or after 6:00 am and ends before or at 8:00 pm on a single weekday
A Weekday Evening Support is any support to a participant that starts at or after 8:00 pm and finishes at or before midnight on a single weekday (unless it is a Public Holiday or Night-time Sleepover Support). [emphasis in original] 
94.	With regards to the SCHADS Award, the Agency made oral closing submissions that: there was no objective evidence that any such award applies; and the determination of any applicable employment award as between the service provider and the formal support providers for the applicant is irrelevant to the purposes of this proceeding. I do not accept these submissions from the Agency. The SCHADS Award is a publicly available Commonwealth instrument which is expressly referenced within the NDIS Pricing Arrangements at Page 8: 
The NDIA expects that providers pay their disability support workers in accordance with relevant awards and agreements. Participants should expect that the price for services is in line with the quality and cost of service provision. For example, where providers employ DSWs in line with Social and Community Services Employees section for the SCHADS Industry Award, a price for services at the limit would be justified. 
95.	At the start of the section of the NDIS Pricing Arrangements dealing with the shift definitions above, there is a paragraph: 
In determining which price limit is applicable to a support, the important consideration is when the support is provided to the participant, not the shift of the worker used to deliver that support as determined by the applicable Industry Award or Enterprise Bargaining Agreement. 
96.	This paragraph would suggest that the definition of ‘Afternoon Shift’ in the SCHADS Award is not applicable for the purpose of NDIS price limits. However, this is later clarified on page 16 of the NDIS Pricing Arrangements (after the definitions of weekday evening rate etc):   
An exception to this general rule occurs when a particular support crosses a shift boundary and the same worker delivers the entire support. In this case, the higher of the relevant price limits applies to the entire support and the provider should make the claim against the relevant support item.
97.	Based on this, as the Agency has agreed that that providing a support worker for the period of 8:00 pm to 10:00 pm on a weekday evening is reasonable and necessary. The Applicant’s support coordinator may be able to arrange for a change of shift workers while the Applicant is at the SES such that the evening support worker covers to 8:00pm to 10:00pm shift. If this option is not available, and the same support worker has to continue a shift from before 8:00 pm, my view is that (based on the exception in the NDIS Pricing Arrangements above) the Agency should make provision for the whole of this shift to be paid at the evening rate. Ultimately, these are matters for plan implementation rather than for determination by the Tribunal. 
98.	I do not consider that provision of a support worker beyond 10:00 pm is reasonable and necessary. I am not persuaded by the Applicant’s oral evidence and submissions regarding returning later than 10:00 pm and consider that extending a support worker to 10:00 pm will be sufficient. If there are circumstances where the Applicant cannot return home prior to 10:00 pm, then this is a matter for the Applicant to balance with his other community participation hours.
Support (b)(iii): Additional support worker hours for SES weekend training 
99.	The Applicant also seeks 29 support worker hours at the weekend rate to participate in SES training courses. This is different from the SES weekend events discussed in the STA section above. These courses are provided in the local area, during the day, and do not require accommodation. Participation with the SES is one of the Applicant’s stated goals and it is not in dispute that it is beneficial for the Applicant to engage with the SES. Dr Waugh has said the following in relation to SES courses:
Heath enjoys his voluntary involvement with the SES. I have recommended no more then 6 hours/day for most of his involvement due to physical and mental fatigue. However, he could manage the occasional course up to 8hours. He could be involved in some outdoor activities such as first aid courses and searches (limited to 6hours/day) as he has a support worker with him and can cease the activity at any time. The community involvement and involvement in a team is beneficial to heath’s [sic] mental health.
100.	The Agency submits that there is no evidence before the Tribunal to substantiate the details of the courses. The Agency also relies on the report of Ms S Yates in which she says:
The training subjects noted by Mr Johnstone would appear to be available through online courses which could be completed within his home environment or at the SES office using his current support worker hours.  
101.	In reply, the Applicant emphasised the benefit of participating face-to-face with others for his community engagement, relationship‑building with the SES team and sense of contribution to society. The Applicant was also concerned that the online courses referenced in Ms S Yates’ report would not be recognised by the SES or the responsible government agency. I agree with the Applicant’s concerns and am not persuaded that the training options outlined in Ms S Yates’ report are comparable supports which would achieve the same outcome at a substantially lower cost as set out in per Rule 3.1(a) of the Support Rules. 
102.	However, the Applicant has not provided any other information to demonstrate the duration, frequency or timing of the courses. Currently, the Applicant is funded for five hours of community participation on Saturday. I only have the Applicant’s submission on which to base the need for this training to be completed outside of these available weekend support worker hours. While the Applicant’s submissions and oral evidence are of weight, it would seem relatively straight-forward to provide information from the SES about these courses. In providing supports that require public funds there does need to be a minimum standard for evidence provided. Presently, there is not sufficient information to indicate that these courses need to be attended outside of the hours that the Applicant has a support worker. I am therefore not satisfied that the support worker hours requested for attending these courses is reasonable and necessary. 
103.	With some further information about these courses, it might be open for an NDIS decision‑maker to consider this request as reasonable and necessary. In the meantime, if the current weekend support worker hours are not sufficient, the Applicant could discuss with his support coordinator whether he could use some of his other community participation support worker hours flexibly to attend these courses, including the additional excursion hours approved above. 
Support (b)(iv): Additional support worker hours for meal preparation 
104.	The Applicant seeks an additional nine hours per week for a specialised, dedicated support worker to prepare meals. The Applicant says that this is required due to his specific meal and sensory needs, in combination with the need for his standard support workers to provide him constant supervision. The Applicant relies on the report of Ms Georgiou in which she says:
•	With the Applicant’s ASD, his sensory criteria for food can change daily which makes meal-planning difficult;
•	The most challenging part of the Applicant’s ASD with respect to food is taste and texture fatigue; 
•	The Applicant’s current protein intake is inadequate;
•	The ideal option is a dedicated support worker visiting the Applicant in the morning to confirm his tolerated foods on that day, then purchasing the ingredients, and returning to prepare the meals, 2-3 times per week; 
•	Other support workers cannot do this while supervising the Applicant and the consistency of different support workers could result in further food aversions;  
•	Ready-made meals are not an option due to the unpredictability of the Applicant’s food aversions and likely food wastage.  
105.	Ms Georgiou’s observations are largely consistent with the earlier dietician reports from Julietta Close in which Ms Close says:
Due to his sensory issues, his taste and texture preferences change daily and eating the wrong meal can result in a very traumatic experience for Heath. Since Heath doesn’t feel hunger due to his disabilities and medications, he requires support workers to prompt him to eat, and often feels bloated after eating due to his physical conditions.
Heath finds grocery shopping too overwhelming and time consuming due to his disabilities, and therefore is difficult for the grocery shopping to be done as regularly as it should be for his needs. 
106.	The Applicant also relies on his and Mrs Johnstone’s lived experience. In her oral evidence, Mrs Johnstone described how she and the Applicant currently share a purchased lunch most days as a way for the Applicant to regularly eat meals. Mrs Johnstone described the importance to the Applicant of meals being visually and texturally how he expects them to be, saying: 
Whenever I’ve cooked a meal, I have had to put it out, present it, the way that you will be able to cope with eating it, the way that it looks. And if [the meal] doesn’t look like how you imagined it will look like, you won’t be able to eat it. And you may not be able to eat that … type of meal for a very long time because of the impact on you.
… You describe the texture that you want something to be, whether you want it creamy or crunchy, depending what your mind is telling you, you need that day. You tell me that’s what you need. And if it’s not cooked that way you won’t be able to eat it.
… you may not be able to eat that meal again for a week, a year, or possibly ever again in your life.         
107.	In her oral evidence, Ms Georgiou described: the significant health risks to the Applicant with his current diet; issues with the textural changes to reheated frozen foods; the limited range of ready-made meals that can purchased and delivered on the same day; and that other cook-at-home style food delivery services, such as ‘HelloFresh’, did not cater for single-meal serves.
108.	The Agency submits that this support is not reasonable and necessary as the Applicant has dietician funding for 13 hours per year and support worker assistance for activities of daily living. The Agency says that the Applicant can work with his dietitian to formulate recipes and meal ideas to increase his protein intake each month. In their closing submissions, the Agency also said that there was little utility as the Applicant was still likely to reject meals. The Agency also emphasised the contradiction with Ms McGregor’s evidence, who, when recommending two-way radios, said that the Applicant’s support workers could be a short distance away from him for approximately 30 minutes to one hour at a time, during which period they can prepare meals for the Applicant.
109.	There is strength to the Agency’s submission on this issue. I accept that the Applicant’s ASD creates a very challenging situation with his food aversions, and that it is essential for his health that he improve his nutrition. The extent of these challenges leads me to conclude that the proposed support is not likely to be effective. Sections 34(1)(c) and (d) require that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support; and that the support is likely to be effective for the participant. 
110.	I am concerned that Ms Georgiou’s recommendation was based on the assumption that current support workers cannot leave the Applicant unattended for any period of time. I do not accept that this is the case. As will be seen in the discussion below regarding two-way radios, I accept that the Applicant can be left for short periods if a support worker remains in communication with the Applicant and can assist him promptly. Ms McGregor’s report is specific on this point: 
The radios enable his staff to attend to domestic tasks such as meal preparation activities that are conducted in other areas of the home thereby improving their capacity to provide in home support while continuing to have the necessary communication avenues that enable Heath to alert them of his care needs particularly when the situation is urgent.
111.	An additional support worker is a duplication of this support and is therefore prevented from being funded by Rule 5.1(c) of the Support Rules. At approximately $30,000 per year, the proposed support is a considerable expense. Below, I have approved the dietary supplements for fortification that Ms Georgiou also recommends and which she considered were ‘less of a gamble’ than the meal preparation approach. I am concerned that there is a high likelihood that meals prepared on the same day by a dedicated support-worker would still frequently be rejected by the Applicant. For this reason, I am not satisfied that the support is likely to be effective. It is also not value for money when comparing the costs to the benefits achieved. I am not satisfied that the provision of additional support worker hours for meal preparation is a reasonable and necessary support.
112.	If the Applicant wishes to demonstrate the effectiveness of an additional support worker for meal preparation, then he could consider using some of his extra support worker hours for excursions (approved above) to trial this approach. 
Support (c): XT4 Powered Wheelchair, accessories and insurance 
113.	The Applicant seeks a powered wheelchair for use in more challenging outdoor settings than manageable in his current Permobil F5 Corpus power wheelchair (F5 PWC). Specifically, the Applicant requests the Magic Mobility XT4 power wheelchair (XT4 PWC). Previously, the Applicant had been gifted a Magic Mobility V6 power wheelchair (V6 PWC), but this was damaged beyond repair in the flooding associated with Cyclone Jasper in 2023. The Applicant used the V6 PWC to participate in outdoor activities such as kite flying, photography, nature groups and ‘exploring off-road’ environments. The Applicant trialled the XT4 PWC and found it to be a great improvement on the V6 PWC. He submits that the XT4 PWC will allow him to navigate challenging terrain independently and fully engage in his passion for outdoor activities.
