Sieffert and National Disability Insurance Agency (NDIS)

[2025] ARTA 78

Sieffert and National Disability Insurance Agency (NDIS) [2025] ARTA 78 (7 February 2025)

Applicant:Ms Alanna Sieffert

Respondent:  National Disability Insurance Agency

Tribunal Number:                2023/4858

Tribunal:General Member D Heron 

Place:Brisbane

Date:7 February 2025 

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

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

General Member D Heron

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – transport – short-term accommodation – decision affirmed.

Legislation

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

Cases

G v Minister for Home Affairs (2019) FCAFC 79
McGarrigle v National Disability Insurance Agency (2017) FCA 308
National Disability Insurance Agency v WRMF (2020) FCAFC 79
National Disability Insurance Agency v KKTB (2022) FCAFC 181 at 26
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179 (1979); 2 ALD 634

Secondary Materials

NDIS – Operational Guidelines – Home and Living –  Short Term Accommodation or Respite | NDIS
NDIS – Operational Guidelines –  Including Specific Types of Supports in Plans Operational Guideline - Transport | NDIS

Statement of Reasons

BACKGROUND

1. Ms Sieffert (the Applicant) is a 42-year-old woman who is a participant in the National Disability Insurance Scheme (the scheme). Ms Sieffert became a participant in March 2020 and she currently lives in public housing in NSW.

2. Ms Sieffert met the access requirements for the scheme on the basis of her psychosocial, neurological and intellectual impairments.

3. This is an application for review of a decision of the National Disability Insurance Agency (the Respondent) regarding reasonable and necessary supports to be funded by the scheme.

4. On 1 March 2023 Ms Sieffert’s statement of participant supports in the plan was approved by a delegate of the Chief Executive Officer (CEO) of the Respondent. This is the plan in dispute before me, covering the period 1 March 2023 to 28 February 2025 (the current plan).[1]

   [1] Joint Hearing Tender Bundle (JTB), T13 dated 1 March 2023 page 80

5. On 29 May 2023 Ms Sieffert requested an internal review of the decision to approve the statement of participant supports in the plan.[2]

   [2] JTB, T2 dated 5 July 2023 page 19

6. On 5 July 2023 a delegate of the CEO affirmed the original decision (the Internal Review Decision).[3]

   [3] JTB, T1 dated 6 July 2023 page 6

7. On 6 July 2023 Ms Sieffert filed an application for review in the Administrative Appeals Tribunal (the AAT).

8. At the hearing on 15 January 2025 held via Microsoft Teams, Ms Sieffert represented herself and the Respondent was represented by Ms Buxton of Counsel instructed by Maddocks. No other witnesses were called to give evidence. The Joint Tender Bundle was admitted into evidence and marked as Exhibit 1.

   RECENT TRIBUNAL AND NDIS ACT AMENDMENTS

9. On 14 October 2024 the Administrative Appeals Tribunal (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 (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.

10. Significant changes to the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) are also of note here. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Back on Track Act) commenced on 3 October 2024 and the amendments pursuant to section 34 of the NDIS Act will apply to this review. The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) also commenced on the same date. The Transitional Rules set out in detail supports that are/are not NDIS supports.[4]

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

    ISSUES

11. The issues before me are that Ms Sieffert is seeking funding for the following two supports in her current plan:

    ·28 days of respite; and

    ·Level 3 transport.

12. I will use the terms ‘respite’ as characterised by the Applicant, and ‘short term accommodation’, as preferred by the Respondent, interchangeably throughout this decision.

13. The Agency contends that these two supports are not ‘reasonable and necessary’ for the purposes of s 34(1) of the NDIS Act.

    THE CURRENT PLAN

14. The current plan is a two-year plan that is largely plan managed bar some stated capacity building supports which remain Agency managed, along with transport funding which is paid to Ms Sieffert fortnightly on a pro-rata basis into her nominated bank account.

15. The current plan has funding for:[5]

    Core Supports

    (a) Core supports to assist with daily activities, community participation and low cost assistive technology;

    (b) Transport level 1;

    [5] JTB, T13, NDIS Plan 1.03.23–28.02.25 page 80

    Capacity Building Supports

    (c) Plan management funding;

    (d) Improved daily living supports;

    (e) Improved health and wellbeing supports;

    (f) Improved Relationships for specialist behaviour intervention therapy supports and the associated assessments, plan and training (Agency managed).