114.	Prior to the hearing, the Agency agree to fund a Ki Mobility Liberty Manual Wheelchair (Ki MWC). In recommending the Ki MWC Ms McGregor said: 
The MWC will enable him greater participation in all his activities .
The tilt in space folding manual wheelchair will enhance his capacity to participate in a wider variety of activities and support his sitting tolerance through appropriate postural support and reduced carer burden through increased energy levels, enhanced functional capacity and reduced pain/fatigue.
115.	The Applicant relies on the various reports of Ms McGregor, including the detailed comparison of the various strengths and uses of the F5 PWC, XT4 PWC and Ki MWC. Ms McGregor summarised the benefits of the XT4 over other offroad wheelchairs as being:
•	Significantly improved seated stability, with increased sitting tolerance and reduced pain and fatigue;
•	Improved handling and comfort over rough terrain;
•	Significantly better ability for the Applicant to turn and navigate;
•	Ability to use the foot controller so that both hands can operate the Applicant’s four-line stunt kites and respond to directional changes;
•	Ability to follow subjects during wildlife photography to achieve greater and more fulfilling results;
•	Ability to perform other two-handed tasks such shopping and to travel alongside someone and use his arms and hands to express himself.
116.	The Applicant also relies on his lived experience and the carer’s statement of Mrs Johnstone, in which she says:  
This offroad wheelchair is expected to greatly improve Heath’s quality of life, reduce the carer burden on me and increase the quality of our relationship. Not having this wheelchair has had a negative impact on Heath’s and my wellbeing and our relationship to date because Heath has not been able to access all places that he would need to be able to access to pursue his goals and he has needed and extra support worker on some occasions to assist with the difficulty of using the Permobil F5 PWC in some situations.
117.	The Applicant also submits that the F5 PWC is not suitable for air travel, but I do not consider the evidence provided at page 1508 of the joint hearing bundle to be persuasive in this regard. The Applicant’s submission at page 1509 of the joint hearing bundle that the XT4 PWC would reduce the need for 2:1 support workers on excursions also contradicts some of the reasons put forward for the 2:1 support workers, such as medical assistance being required while a support worker is driving. 
118.	The Agency submits that the F5 PWC was prescribed for largely the same benefits as now identified for the XT4 PWC, stating that: 
It is evident from Ms McGregor’s recommendations … that the Permobil F5 PWC was recommended, and funded, in order to allow the Applicant to, broadly put, engage in outdoor recreational activities of his choice across a variety of different terrains, including SES participation. These are broadly the same reasons for which Ms McGregor now recommends funding for the XT4 PWC.
The point of difference appears to be that the Applicant now participates in kite flying, and prefers to do so on the beach. The owner’s manual for the Permobil F5 Corpus suggests that users can drive on “uneven surfaces such as grass, gravel, sand, ice, or snow” but ought to use caution in those circumstances.
119.	The Agency also submits that, in the assessment template, Ms McGregor answered ‘No’ to the question “Are there any foreseeable changes in the technology or in the client’s circumstances that would make this solution inappropriate in the near future?” and that this ‘unqualified recommendation’ supports the conclusion that the F5 PWC remains suitable and the XT4 PWC does not represent value for money. In reply, the Applicant says that the XT4 PWC was not available at the time of the F5 PWC scripting and that his needs and interests have changed. On balance, I do consider that the F5 PWC provides many similar benefits to those which the Applicant is seeking from the XT4 PWC. 
120.	To the extent that there is overlap between the outcomes achieved by the two PWCs, the F5 PWC is a comparable support which achieves some of the same outcomes at no additional cost. This is relevant when assessing the value for money of the XT4 PWC. However, the F5 PWC could not be said to achieve all the same outcomes for the purpose of Rule 3.1(a) of the Support Rules. 
121.	In his oral submissions, the Applicant highlighted the different uses of the F5 PWC and the XT4 PWC, saying that: 
…  these two wheelchairs are very, very different, and meet different roles in my life, both indoor or outdoor. So for my everyday use, the Permobil F5 is a fantastic wheelchair. Going to the doctors, going shopping, going places, going to meetings, dining. It is a brilliant wheelchair. Whereas the XT4 cannot do most of those things. When it comes to the extent of outdoor things that I’m now engaging in, that I wasn’t engaging in before, and the things that I have now discovered I can do, the Permobil F5 is totally incapable of doing that.
… no power wheelchairs can meet all these requirements, however, the XT4 has been a game-changer for enabling access to extreme surfaces and can still be used in an urban context … with limitations to powered seating functions, turning and indoor use, meaning it is not a suitable power wheelchair for everyday use.
122.	In response to questions from the Agency, the Applicant agreed that he was able to use the F5 PWC for kite flying on the nearby Cairns esplanade and other parks or ovals when conditions were suitable. In her oral evidence, Ms McGregor agreed with the Agency’s suggestion that the main benefit of the XT4 was to support the Applicant in his activity of kite-flying on beaches. Ms McGregor described the need for both the F5 and XT4 PWCs as:
… both chairs actually support his functional capacity and mobility. They just support them in a different variety of terrain, and a different variety of activities … it’s not a cookie cutter exercise. You just can’t have one chair that’s going to suit all … circumstances …
123.	Ms McGregor drew an analogy to shoes, stating that:
I guess the reality is that chairs are like people’s shoes; you don’t wear the one pair of shoes for every single activity in your life and a wheelchair is going to be the same. So suggesting that a Permobil chair, as good as they are, can do offroad activities is completely unrealistic. … So you have specific chairs that meet specific goals.
124.	Ms McGregor agreed with the proposition from the Agency that shoes do not cost $50,000. This prompted the Applicant to provide examples in his closing submissions of shoes that do cost a similar amount or more. While I have no doubt that there are shoes that can cost a similar amount to a PWC, I do not expect that such shoes are subject to the value‑for‑money considerations in the NDIS Act.
125.	The Applicant also raised the Tribunal decision in Munday, which related to whether a PWC that was preferred by a participant should be funded instead of another chair which was recommended. This is contrasted from the situation for the Applicant who seeks the XT4 PWC in addition to the F5 PWC and Ki MWC. The considerations are different in the Applicant’s situation.  
126.	I have also considered the Transitional Rules which do not appear to be particularly helpful in this regard. Schedule 1, Item 7 of the Transitional Rules says that assistive products used in sports or other recreational activities are NDIS supports unless otherwise provided. However, Schedule 2, Item 4(i) of the Transitional Rules says that “costs associated with elite or professional sports and activities, including equipment and modifications to equipment and related travel costs” generally are not NDIS supports. Without further guidance, it is not entirely clear to me how to distinguish between standard and elite activities. The Agency did not submit that the XT4 PWC should be excluded as it was related to an elite activity. I am inclined to consider that the four-line stunt kite flying that the Applicant seeks to engage in with the XT4 PWC is a recreational activity for the purpose of Schedule 1.  
127.	As discussed above in relation to excursions, Ms S Yates raised concerns with risks to the Applicant and others if accessing more rugged or remote areas. In response to questions from the Tribunal regarding risks to the Applicant if he suffered a cardiac event while on a beach, Ms McGregor said: 
… you’d have to call an ambulance because he would struggle to even get out of the chair or to be able to transfer into a van …you’d basically get him to solid ground and get the ambulance there as quickly as you could.
128.	In the Applicant’s closing submissions, he provided examples of the locations that he wished to access and the driving distances and times from the nearest ambulance station. The Applicant sought to demonstrate that most sites would be accessible in under an hour, as recommended by Dr Waugh. I remain concerned that these estimates are not realistic. While I acknowledge that ambulances can travel quickly, the Applicant’s submissions do not account for the very real likelihood that an ambulance could be delayed, or that it may take time to reach the Applicant in a less accessible location and transfer him into the ambulance.  
129.	As with the support hours for excursion activities discussed above, I do not consider that the XT4 PWC is itself a support which is a risk which is excluded by Rule 5.1(a) of the Support Rules. It is the Applicant’s intended use of the XT4 PWC to access more rugged outdoor areas while participating in activities in the tropical heat that presents a risk. Avoiding these higher risk settings does however reduce the value of the XT4 PWC. Leaving aside accessing more rugged terrain and bush tracks, the main activity that is best achieved with the XT4 PWC (with foot controller) is beach access for two-handed kite flying. Other activities that are supported by the XT4 PWC are: tracking targets for wildlife photography; access to some bird watching sites; participating in some outdoor SES activities such as search and rescue; and using both hands while talking and operating the PWC.
130.	The various comparison tables at 795, 1505 and 1507 of the joint hearing bundle show a range of activities that can be achieved with the F5 PWC, Ki MWC and modified van. These supports enable the Applicant to take part in a wider range of activities including many outdoor activities such as kite-flying, bird watching and wildlife photography. I appreciate the Applicant’s great enthusiasm for beach kite-flying and the benefits this would likely have for his wellbeing. I also acknowledge the clear connection to the Applicant’s goal of being active outdoors. However, at approximately $67,000, I cannot conclude that the additional activities enabled by the XT4 PWC represent value for money.
131.	The XT4 PWC is not a reasonable and necessary support to be funded in the Applicant’s SPS. Consequently, the Applicant’s other requests for accessories and insurance for the XT4 PWC are also not reasonable and necessary.  
Support (d): Home automation, including door automation and environmental controls
132.	The Applicant seeks home automation so that he can independently control air‑conditioners, fans, lighting, curtains and his front door. The Applicant submits that this would have many benefits, including:
•	Reduced care burden for Mrs Johnstone;
•	Improved dignity and independence through less reliance on others;
•	Improved quality of life and reduced health risks;
•	Enhanced fulfillment of body corporate chairman duties;
•	Better safety and access in emergencies;
•	Improved security;
•	Allowing formal and informal supports to focus on more essential tasks; and 
•	Better management of light sensitivity and thermal regulation.  
133.	The Applicant relies on a Mid-Cost AT Letter provided by Ms Ford in which she recommends the automation for environmental controls, in particular:
•	A Cloud connect module;
•	Dimmable LED lights;
•	Power mesh fan and light controllers;
•	Wi-Fi controlled air-conditioning; and 
•	Window blind controllers.  
134.	In making these recommendations, Ms Ford said that the automation would: provide the Applicant with safe and independent control of his home environment; minimise the impact of his fluctuating ability to adjust his surroundings; increase his choice and control; reduce his reliance on others; and reduce carer burden.      
135.	The Applicant also relies on the Complex home modification assessment conducted by Ms Ford in which she recommended:
•	Installing a permanent ramp and platform at the front doorway;
•	Increasing the front and internal doorway widths;
•	Providing an accessible bathroom; and 
•	Installing an automatic door opener to the front door and screen. 
136.	The Agency submitted that: 
•	there is no clinical justification for home automation; 
•	the Applicant can control his existing air-conditioning with remote controls; 
•	formal and informal supports can assist with fans, light and curtains; 
•	an automated door is not value-for-money; 
•	adjusting cooling and lighting remotely is desirable for any person living in the tropics and is a day-to-day living cost; and 
•	it is reasonable to expect Mrs Johnstone to undertake some of these tasks.     
137.	The Agency relies on the supplementary report of Ms S Yates in which she considered that home automation would be a duplication of the formal support workers who are available to assist the Applicant with activities in the home and to enter and exit the home. Ms S Yates considered that smart bulbs and existing air-conditioning remotes were lower cost options. Specifically in relation to the door automation, Ms S Yates opinion was that a lower cost option would be for a level landing and ramp at the front door so that the Applicant could utilise the tilt function of the F5 PWC to reach the door handle.    
138.	In reply, the Applicant pointed to refereed literature supporting the benefits of home automation and Tribunal and Federal Court decisions in FFNR, Warwick, KKTB and McGarrigle. I have considered each of these decisions. With respect to FFNR, I agree that the level of burden on Mrs Johnstone is clearly a relevant consideration. It is not clear to me that the tasks completed by Mrs Johnstone which could be automated are ones that would fall within the description in FFNR of being more than what she ‘could reasonably bear’. I also consider that the STA for respite agreed above reduces the carer burden on Mrs Johnstone and, therefore, somewhat reduces this need for home automation.
139.	Regarding Warwick, I agree with the Applicant’s submission that home automation is not a day-to-day living cost. I note that the Transitional Rules do not specifically mention automation. Schedule 1, Item 8(c) in the category ‘Assistive products for household tasks’ of the Transitional Rules says that the cost to upgrade standard household items to include accessibility features are NDIS supports unless otherwise provided. Similarly, Schedule 1, Item 22(a) in the home modification category says that installing equipment or changing fixtures or fittings are NDIS supports. Schedule 2, Item 1(e) in the category ‘Day-to-day living costs— accommodation and household’ states that standard home improvements are generally not NDIS supports. In my view, the home automation elements requested by the Applicant are accessibility upgrades to standard household items, or a change to fixture or fittings. I would not consider these home automation requests to be standard home improvements which are excluded under Schedule 2.  
140.	With regards to McGarrigle, I do not accept the submission of the Applicant that, if any aspect of the environmental controls or home automation are considered reasonable and necessary, then all of the home automation requested must be funded in full. In my view, this is a common (and understandable) over-simplification of the finding in McGarrigle. A close reading of the McGarrigle judgement shows that this ‘all-or-nothing’ approach is to be rejected. This issue was specifically clarified on appeal to the Full Court which said: 
… In particular, the parties’ arguments raised the question whether in that paragraph [95] her Honour should be taken to have said that in every case where a support was reasonable and necessary, it must be fully funded.
We do not read her Honour as establishing a two stage process to determine whether objectively a support was reasonable and necessary and secondly and consequentially that it must be fully funded. Rather, we consider that her Honour was addressing the particular way in which the argument was formulated before her.
… To avoid doubt, we note it would be open to the Tribunal to conclude in the present case that some or all of the supports sought by Mr McGarrigle in respect of transport are to be funded.
141.	During oral evidence, Mrs Johnstone explained how the current front door had to be left unlocked during the day for support worker access and this left her feeling unsafe. She also described how having to get up and down to open the door, adjust lights, fans, curtains and air-conditioners etc impacted on her fatigue, stress and relationship with Mr Johnstone.
142.	In her oral evidence, Ms Ford explained how the Applicant frequently needs changes to his environment and that this interrupted Mrs Johnstone when formal support workers were not available. In response to questions from the Agency, Ms Ford agreed that formal support workers completed these tasks when they were available and that this covered weekdays and part of the weekends. In response to questions from the Tribunal, Ms Ford confirmed that additional remote controls could be purchased for the air-conditioners but said that this this was not as simple as having a single unit controlling all devices. 
143.	In my view, it is significant that the Agency has now agreed to the other major home modifications recommended by Ms Ford. With wider internal doorways, the Applicant’s ability to mobilise within the home using the Ki MWC or F5 PWC is expected to improve. Particularly noting the F5 PWC seat elevate and tilt functions, this is turn can be expected to improve the Applicant’s ability to move between rooms and reach the controls for lights, fans and air-conditioners. The material in the Joint Hearing Bundle otherwise indicates that the Applicant can stand and walk very short distances in his home with the use of walking sticks or using furniture or walls for support. The modifications should further improve the Applicant’s access to controllers and switches and reduce his reliance on others to assist with these tasks. 
144.	The widening to the front door, and installation of a ramp landing, may well allow the Application to open and close this door so that he can enter and exit when he wishes, either with the use of the F5 PWC seat tilt and elevate functions, or by standing and using his walking sticks. As part of these home modifications, a keypad entry on the replaced front door could be considered to improve safety. Overall, it is reasonable to complete these major home modifications before reassessing any need for home automation.  
145.	I accept that home automation supports the Applicant’s goal of improving his independence with activities of daily living and ensuring that Mrs Johnstone is not solely responsible for this. However, I also agree with the Agency that home automation is, in part, a duplication of the assistance provided by support workers. I also accept it is reasonable to expect Mrs Johnstone to assist with these tasks and that her carer burden should be better addressed through the provision of STA for respite. 
146.	The cost of the home automation (including the door) is approximately $23,000. I agree that there is significant value to the Applicant in being able to control his home environment more readily and move in and out of his home easily without assistance. This value is difficult to quantify, particularly when it is anticipated that the home modifications should allow some of these tasks to be completed by the Applicant without automation. Depending on the benefits achieved through the home modifications, and any further deterioration in the Applicant’s condition, the need for home automation can be reassessed in the future. At present, I do not consider that home automation represents value-for-money.
Support (e): additional support coordination hours
147.	In his written submissions, the Applicant sought 156 hours of Level 3 support coordination. Prior to the hearing the Agency agreed to provide the hours requested, but at Level 2. At the start of the hearing the Applicant agreed to Level 2 support coordination but said this would mean that more hours were needed, specifically a total of 197.5 hours. This figure was arrived at by looking at a 12-week period of actual support coordination hours used and averaging this usage across full year. 
148.	The Applicant says that these support coordination hours are needed for a range of reasons, including:
•	His complex and variable support needs;
•	Difficulties with support worker supply, turnover and cancellations;
•	Reducing carer burden;
•	Mrs Johnstone’s declining health;
•	Pursuing more activities;
•	Cost efficiency in reducing errors;
•	Engagement with the NDIS Quality and Safeguards Commission; and 
•	Reflecting actual usage.
149.	The Applicant relies on letters from his former support coordinator Ms O’Donnell and current support coordinator Ms Edge. Ms O’Donnell states that the support coordination hours were insufficient due to the Applicant’s limitations in communication, organisation and concentration along with the challenges of managing multiple service providers and engagements. Ms Edge also says that Level 3 support coordination is required due to the Applicant’s vulnerabilities and referred to a recent code of conduct breach by a support worker that resulted in a notification to the NDIS Quality and Safeguards Commission. 
150.	The Applicant also relies on Mrs Johnstone’s carer impact statement and his lived experience with the stress and time needed to coordinate support. In her evidence, Mrs Johnstone said that assisting with support coordination:
… takes up a lot of my time when I’m not working, helping you check emails, coordinate supports if there’s issues with your supports, checking service agreements. … it’s enormous, enormous amount of hours out of my weekend usually, trying to coordinate all of the things with all of your supports. It’s a massive job.
151.	The Agency relies on Ms S Yates who says that:
Mr Johnstone has 108 hours of funding for level 2 support coordination in his current plan. This should be sufficient to set up and oversee Mr Johnstone’s supports. Mr Johnstone, his wife and his support workers have capacity to manage his supports as required on a day-to-day basis. During this assessment, Mr Johnstone was observed to be able to negotiate with service providers to fill a shift for a worker who could not attend on that day. He reported that this occurred on a regular basis. 
152.	In her oral evidence, Ms S Yates drew the distinction between support coordination and day-to-day management of supports. In relation to the example above, Ms S Yates said that she observed the Applicant to have capacity to manage these day-to-day interactions and that her assessment of his support coordination needs was based on his cognition and organisational skills.
153.	During her oral evidence, Ms Edge provided further information about the code of conduct breach referred to in her letter. This incident was a source of humiliation for the Applicant and Mrs Johnstone was not present for this part of the hearing. I agreed to manage this topic discreetly in my reasons. I do not need to deal further with this here as it mainly relates to the Applicant’s request for Level 3 support coordination which the Applicant has conceded. 
154.	Ms Edge was aware of the updated hours and level of support coordination that had been agreed by the Agency. Ms Edge confirmed that, aside from the additional hours related to the incident above, 156 hours at Level 2 would be sufficient. Ms Edge referred to the agreed level of funding as being ‘generous’ and at the ‘top echelon’. Overall, I understood Ms Edge to be saying that she expected to be able to deliver the required level of support coordination within the allocation of 156 hours per year and that she would request additional hours if required. Considering this, I cannot be satisfied that the additional hours sought by the Applicant are reasonable and necessary. I would also consider that the funding for ‘buddy shifts’ will relieve some pressure on support coordination, the Applicant and Mrs Johnstone.  In my view, the Applicant should proceed with the 156 hours allocated at Level 2 included in the current plan. If this proves to be insufficient due to further incidents, or other changed circumstances, a request for additional hours can be made.       
Consumables
Support (f)(i): e-Ink reader
155.	The Applicant seeks an e-Ink reader, specifically the “Bigme S6 e-Ink colour 7.8 Inch eReader” for improved communication with his support workers. The e-Ink reader is a tablet device which can be used to store, update and display notes, documents, photos and video. The Applicant say this would have a range of benefits over his current hard-copy support manual, including: 
•	Storing digital versions of the support manual with tracked updates;
•	Replacing laminated checklists which are difficult to maintain;
•	Portability of support and risk management documents;
•	Being able to add demonstration videos;  
•	Replacing a shift handover whiteboard; 
•	Improved communication with and between support workers; 
•	Setting reminders;
•	Reduced printing and laminating costs;
•	Reduced carer burden;
•	Reduced support worker refresh training; and
•	Responding to the Applicant’s complex and changing needs. 
156.	The Applicant relies on the recommendation made for this device by Ms McGregor in her 14 April 2024 report. In her oral evidence, Ms McGregor also said that the e‑Ink reader was more compact and durable than an iPad and therefore better for taking into the community. In her oral evidence, Mrs Johnstone provided examples where the e‑Ink reader would assist, such as with different packing lists for STA or excursions, and reducing the need for her to explain and update support workers on the Applicant’s needs.  
157.	Initially, the Agency submitted that the e-Ink reader was not attributable to the Applicant’s disability. Later the Agency accepted that each of the requested supports satisfy the new section 34(1)(aa) of the NDIS Act as they address needs arising from impairments that meet the disability requirements. In my view, that is correct; the request for the e-Ink reader addresses needs arising from the Applicant’s psychosocial disabilities. 
158.	In their oral submissions, the Agency also put forward that support coordination, buddy shifts, hard-copy exercise books, verbal communication, laminated checklists and use of the Applicant’s laptop or phone are lower cost alternatives to the e-Ink reader which should be considered as part of the value-for‑money assessment in section 34(1)(c) of the NDIS Act and Rule 3.1(a) of the Support Rules. 
159.	In his evidence and submissions, the Applicant raised privacy and security concerns with his laptop or phone being used by others for the purpose. I agree with these concerns and do not consider that the use of the Applicant’s laptop or phone for this purpose is a lower cost alternative that achieves the same outcome. 
160.	While the Agency does not submit that the e-Ink reader is prevented under the Transitional Rules, this requires some further consideration. Schedule 1, Item 11(a) in the category ‘Communication and information equipment’ states that “products that help a participant to receive, send, produce and/or process information in different forms” are NDIS supports unless otherwise provided. However, Schedule 2, Item 4(d) in the category ‘Day-to-day living costs—lifestyle’ states that “internet devices (such as modems and routers), land line, phones, mobile phones (including smart phones), mobile, phone accessories, tablets and sim cards” are generally not NDIS supports. 
161.	In my view, the e-Ink reader is a ‘tablet’ device. In Rule 7, ‘tablets’ are listed a type of support for the which the CEO can make a replacement support determination under section 10(6)(a) of the NDIS Act. Column 2 in the Rule 7 table says that:
The support must be necessary to address communication or accessibility needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements. 
162.	Based on the evidence before me, I would consider that the e-Ink reader is necessary for  communicating the Applicant’s complex and changing support needs to his support workers. However, there are other conditions that must be satisfied before the CEO can make a replacement support determination under section 10(6) of the NDIS Act, including that an application be made, and that the support replaces another support at the same or lower cost, while providing the same or better outcome. Importantly, these are matters for the CEO to determine and are not before the Tribunal. As such, I cannot be satisfied that the e-Ink reader is a NDIS support for the Applicant as required by the amended section 34(1)(f).
Support (f)(ii): iPad
163.	The Applicant also seeks an iPad, primarily in relation to the recommendations of Ms Georgiou to better support his meal selection. The recommendation for an iPad is also supported by Mr Widmer in his report dated 20 July 2023. However, as the iPad is a tablet device, for the same reasons as the e-Ink reader, I cannot be satisfied that the e-Ink reader is a NDIS support for the Applicant as required by the amended section 34(1)(f). 
Support (f)(iii): subscription to ‘SpendAble’ application
164.	The Applicant seeks a subscription to ‘SpendAble’ which is payment card and application system promoted as being more secure, transparent and usable for NDIS participants. The recommendation of Mr Widmer in his report of 23 November 2023 is for the premium version which costs $55 per month. The Applicant states that SpendAble is required due to difficulties with relying on support workers to pay for items using the Applicant’s credit card. These difficulties include inaccessibility of payment points; managing multiple accounts; security; receipt management; and the inefficiency of plan management payments for facilitating transactions. The Applicant also outlines a range of benefits such as: having dedicated cards for individual support workers; real-time monitoring; VISA’s zero liability protection; better record-keeping; customised reports; and dedicated customer support. 
165.	The Agency submits that SpendAble is a day-to-day living cost and does not represent value for money relative to the cost of a free personal banking application. In Ms S Yates’ opinion, there are free personal budgeting applications which achieve similar outcomes in relation to budgeting. 
166.	In her oral evidence, Mrs Johnstone explained that getting cash for support workers to use was an additional burden on her as she needed to make a trip the bank to withdraw cash; support workers forget receipts for reimbursement; and that the SpendAble application would provide a dedicated card for purchase of NDIS consumables. In Ms McGregor’s oral evidence, she agreed that the seat elevate and tilt functions of the F5 PWC provide the Applicant with a greater ability to pay for items if he is able to access the counter, rather than having to rely on support workers. I also note that the Applicant is able to mobilise over very short distances with the use of his walking stacks and this may be an option for accessing some payment points.   
167.	Overall, I am not persuaded that a subscription to the SpendAble application is value‑for‑money. It would be low risk for the Applicant to have a dedicated payment card with a capped limit for occasional use by a support worker. This should only be necessary when the Applicant is unable to access a payment point or when a card reader cannot be brought to him. The F5 PWC does allow the Applicant to reach higher payment points if he can approach a counter. The issue of a support worker forgetting a receipt is a marginal benefit in my view. In terms of carer burden, I consider that the Applicant can withdraw cash and does not need Mrs Johnstone to do this. The free budgeting apps mentioned in Ms S Yates’ report also provide a lower cost alternative that achieves similar outcomes, at least in relation to tracking and budgeting. I am therefore not satisfied that a subscription to SpendAble is a reasonable and necessary support to be funded in the Applicant’s SPS. 
Support (f)(iv): subscription to ‘ChatGPT’ application 
168.	The Applicant seeks a subscription to ‘ChatGPT’, which is the (well known) Artificial Intelligence application developed by Open AI. Mr Widmer, in his report of 23 November 2023, recommends the subscription version, which currently costs around $30 per month. Mr Widmer identified a number of benefits for the Applicant, including: 
•	Summarising and simplifying complex information;
•	Providing a less overwhelming interface compared to navigating websites and paperwork;
•	Text-to-speech recognition;
•	Offering a consistent and reassuring mode of communication;
•	Facilitating reminders and storing important information;
•	Breaking down larger tasks into more manageable action;
•	Providing on‑demand assistance and information;
•	Providing guidance in emergency situations; and
•	Helping build a support network.
169.	While there is a free version, the Applicant says that he has trialled this version and it was not sufficient for his needs. The Applicant say that the advantages of the subscription version include:
•	Enhanced buffer capacity allowing for more extensive and complex requests;
•	More consistent and reliable responses;
•	Improved leaning and adaption to the Applicant’s communication style; 
•	Capacity to access and process external documents; and
•	Support for other Artificial Intelligence tools or ‘plug-ins’. 
170.	The Agency submits that a subscription to ChatGPT is not reasonable and necessary as it is likely to pose a risk of harm to the Applicant and does not represent value for money, relative to the free version. The risk identified by the Agency is that the use of ChatGPT may increase the possibility that the Applicant could be exploited because ChatGPT is still being developed and may not always provide accurate information. I am not satisfied that the risks identified by the Agency mean that the use of ChatGPT is likely to cause harm to the participant for the purpose of Rule 5.1(a) of the Support Rules. I accept that the Applicant is aware of these risks and would be able to respond appropriately.
171.	In her oral evidence, Mrs Johnstone explained how ChatGPT reduced the burden on her in helping the Applicant to understand documents and write and proof-read responses. Mrs Johnstone added that the paid version of ChatGPT assisted by remembering the history of previous requests. 
172.	The Applicant also referred to the Tribunal’s decision in Gelzinnis, which I have considered. In Gelzinnis the Applicant sought better internet access to implement an assistive technology plan, which was in turn intended to reduce reliance on support workers. The facts in Gelzinnis were quite specific to the Applicant and included poverty, limited internet availability in her accommodation and inability to access free public networks due to concerns with her disassociate episodes. I do not consider that the reasoning in Gelzinnis applies to Mr Johnstone’s situation. 
173.	I agree with the Agency’s contention that the paid version of ChatGPT does not represent value-for-money compared with the free version. I cannot see anything specifically in Mr Widmer’s report that deals with the additional advantages of the paid version. The bulk of the features which would reduce carer burden on Mrs Johnstone appear to be available in the free version. The Applicant’s lived experience with the free version not being suitable is of some weight, but ultimately provides little else to support a finding that the paid version is value-for-money. I am not satisfied that the subscription to ChatGPT is a reasonable and necessary support. 
Support (f)(v): two-way radios
174.	The Applicant seeks three two-way radios, specifically the Uniden XTRAK 50 Pro Smart Radio (approximately $350 each), for communication with his support workers. The Applicant say that these higher quality radios are required as the lower cost options do not have sufficient range, clarity or volume. These higher quality units also have features such as water resistance, dedicated charging stations, instant playback, voice scrambling and an alarm/call button. The Applicant describes the use of these radios as transformative and indispensable, through improving his independence by allowing him to communicate with his support workers if they are not in earshot or line-of-sight. The Applicant also says that the radios are used at the SES so that he can be in secure areas at the SES without a support worker being present in the room. The third handset, in particular, is said to be essential as a backup and to keep one radio at the charging station next to his bed at all times to ensure that a radio at this critical location is always available. In the Applicant’s lived experience, the use of radios reduces the carer burden on Mrs Johnstone by allowing her a greater range of movement when she is caring for the Applicant.  
175.	The Applicant relies on the recommendation made for these radios by Ms McGregor in her 14 April 2024 report in which she adds that these radios: 
•	Assist due to the Applicant’s lack of voice projection (exacerbated during cardiac events);
•	Provide private time for the Applicant;
•	Enable staff to attend to other tasks such as light house duties;
•	Do not rely on phones, which staff are not permitted to use on shift or provide their numbers to clients;
•	Have a push button alarm function which is faster than a phone;
•	Are more reliable than using phones when in the community due to gaps in phone coverage; 
•	Allow better communication when accessing the community, allowing support workers to be at a greater distance from the Applicant when required; 
•	Allowing privacy, such as during medical appointments; 
•	Are more robust and have better features than cheaper versions. 
176.	The Agency submits that there is an inconsistency between the Applicant’s assertion that 24/7 1:1 supervision is required and that the radios allow the Applicant to be independent of this support without direct supervision. The Agency also submits that: a medical alert alarm may be more appropriate but would need to be assessed by an occupational therapist; it is reasonable to expect support workers to frequently check on the Applicant should he desire privacy in his own home; and that mobile phones can be used to contact support workers if needed.
177.	In her supplementary report, Ms S Yates states that that the alarm feature on the radios may not be reliable if the Applicant cannot access and operate the radio during a cardiac event, and that his smart phone and watch may be more appropriate for making an emergency call in these situations. Ms S Yates also says that a horn on the Applicant’s PWC could be used if required.
178.	During the hearing the Applicant emphasised how the alarm button was essential if he was having a cardiac episode and was unable to speak. He demonstrated the use of the alarm button and his support worker attended to him immediately. The Applicant highlighted that this was faster than a medical alert system which would route a call to an emergency operator who was not onsite. He also noted that his PWC does not have a horn.
179.	In her oral evidence Ms McGregor explained how the medical alert systems were less suitable as they: relied on 4G mobile coverage; did not support communication from one part of the house to another; alerted several emergency contacts, which may not be necessary; and activated if dropped due to fall detection. Ms McGregor also said that cheaper versions trialled broke quickly and were therefore not value-for-money. In response to questions from the Agency, Ms McGregor discounted the use of a bell as it did not allow for two-way communication and was therefore less efficient, especially when time was of the essence in an emergency. Ms McGregor also stated that, in her experience, support workers were not issued with work phones. 
180.	I do not accept that Agency’s submissions that a medical alert system, phones, a bell, or frequent checks by support workers are comparable supports which would achieve the same outcome at a substantially lower cost. The Agency provided some links to medical alert systems that they say may be suitable. The medical alert systems are focused on medical emergencies, and this is only one limited aspect of the benefits sought by the Applicant in using the radios. Even for this purpose, I would consider that a medical alert system is less likely to be effective as they do not route immediately to the onsite support worker who can attend to the Applicant most quickly. The radios are also used for more routine two-way communications with the Applicant’s onsite supports which improves the Applicant’s independence and privacy and allows the support workers to complete tasks such as housework and meal preparation. This in turn should reduce carer burden on Mrs Johnstone. The suggestion that support workers could frequently check on the Applicant is more intrusive and, given the pace of an acute cardiac episode, riskier than the use of radios.
181.	In the Applicant’s circumstances, it is reasonable that he has a no‑phone policy. I do not accept the Agency’s submission that support workers would have access to a work phone as the Agency has not provided information to support this contention. I also accept the Applicant’s submission that the use of radios is more reliable than phones on excursions due to mobile coverage issues. A bell does not support two-way communication and I would be concerned that it may not be heard over greater distances. Similarly, using a horn on a wheelchair does not achieve the same outcome as it does not allow for two‑way communication. 
182.	In respect of the Transitional Rules, I consider that the radios fall within Schedule 1, Item 11(b) in the category ‘Communication and information equipment’ as they are a product which facilitates “communicating by language … having conversations and using communication devices” and are NDIS supports unless otherwise provided.
183.	Overall, I am satisfied that three two-way radios are a reasonable and necessary support for the Applicant. The are many benefits to the use of the two-way radios which have been demonstrated by the Applicant’s lived experience and are supported by appropriate professional opinions. With the use of the radios, my view is that support workers will also be able to assist with meal preparation for the Applicant. The radios will assist the Applicant to achieve his goals of improved independence, reduced responsibility for Mrs Johnstone and engaging in activities outside the home. At approximately $1,000, the radios represent value-for-money given the benefits achieved. The use of a medical alert system, mobile phones, a bell or horn are not lower cost alternatives that achieve the same outcomes. The radios support the Applicant’s disability needs as they enable onsite supports to be away from him for short periods while remaining responsive. The radios are an NDIS support under the Transitional Rules. I consider that radios are most appropriately funded by the NDIS and not more appropriately funded by other general support services. 
Support (f)(vi): CPAP mask and accessories
184.	The Applicant seeks consumables funding to regularly replace his CPAP masks and accessories as they become worn. The Applicant relies on the opinion of Dr Waugh who states that the Applicant: 
… requires the use of a cPAP machine and mask every night to manage Obstructive Sleep Apnoea. Obstructive sleep apnoea has well known impact on both mental health issues, in this case anxiety, depression, PTSD and ADHD, and also on cardiac health. Nocturnal hypoxia aggravates angina and also exacerbates shortness of breath from heart failure.
185.	The Agency identified that the Queensland Health Sleep Disorders Program provided some support to eligible individuals. The Applicant states that his current CPAP machine is provided on a long-term loan under this scheme, but that the scheme does not provide masks and accessories. This is clearly stated on the scheme’s website. 
186.	In their submissions on Back on Track Amendments, the Agency states that: 
Schedule 2 of the Transitional Rules, Item 3(a) stipulates that groceries including all food, beverage, cleaning, household and health products are not NDIS supports. 
Further Schedule 2, Item 12(e) stipulates that equipment or assistive products prescribed or issued as a result of clinical care, treatment or management from a medical practitioner and then delivered in the clinical setting, unrelated to the person’s disability are not NDIS Supports. 
The Respondent submits that requests 9.10, 9.11, 9.21 and 9.22 are expressly excluded by these rules of Schedule 2 in the Transitional Rules, read with s10 of the NDIS Act. 
The requested supports are sought for purposes that relate to health conditions and clinical recommendations … Accordingly, the Respondent submits Tribunal cannot conclude that the provision of this support satisfies the reasonable and necessary criteria (section 34(1)(f), and rule 5.1(d) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013).
187.	In reply, the Applicant submitted that, as Schedule 2, Item 3(a) of the Transitional Rules is within the category ‘Day-to-day living costs— food and groceries’, the meaning of ‘health products’ should be interpreted as being those that are available alongside everyday groceries. Broadly, I agree with this submission.
188.	The Applicant also relies on Schedule 1, Item 16 of the Transitional Rules which includes a category “Disability-related health supports” as supports that are NDIS supports unless otherwise provided. The Applicant submits that health products related to managing the functional impact of his disability should remain distinct from general grocery items. I also tend to agree with this submission. Schedule 1, Item 16 describes these supports as:
Health supports that relate to the functional impact of a participant’s disability.
This includes the following:
(a) supports, services and assistive products to manage dysphagia, diabetes, continence, wound and pressure care, respiration, nutrition, podiatry and foot care, and seizures …  
189.	However, Schedule 1, Item 16 needs to be read together with Schedule 2, Items 12(a) and (e) which say that, in the category ‘Health’, the following are not generally NDIS supports:
(a) the diagnosis, early intervention and clinical treatment of health and dental health conditions, including ongoing or chronic health conditions; …
(e) equipment or assistive products prescribed or issued as a result of clinical care, treatment or management from a medical practitioner and then delivered in the clinical setting, unrelated to the person’s disability.
190.	In my view, the distinction between the health supports referred to in Schedules 1 and 2 of the Transitional Rules would benefit from some additional guidance and examples. The distinction is not currently clear in practice. I am not entirely persuaded that the CPAP mask and accessories ‘relate to the functional impact’ of the Applicant’s disability as contemplated by Schedule 1, Item 16. I accept Dr Waugh’s opinion that the CPAP machine reduces the impacts of the Applicant’s Obstructive Sleep Apnoea on his other disability‑related impairments and cardiac health. In this way, it is arguable, that the accessories could be seen to ‘relate to’ the functional impact of the applicant’s disability. I do not consider that the CPAP accessories are ‘equipment … delivered in the clinical setting’ within the meaning of Item 12(e). 
191.	However, I consider that the provision of CPAP is ‘clinical treatment’ of a chronic health condition that falls within Item 12(a) of Schedule 2 of the Transitional Rules. I have also had regard to the Operational guideline: Disability-related health supports which provides an example of a cough assist machine as a support that could be funded if needed for respiratory health due to a person’s disability. I do not consider the CPAP to be analogous to a cough assist machine in the Applicant’s circumstances. 
192.	On balance, I am inclined to consider that the provision of CPAP accessories is a clinical treatment of a chronic health condition falling with the Schedule 2 exclusions, rather than being a disability‑related health support covered by Schedule 1. In my view, this conclusion is consistent with the continued application of section 34(1)(f) as it was drafted prior the Back on Track Amendments. This requires decision-makers to be satisfied that the support is most appropriately funded through the NDIS and not more appropriately funded through other general systems of service delivery. The Support Rules also continue to apply and Rule 7.5 states that the NDIS will not be responsible for clinical treatment of chronic health conditions. I am not satisfied that that CPAP masks and accessories are most appropriately funded under the NDIS. I consider that funding for CPAP mask and accessories are more appropriately provided under the health system as treatment for a chronic health condition. I am therefore not satisfied that the CPAP mask and accessories are reasonable and necessary supports to be funded in the Applicant’s SPS as required by section 34(1)(f) of the NDIS Act. 
Support (f)(vii): wipes for pressure sores
193.	The Applicant requests consumables funding of $322.35 for ‘Cavilon’ wipes for pressure sores. He relies on the recommendation of Dr Waugh in her 18 April 2024 report in which she says that the tubing from the Applicant’s CPAP mask creates some friction on his cheeks which is easily manage though the use of small pressure sore dressings. 
194.	I have considered the Applicant’s submissions on the Back on Track Amendments in which he says that the wipes are necessary for a range or pressure sores. Schedule 1, Item 16(a) of the Transitional Rules says that “Disability-related health supports” includes “wound and pressure care”. However, I do not see any other information indicating that the wipes are uses for pressure sores other than for preventing those associated with the Applicant’s use of his CPAP machine. 
195.	As I have decided above that the CPAP mask and accessories are more appropriately funded under the health system, it follows that the related pressure sore dressings are also a responsibility of the health system. I am therefore not satisfied that the wipes for pressure sores are reasonable and necessary supports to be funded in the Applicant’s SPS as required by the pre-amendment version of section 34(1)(f) of the NDIS Act. 
Support (f)(viii): medication roll packaging
196.	The Applicant seeks funding of $3.75 per week which represents the packaging fee for rolls of medication sachets. The packaging fee is an additional expense to the medication supply costs which are otherwise covered by Medicare and the Pharmaceutical Benefits Scheme (PBS). The Applicant relies on the 18 April 2024 recommendation of Dr Waugh, includes photos of the rolls, and adds from his lived experience that the medication roll packaging is required because:
•	Pill organisers and webster packs have not been suitable for the (nearly) 30 tablets taken daily, and are not durable for transporting;
•	Using a nurse for this was expensive and had limitations;
•	His memory, concentration and mental health issues present risks in the Applicant managing these medications;
•	Legal requirements prevent support workers from organising and administering this medication;
•	Organising the medication is time consuming and a burden on Mrs Johnstone;
•	It reduces the risk of medication errors as it is prepared by a pharmacy and each medication is individually labelled; and 
•	Improved portability supports his active lifestyle. 
197.	The Agency submits that the medication roll packaging in now excluded from funding under the Transitional Rules, specifically because:
In the list of supports that are not NDIS supports in Schedule 2 of the Transitional Rules, Item 3(a) stipulates that groceries including all food, beverage, cleaning, household and health products are not NDIS supports. 
Further Schedule 2, Item 12(e) stipulates that equipment or assistive products prescribed or issued as a result of clinical care, treatment or management from a medical practitioner and then delivered in the clinical setting, unrelated to the person’s disability are not NDIS Supports. …
The requested supports are sought for purposes that relate to health conditions and clinical recommendations … 
198.	In reply, the Applicant submits that the medication roll packing should not be considered a health product in the Schedule 2, Item 3 category “Day-to-day living costs—food and groceries”. I agree with this submission as the medication roll packaging is not a day‑to‑day grocery item. 
199.	The Applicant also submits that: 
Schedule 1, Item 16, list “disability-related health supports” which include products and services aimed at managing complex health conditions directly linked to a participant’s disability. I submit that the Medication Roll Sachets align with this category, as they provide a structured and reliable method for medication administration, which is critical due to my psychosocial impairments, including depression and suicide risk.
200.	I also agree with the thrust of this submission. The medication roll sachets are better considered as a disability-related health support as the need for this packaging relates to the functional impact of the Applicant’s psychosocial disability. While I acknowledge that the needs for the Applicant do not fit squarely into one of the subitems from 16(a) to (c), I consider that this is an inclusive (rather than exhaustive) list of relevant disability health supports. 
201.	I do not agree with the Respondent’s submission that the medication roll packaging is excluded under Schedule 2, Item 12(e) of the Transitional Rules as it is not ‘delivered in the clinical setting’. The list at Schedule 2, Item 2 is not expressed as being an inclusive list. I would also note that Schedule 2, Item 12(d) excludes pharmaceuticals (including prescription medicines and non-prescription medicines). I consider that this item does not apply to the Applicant as he is not seeking support for the cost of the medicine, but rather the specialised packaging of his medicines in response to the functional impact of his disability.
202.	In Ms S Yates’ opinion, the medication roll packaging is required to facilitate the Applicant’s compliance with his medication regimes due to his cognitive restrictions. Ms S Yates also considers that a pill organiser that Mr Johnstone would need to set up independently each week could be a lower cost option. I do not accept that a pill organiser is a comparable support which would achieve the same outcome as it is relies on the Applicant, or Mrs Johnstone, for implementation, which increases the risk of error.  
203.	I also consider that this request falls within the exception in Rule 5.2(a) of the Support Rules as the medication roll packaging is an additional living costs incurred solely and directly as a result of the Applicant’s disability support needs. I consider that Rule 7.4 applies in that the packaging is integrally linked to the care and support the Applicant requires to live in the community. Accordingly, I consider that the support is most appropriately funded under the NDIS and not more appropriately funded under the health system. 
204.	I consider that the medication roll packaging is a reasonable and necessary support to be funded in the Applicant’s SPS. The packaging assists the Applicant with medication management which would otherwise have risks arising from an impairment which meets the disability requirements, and this is supported by appropriate evidence. The packaging assists the Applicant to pursue his goals of maintaining his wellbeing, reducing carer burden and supporting his active lifestyle. The packaging is relatively low-cost and is value‑for‑money relative to the benefits achieved. I do not consider that there are lower cost alternatives that achieve the same outcome. The packaging is an NDIS support under Item 16 of the Transitional Rules. The packaging is most appropriately funded under the NDIS and not more appropriately funded under the health system. 
Support (f)(ix): enemas 
205.	The Applicant seeks funding of $120.00 per year for enemas. Again, the Applicant relies on Dr Waugh’s 18 April 2024 letter in which she states that the enemas and suppositories are a consequence of his poor mobility, medication side effects and fluid restrictions required to manage his heart failure. Dr Waugh states that the combination of oral laxatives and fleet enemas is the most effective and that the Fleet enemas are not available on the PBS.
206.	Ms S Yates refers to the Continence Guideline as a basis for her view that enemas and suppositories are available under the health system. I am not persuaded that the Continence Guideline applies to the Applicant’s situation as the guideline relates to the accidental or involuntary loss of urine or faeces, which the Applicant does not suffer from. 
207.	The Agency submits that the enemas are prevented under Schedule 2, Item 4(s) and 12(d) of the Transitional Rules. In reply, the Applicant says that enemas should be considered a disability‑related health support under Schedule 1, Item 16(a) as they are a support to manage continence. The Applicant also says that enemas are an NDIS support under:
•	Schedule 1, Item 9(b) in the category ‘Assistive products for personal care and safety’ as they are products which are ‘caring for the participant’s body and body parts’; and
•	Schedule 1, Item 14(a) in the category ‘Daily Personal Activities’ as this includes assistance with toileting.
208.	I do not agree with the Applicant’s submission that the enemas are a continence product. In addition to the Continence Guideline above, I have referred to publicly available sources which say that “Continence is the ability to control your bladder and bowel. Incontinence is the involuntary loss of bladder and bowel control.” I consider that the Applicant suffers from constipation rather than having a continence issue or suffering from incontinence. 
209.	I also do not agree that enemas fall with the Schedule 1, Item 14(a) category ‘Daily Personal Activities’ as this category relates to ‘Supports that provide supervision or assistance with personal daily living tasks...’ Enemas are not a support that provide supervision or assistance. As I understand it, Mrs Johnstone assists with administering the enemas. 
210.	I agree with the Applicant’s submission that enemas do not fall within the Schedule 2, Item 4(s) as it would not be correct to consider that enemas are in the category ‘Day-to-day living costs—lifestyle’. I do however agree with the Agency that enemas are excluded under Schedule 2, Item 12(d) in the ‘Health category’ as they are a pharmaceutical (including prescription medicines and non-prescription medicines).
211.	For completeness, based on Dr Waugh’s opinion I would consider that the enemas are related to the Applicant’s disability. In this way, the enemas are capable of being considered a health support that relates to the functional impact of a participant’s disability and therefore a ‘Disability-related health support’ for the purpose of Schedule 1, Item 16. However, unlike the medication roll packaging, I consider that the specific exclusion in Schedule 2, Item 12(d) removes enemas from otherwise being considered a disability-related health support. In my view, the distinction between this conclusion and that in relation to the medication roll packaging is that, for the enemas, the Applicant is seeking funding for the pharmaceutical product itself, as opposed to the service that is involved in the medication roll packaging (in which the Applicant or the PBS pays for the actual pharmaceutical products contained within the packaging).
212.	As the enemas are excluded under Schedule 2, Item 2(d) of the Transitional Rules they cannot be an NDIS support for the Applicant. Therefore sections 34(1)(f) and 10 of the NDIS Act (as amended) cannot be met. The enemas are not a reasonable and necessary support to be included in the Applicant’s SPS.
Support (f)(x): face masks
213.	The Applicant seeks $80.00 per year for face masks to be used by others that he interacts with. The Applicant explains that these are required due to his higher risk from infections. The Applicant says this his support workers are required to wear a mask but often forget to bring their own and that others that he interacts with, such as allied health professionals, frequently do not have a mask available. The Applicant relies on Dr Waugh’s report of 18 April 2024 in which she says:
Upper respiratory tract viruses, such as influenza and COVID, impact Heath severely given his underlying cardiac condition. As such, it is essential that NDIS support workers wear a face mask when providing support for Heath indoors. Often support workers arrive without a face mask. As such, Heath keeps a supply on hand. 
214.	The Agency submits that the requested supports relate to health conditions and clinical recommendations for prevention of viruses such as influenza and COVID. The Agency submits that the Tribunal cannot conclude that the provision of this support satisfies the reasonable and necessary criteria (section 34(1)(f), and rule 5.1(d) of the Support Rules 2013).
215.	Ms S Yates states that NDIS Guidelines regarding Personal Protective Equipment (PPE) allows for the purchase of face masks for the use of participants; the cost of PPE for support workers is incorporated in the NDIS Pricing Arrangements; and it is the responsibility of support workers/their employers to provide face masks. The link in Ms S Yates’ report was not correct but I have checked the Agency’s public guidance on funding for PPE which says that: 
You can use your NDIS funds to purchase PPE items when:
o	you have a reasonable and necessary need for PPE items like face masks (e.g: surgical or N95), face shields and gloves
o	PPE is used when your disability worker is providing your supports
o	You get an average of at least 1 hour a day of face-to-face daily living supports
o	The cost of PPE should not be more than $50 a week.
You can use your Core supports budget to purchase these items:
….
If you need to purchase masks to use outside the home, this is an everyday expense, and you cannot use your NDIS funds to pay for them.
Can providers charge me for using PPE?
No. Providers can’t claim the cost of PPE for support workers from a participant's plan.
From 1 January 2022, there has been a temporary increase in some NDIS price limits to cover the costs of support worker PPE.
216.	The Applicant is aware of need for support workers to provide their own masks and that this is included in their fees. However, the Applicant says that this is not realistic, does not account for support workers who forget a mask and that it would be impractical for a support worker to leave and come back with a mask. I acknowledge these concerns. However, as the support workers’ fees includes the cost of PPE, it is for the service provider to ensure that PPE is available. This may mean that, for example, the service provider should provide a box of masks to be kept at the Applicant’s home for use by support workers.
217.	The Applicant also submits that:
Face masks do not constitute general day-to-day living costs under Rule 5.1(d). Instead, they qualify as additional living costs under Rule 5.2(a), incurred solely due to my disabilities and impairments. The Warwick case supports the view that expenses like these, directly addressing disability-specific needs, are reasonable and necessary under the NDIS framework. 
218.	I do not consider that the decision in Warwick applies in this instance. In Warwick, Justice Perram found that:
The costs of engaging an agent to sell one’s home, the costs of moving from one home to another, conveyancing fees and the payment of stamp duty on the conveyance of a new home are not everyday costs which are incurred in the course of living for the purpose of living. To the contrary, they are extraordinary expenses to which not everyone has the good fortune to become liable and which, even amongst those who are that fortunate, can scarcely be described as ‘day-to-day’ costs.
219.	Earlier, I considered that the reasoning in Warwick had some application to the Applicant’s request for home automation. However, I do not consider that this reasoning supports the Applicant’s request for face masks. Face masks have become a common item which are widely available. They are not an expense comparable to selling a home and relocating. In my view, face masks fall within with the exclusion in Schedule 2, Item 3(a) of the Transitional Rules in the category “Day-to-day living costs—food and groceries” as they are a health product covered by “groceries including all food, beverage, cleaning, household and health products”. As this item is excluded under the Transitional Rules, they cannot be an NDIS support for the Applicant and sections 10 and 34(1)(f) the NDIS Act (as amended) cannot be met. Face masks are not a reasonable and necessary support to be included in the Applicant’s SPS.
Support (f)(xi): dietary supplements
220.	The Applicant seeks funding for approximately $2,500 for dietary supplements, specifically protein powders. The Applicant relies on the recommendation from Ms Georgiou that:
•	Separate from meal preparation, beverage fortification with protein powders would improve the Applicant’s protein intake and work with his sensory issues;
•	Fortification is appropriate with the Applicant’s fluid restrictions related to his cardiovascular conditions;  
•	Having both neutral and flavoured options will allow the Applicant to fortify a range of food and beverages.  
221.	The Agency’s submission on this issue is that: 
There does not appear to be a clinical justification on Ms Georgiou’s recommendation that these protein powders are related to the Applicant’s disability. Rather they are an option for anyone who wishes to increase their protein intake. The Applicant can otherwise work with his dietitian to formulate recipes and meal ideas to increase his protein intake each month ….
222.	As indicated in other parts above, in their submissions of the Back on Track Amendments, the Agency now accepts that the disputed supports (with some specific exceptions) do address needs of the Applicant arising from an impairment in relation to which the Applicant meets the disability requirements for the purpose of section 34(1)(aa) of the NDIS Act.
223.	In her oral evidence, Ms Georgiou explained the basis of her concern with protein intake and the risks in terms of muscle wastage. Ms Georgiou also said that she was more confident that the fortification approach would be effective as it is can be combined with food and beverages that the Applicant already accepts daily. In this way it was a less of a ‘gamble’ compared with the meal preparation support discussed earlier.  
224.	In my view, Ms Georgiou does provide clinical justification for the use of protein powder, given the Applicant’s poor protein intake is directly related to his significant food aversions. Her evidence also supports a finding that the dietary supplements are likely to be effective and beneficial for the Applicant.
225.	The Agency does not submit that dietary supplements are excluded by the Transitional Rules. Again, I do not consider that the application of the Transitional Rules is straight‑forward in this regard. Protein powders are available at grocery shops, and this could   indicate that these are food and health products excluded under Schedule 2, Item 3(a) of the Transitional Rules within the category ‘Day-to-day living costs — food and groceries’. However, Item 9(a) of Schedule 1 says that modified foods are an NDIS support unless otherwise provided. As the need for protein powder fortification does directly relate to the Applicant’s psychosocial disability, I am more inclined to consider that this is a modified food rather than a day-to-day food or grocery item.  
226.	I acknowledge that these fortification supplements may not clearly fall within the Item 9(a) of Schedule 1 of the Transitional Rules. I also consider that fortification falls within Rule 5.2(a) of the Support Rules and as it is an additional living costs incurred solely and directly as a result of the Applicant’s disability support needs. In reaching this conclusion, I have also had regard to the following paragraph from page 6 of the Operational guideline: nutrition supports including meal preparation: 
To help you get the nutrition you need, you may be prescribed nutritional supplements that you eat or drink by a suitably qualified health professional. These supplements increase the amount of nutrition you get in your diet. We may be able to include funding for the prescribed nutritional supplements in your plan. The supplements need to be related to your disability.
227.	Overall, I am satisfied that the dietary supplements are a reasonable and necessary support for the Applicant. The supplements are necessary due to the Applicant’s severe food aversions related to his psychosocial disability. The likely effectiveness and benefits are supported by appropriate professional opinions. The supplements will assist the Applicant to achieve his goal of improving his physical well-being. In turn, improved physical wellbeing will assist with the Applicant’s social and economic participation. At approximately $2,500, the supplements represent value-for-money given the benefits achieved. The supplements are an NDIS support under the Transitional Rules. As the supplements are required due to the Applicant’s psychosocial disability, I consider that they are additional living costs incurred solely and directly as a result of the Applicants disability support needs, are most appropriately funded by the NDIS and not more appropriately funded by other general support services. 
Support (f)(xii): specialised umbrellas 
228.	In the email cover to the plan implemented on 2 October 2024, the Agency advised that the consumables item: umbrellas – specialised ($99.60) remained in dispute. The Applicant seeks two umbrellas, one which is a large sun umbrella with a protective coating that reflects infrared and ultraviolet rays. The Applicant says this is required to reduce heat stress in the tropics and is related to his disability and thermo-regulation issues. The second umbrella is a large clear umbrella which the Applicant uses for rain protection for himself and his PWC and is required so that the Applicant has visibility when moving his PWC in the rain. The Applicant also raises points regarding discrimination legislation and human rights. As the Applicant is not prevented from acquiring or using these umbrellas, I do not need to consider these submissions further.  
229.	The Agency submits that umbrellas are now excluded by the Transitional Rules: 
In the list of supports that are not NDIS supports in Schedule 2 of the Transitional Rules, Item 1(i) stipulates that standard household (including garden) items, appliances, tools and products are not NDIS supports. 
Section 4 of the NDIS Supports Rules defines ‘standard item’ for a participant or prospective participant as meaning: 
an item that is not modified or adapted to address the functional impairments of the participant or prospective participant. 
While ‘standard item’ is not used elsewhere in the Transitional Rules, the Explanatory Statement states the following with respect to the definition in section 4:
There are a number of items that are declared not to be NDIS supports because they are ‘standard’, meaning that they will not be funded by the NDIS because they are not modified or adapted to address a participant’s functional impairments. The NDIS does not fund standard products that are the responsibility of any person to purchase for themselves. 
The Respondent submits that within that definition, umbrellas are expressly excluded by item 4(i), Schedule 2 of the Transitional Rules, read with s10 of the NDIS Act.
230.	In his response, the Applicant submits that the umbrellas are not standard household items that fall within this category of the Transitional Rules. I agree with the Applicant’s submission. Schedule 2, Item 1(i) is in the category “Day-to-day living costs—accommodation and household”. In this context I would not consider that the umbrellas (which are used during community participation) are in the accommodation and household category. 
231.	In my view, the more relevant category is Schedule 2, Item 4 “Day-to-day living costs — lifestyle”. Item 4(g) says that “standard recreational equipment” is not generally a NDIS support. The Applicant does not submit that the umbrellas fall within a specific Schedule 1 category. In my view, Schedule 1, Item 7(a) in the category “Assistive equipment for recreation” is the most relevant and states that “The provision of assistive products used in sports or other recreational activities” including “personal recreation equipment modification” is an NDIS support unless otherwise provided. 
232.	I have also had regard to the Recreation Guideline which says that the NDIS may fund “specialised equipment or modification to equipment to help you to join in social and recreation activities”. 
233.	With regards to the Support Rules, I agree with the Agency that standard umbrellas could be considered day-to-day living cost that anyone living in tropical north Queensland could be expected to purchase. Rule 5.2 says that some day-to-day living costs may be funded if they are: 
(a)	additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)	costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
234.	It is not clear to me that the specialised umbrellas are either solely and directly as a result of the Applicant’s disability support needs or are ancillary to the funded F5 PWC. The Applicant’s submissions form part of his lived experience and this evidence is of weight before the Tribunal. However, I was unable to locate any recommendations from an occupational therapist or similar that support the Applicant’s submissions that these umbrellas are specialised or modified for his disability support needs or for use of the F5 PWC. 
235.	Without better information on the specialised nature of these umbrellas, I consider that the umbrellas may be “standard recreational equipment” that fall within Schedule 2, Item 4(g) of the Transitional Rules and are therefore not generally an NDIS support. This means that I am unable to be satisfied that section 34(1)(f) (as amended) is met as it is unclear to me that the umbrellas are an NDIS support for the Applicant. I am also not satisfied that the umbrellas are additional living costs solely and directly as a result of the Applicant’s disability support needs or are ancillary to the use of the F5 PWC. Therefore I am not satisfied that the umbrellas are permitted under the Support Rules as required by section 34(2). 
Support (f)(xiii): wheelchair mounted fans
236.	In the email cover to the plan implemented on 2 October 2024, the Agency also advised that the following items remained in dispute: 
•	Mounted PWC fans ($157.90); and 
•	Mounts for Fans for PWC ($156.00).
237.	The Applicant submits that he has been using wheelchair fans for several years and finds them essential for regulating his temperature, particularly when outdoors. He says they are also useful indoors when he requires urgent cooling and are used in combination with spray bottles and iced water. In addition to the Applicant’s lived experience and submissions, the assessment template for the F5 PWC completed by Ms McGregor on 7 May 2022 specifies that 12-volt power is required for armrest fitted fans. The Agency accepts that the Applicant experiences impaired thermoregulation and that this is supported by relevant reports. 
238.	I cannot see that the Agency has made any specific submissions with regard to the wheelchair fans. Ms S Yates raises a safety concern that the fans may be a ‘non‑approved aftermarket accessory’ which is not recommended by the F5 PWC manufacturer. There is minimal information provided that would support a finding that the fans are likely to cause harm to the participant or pose a risk to others such that they would be prohibited under Rule 5.1(a) of the Support Rules. I am not satisfied that this is a tangible risk. 
239.	The Agency does not contend that the wheelchair fans are prevented from being funded under the Transitional Rules. I consider that the wheelchair fans fall within Items 28(b) and (e) of Schedule 1 in the category “Personal mobility equipment”. Wheelchairs are listed as at subitem (b) and ‘maintenance, spare parts and consumable items specific to equipment provided’ is subitem (e). I do not see any category in Schedule 2 that would indicate that the wheelchair fans are not generally an NDIS support. 
240.	I consider that the wheelchair fans and mounts are a reasonable and necessary support to be funded in the Applicant’s SPS. The fans assist the Applicant with thermoregulation which is a need arising from an impairment which meets the disability requirements. The fans assist the Applicant to pursue his goal of engaging in outdoor activities and facilitates his social participation. The fans and mounts are low-cost and are value-for-money relative to the benefits achieved. There is no evidence that there are lower cost alternatives that achieve the same outcome. The fans are likely to be effective in managing the Applicant’s temperature. The fans are not a support that is reasonable for the Applicant’s family to provide. The fans are an NDIS support under Item 28(b) and (e) of the Transitional Rules. The fans are most appropriately funded under the NDIS. The fans and mount are not prohibited from funding as being likely to cause harm to the participant or pose a risk to others.
241.	I would note that the amounts of $157.90 and $156.00 above are for mounting fans on two PWCs and this included the XT4 PWC. As I am not satisfied that the XT4 PWC is a reasonable and necessary support, the approved amount will need to be for fans and mounting for the F5 PWC only.   
Support (f)(xiv): spray bottles and electric spray bottle heads
242.	The parties also advised that the following consumables had not been resolved and could be determined based on the written material and submissions:
•	Spray bottles ($26.60)
•	Spray bottle heads – electric ($29.95)
243.	The spray bottles and electric spray bottle heads were specifically considered by Ms S Yates, who agreed that: there was evidence that water spray can assist with managing body core temperature; this would not be a risk or duplication of other supports; and that she was not aware of lower cost options ‘apart from a cold towel’. Ms S Yates does not say that a cold towel would achieve the same outcome. The use of spray bottles is also referred to in the report of Ms McGregor and the statement of Mrs Johnstone.
244.	The Agency does not submit that the spray bottles and electric bottle heads are prevented from being funded under the Transitional Rules. I consider that Item 16, Schedule 1, “Disability-related health supports” is the most appropriate category that applies to spray bottles used for thermoregulation. I was unable to locate any NDIS Operational Guidelines that deal with this issue. 
245.	On balance, given the low cost of the items, the Applicant’s lived experience and the supportive assessment of Ms S Yates and others, I consider that the spray bottles and electric spray bottle heads are reasonable and necessary supports to be funded in the Applicant’s SPS. I consider that these supports assist the Applicant with thermoregulation which is a need arising from an impairment which meets the disability requirements. The spray bottles assist the Applicant to pursue his goal of engaging in outdoor activities and facilitates his social participation. They are low-cost and value-for-money relative to the benefits achieved. I am not satisfied that cold towels are a lower cost alternative that achieve the same outcome. The spray bottles are likely to be effective in managing the Applicant’s temperature. They are not a support that is reasonable for the Applicant’s family to provide. The bottles are not excluded under the Transitional Rules and I consider that they are an NDIS support for the Applicant. The bottles are most appropriately funded under the NDIS as they relate to the Applicant’s disability needs.
Support (f)(xv): other cooling aids 
246.	The parties also advised that the consumables item “other cooling aids ($450.00)” had not been resolved and could be determined based on the written material and submissions. The Applicant’s submissions on ‘other cooling aids’ are very limited. The Applicant identifies his thermoregulation issues and difficulties in the hot tropics which, as noted above, is accepted by the Agency. The Applicant also states that his current cooling aids quickly become mouldy and that he is seeking better alternatives. What these alternatives are has not been stated. In their submission, the Agency sought clarification of the specific cooling aids sought. The Agency also agreed to fund cooling aids related to neck collars to the value of $210.00.
247.	There is insufficient information before me to be able to determine that the better cooling aids that are being explored by the Applicant are reasonable and necessary supports. The Applicant has a consumables budget with which low-cost items can be purchased with assistance from his plan manager. If the consumables budget in his plan is not sufficient for these other cooling aids, this can be raised with the Agency.  
Support (f)(xvi): cooler bags for wheelchairs
248.	The Applicant seeks cooler bags for use on his wheelchair at a cost of approximately $140.00 per year. Again, this is a support that is being determined based on the written evidence and submissions. One cooler bag is used at a time and is hung from the Applicant’s wheelchair. He stores his cooling aids and temperature sensitive medication in this bag. The Applicant included a number of photos with his submissions on this topic. The photos include a stack of six cooler bags that the Applicant says have been worn out from frequent bumping on the side of his chair. Based on his lived experience, the Applicant says he requires four replacement cooler bags per year due to wear and tear. 
249.	As above, the Applicant’s need for cooling aids for thermoregulation is not disputed by the Agency. In Ms S Yates’ report, she observed the Applicant have two cardiac episodes during the five-hour assessment, one of which required support staff to administer a Glyceryl Trinitrate (GTN) spray. While not specifically related to the cooler bags, in her oral evidence, Dr Waugh confirmed that the Applicant suffered cardiac events multiple times per day which frequently required the use of the GTN spray. Dr Waugh also confirmed that the GTN spray needed to be kept refrigerated. If the cardiac event was not managed by the GTN spray and other interventions, an ambulance would need to be called. Based on this information, I accept that it is essential for the Applicant to have a bag in which items can be kept cold during community participation. 
250.	As with the wheelchair mounted fans discussed above, Ms S Yates raises concerns that the cooler bags may represent a safety risk as they are non-approved aftermarket accessories. Ms S Yates refers to the F5 PWC user manual which says that:
The likelihood of the wheelchair’s tipping and the point at which the wheelchair will tip forward, back or to the side depends on its centre of balance. Note that the following factors affect the wheelchair’s centre of balance: 
… The use of a backpack or other accessories, depending on the amount of weight added.
a hazardous situation which, if not avoided, could result in serious injury or death as well as damage to the product or other property.
251.	I note this concern but am not satisfied that this is sufficient to find that the cooler bag is likely to cause harm to the participant or pose a risk to others. It is a consideration that would benefit from some further assessment. Ms S Yates also observes that there are approved bags and carriers for the F5 PWC and that cooler bags may be able to be stored within one of these. I have looked at the manufacturer’s website using the link provided in Ms S Yates’ report. I note that there is an approved backpack and also a hard shell ‘medical necessities’ bag available.
252.	I am not persuaded that the current bags used by the Applicant are value-for-money. I was not able to locate any recommendation for using the current cooling bags by an occupational therapist or other professional. In the assistive technology assessment template completed by Ms McGregor on 15 April 2024, she does recommend a luggage rack for the large number of items that the Applicants needs to carry. But this does not specifically cover cooler bags. 
253.	As the Applicant is using four cooler bags per year, I am concerned that these cooler bags are not durable enough. An assessment comparing the current cooler bags with options for storing a cooling container within an approved backpack or medical necessities bag would be sensible. It is possible that a more expensive, but more durable, storage solution would represent better value-for-money. It would be helpful if this assessment also considered the recommended weight distributions for safe handling of the PWC. A solution for the Applicant to take cold items with him when accessing the community is essential. However, without a professional assessment of the most suitable options, I am unable to be satisfied that the current cooler bags represent value-for-money for the purpose of section 34(1)(c). I am therefore not satisfied that these cooler bags are a reasonable and necessary support to be funded in the Applicant’s SPS. 
Support (f)(xvii): straps and accessories for wheelchair
254.	The Applicant seeks $163.36 funding for straps and accessories for his wheelchair. These include carabiners, velcro, clips and straps that are used to attach items to his wheelchair. The Applicant explains that these require frequent replacement as ‘they often get damaged passing objects, going through doors, get caught on things, etc, and so typically last 2 to 4 months.’ The Applicant includes photos of the many straps and carabiners attached to his F5 PWC.    
255.	The Agency submitted that they were unclear as to which accessories required replacement and requested confirmation before considering this request further. The Tribunal does not have any further specific submissions from the Agency on this issue. As with some other consumable items, the parties agreed to proceed based on written evidence and submissions. 
256.	Ms S Yates again raises concerns with the use of non-approved aftermarket accessories. As above, I do not consider the straps and accessories as being likely to cause harm to the participant or pose a risk to others. However, as with the cooler bags above, I do think this warrants further assessment. It is concerning to me that the Applicant states that these items get caught on things and this does indicate that there are some risks and drawbacks with the current approach. The level of items that the Applicant is adding to his F5 PWC, and their possible impact on his safe use of the PWC, would benefit from a professional assessment. There may be better storage solutions that do not involve the level of straps and carabiners that the Applicant currently utilises.  
257.	I was unable to locate any recommendation for using the current straps and carabiners by an occupational therapist or other professional. An assessment comparing the current approach with other storage options would be helpful. This assessment should also consider risks to the Applicant regarding straps becoming caught on objects and the safe distribution of weights for items added to the F5 PWC. Without an assessment of the most appropriate storage options, I am unable to be satisfied that the current straps and accessories represent value-for-money for the purpose of section 34(1)(c). I am therefore not satisfied that straps and accessories are a reasonable and necessary support to be included in the Applicant’s SPS. 
Support (f)(xiii):  walking sticks
258.	The Applicant seeks funding of $69.00 per year for foldable walking sticks that are transported on his F5 PWC. The Applicant says that these are subject to breakage or support workers losing parts. The Applicant does not otherwise provide further information in relation to this support request.  However, there are many references to the Applicant’s use of walking aids throughout the Joint Hearing Bundle. For example, in the assistive technology assessment template for the Ki MWC completed by Ms Ford on 28 November 2023, she states that the Applicant: 
Ambulates with a slow pace and uneven gait for short distances with effort using 2 x single point stick and a quad stick. Also will use furniture / walls for support as he cannot use in PWC along the hallway due to clutter. Requires intermittent contact guarding /steading when fatigued to move around the home
Unable to walk >50 metres and needs to rest when ambulating >10 metres.
259.	The Agency’s submissions do not appear to address this item. Ms S Yates appears to be supportive of this item, stating that: the use of walking aids allows Mr Johnstone to safely mobilise within his home; the replacement of broken walking sticks is not a duplication of a support already funded; would not pose a safety risk; and there are no lower cost alternatives. 
260.	Walking sticks would appear to fall within Schedule 1, Item 28(a) of the Transitional Rules which says that “assistive products for walking” in the category “Personal mobility equipment” are NDIS supports unless otherwise provided. Based on the information before me, walking sticks appear to be an NDIS support that the Applicant requires. However, there is not enough information about the specific folding walking sticks, or their need for replacement, that would allow me to determine that consumables funding for this item is reasonable and necessary on an annual basis. 
261.	If the walking sticks require replacement due to damage by support workers, the Applicant should also raise this with the service provider. This may be a matter for performance management or an insurance claim by the service provider.
Reimbursement for consumables expenditure
262.	In the earlier jurisdiction decision in this matter, SM Buxton said that: 
The Respondent submitted, in relation to supports that had already been accessed by a participant but for which funded had not yet been provided in the Statement of Participant Supports: 
“In Pavlakis, Senior Member Buxton observed as follows—albeit in the context of a decision made by the Tribunal itself, rather than a reviewer (at [38]):
The decision of the Tribunal automatically takes effect from the date on which the decision under review has or had effect ... That may date as far back as the CEO’s original decision if aspects of the SPS are to be specified for the supports which should have been specified in the original decision, particularly where the participant has already been meeting the cost. However, for forward looking issues, such as management of funds, re-assessment dates and funding for support not yet paid for by the participant, it may be necessary to expressly stipulate that these supports are to be funded from the date of the decision and not earlier. The preferable approach will depend on the facts in each case.
Consistent with Senior Member Buxton’s observations, the Agency submits that a reviewer (following remittal under section 42D of the AAT Act) or the Tribunal (making a decision under section 43) can decide that a support should be funded ‘as far back as the CEO’s [or the delegate’s] original decision’, or that it should be funded ‘from the date of the decision and not earlier’, or from another point in time.”
This submission squarely puts to rest any concern that jurisdiction in this review to consider reasonable and necessary supports that may already have been provided to the Applicant, but not yet funded in his SOPS, may be affected by a reconsideration following remittal under section 42D. The Tribunal notes the Respondent’s accurate submission that supports cannot be backdated to a start date prior to that of the current plan which is before the Tribunal. 
263.	Consistent with these findings, the Applicant is entitled to be reimbursed for approved consumables that were purchased back to the start date of the original plan under review, being 14 January 2021. However, the Applicant is not entitled to funding for consumables which have not been approved for inclusion in the SPS. Whether the Applicant is required to pay back amounts that may have already been received for non-approved consumables is a matter for the Agency. 
DECISION 
264.	The decisions of the Agency under review are set aside and remitted for reconsideration in in accordance with the direction that the statement of participant supports specifies that the reasonable and necessary supports include:
(a)	An additional 18 days of Short-Term Accommodation for Respite per year;
(b)	An additional 6 hours per week for a second support worker to assist with excursions; and
(c)	Consumables funding for:
(i)	three two-way radios; 
(ii)	wheelchair mounted fans;
(iii)	spray bottles with electric heads; 
(iv)	medication roll packaging; and
(v)	dietary supplements.
265.	All other supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro‑rata from the date on which the supports in the paragraph above are included in the Applicant’s statement of participant supports until the reassessment date.
266.	The management of funding for reasonable and necessary supports is to remain the same as the management of funding for those supports as specified in the Applicant’s existing statement of participant supports.
267.	The date the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports above are included the Applicant’s statement of participant supports.

  
Dates of hearing:	16 to 24 September 2024	
Date final submissions received:	11 November 2024   	
Representative for the Applicant:	Self-represented with support from Mrs Johnstone	
Solicitors for the Respondent:

Counsel for the Respondent:
	Mills Oakley

Genevieve Yates