16. The Tribunal notes significant funding for Support Coordination is also included for the purpose of understanding, implementing and utilising the current funding to pursue plan goals (Agency managed).

    ROLE OF THE TRIBUNAL

17. The role of the Tribunal is to make the correct or preferable decision based on the material before it. In reviewing the decision:

    (i)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[6] and

    (ii)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[7]

    [6] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 37

    [7] Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at 51; QDKH, by his litigation representative BGJF v National Disability Insurance Agency (2021) FCAFC 189

18. The relevant provisions under the Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.

    THE LEGAL FRAMEWORK

    National Disability Insurance Scheme Act 2013 (Cth)

19. At the time of the commencement of the hearing, section 34 of the NDIS Act states:

    Reasonable and necessary supports

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

    (a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

    (b)  the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

    (c)  the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

    (d)  the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

    (e)  the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

    (f) the support is an NDIS support for the participant

    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.

    (2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

20. The phrase ‘reasonable and necessary’ is not defined in the Act. In discussing the phrase McGarrigle Mortimer J stated as follows:[8]

    Whether a support is “reasonable” requires a different assessment to whether a support is “necessary” … the word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports.

    [8] [2017] FCA 308 at 91

21. The Full Court in National Disability Insurance Agency v WRMF[9] also considered the meaning of reasonable and necessary supports:

    The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings … Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

    Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant.

    [9] National Disability Insurance Agency v WRMF (2020) FCAFC 79 at 149-151

22. In National Disability Insurance Agency v KKTB[10] the Full Court stated that:

    Each decision ... to approve a statement of participant supports is a decision about an individual, and their needs ... the legislative scheme demands a focus that is very much on the support needs of the individual participant.

    [10] (2022) FCAFC 181 at 26

23. Section 34(1) is cumulative and therefore all the criteria must be met for a support to be reasonable and necessary. The Back on Track Act has inserted s 34(1)(aa) and s 34(1)(f) now requires a support to be ‘an NDIS support for the participant’.

24. To identify what constitutes a NDIS support I turn to section 10 of the NDIS Act for the purposes of section 34(1)(f) of the NDIS Act (as amended):

    Supports that are NDIS supports

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

    (a)  participants or prospective participants generally; or

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

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

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

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

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

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

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

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

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

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

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

    Section 35 of the NDIS Act provides for the creation of regulations regarding the provision of reasonable and necessary support or general support that will not be funded or provided under the NDIS. The relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules).

25. Rules 3 and 5 of the Support Rules relate specifically to subsections 34(1)(c)-(e) of the NDIS Act and state:

    Value for money

    3.1     In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

    (a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

    (b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

    (c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

    (d)     for supports that involve the provision of equipment or modifications:

    (i)      the comparative cost of purchasing or leasing the equipment or modifications; and

    (ii)     whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

    (e)     whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

    (f)      whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

    Effective and beneficial and current good practice

    3.2     In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

    (a)     published and refereed literature and any consensus of expert opinion;

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

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

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

    General criteria for supports

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

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

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

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

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

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

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

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

26. I will consider the purpose and objectives of the Act in accordance with section 34(1) in making my decision.

    OPERATIONAL GUIDELINES

27. The Respondent has created Operational Guidelines in relation to reasonable and necessary supports in a participant’s plan.[11] The Federal Court held in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[12] that a Tribunal should consider relevant government policy which is not inconsistent with the provisions or objects of the legislation.[13]

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

    [12] [1979] AATA 179 (1979); 2 ALD 634

    [13] Ibid at 171

28. The Guidelines relevant to this review are the NDIS – Operational Guidelines – Reasonable and necessary supports and NDIS – Transport and Home and Living – Short Term accommodation.[14]

    [14] NDIS Webpage: ourguidelines.ndis.gov.au – Including Specific Types of Supports in Plans Operational Guideline - Transport | NDIS and Short Term Accommodation or Respite | NDIS

    EVIDENCE

29. I have considered all the written evidence provided in the Joint Tender Bundle filed with the Tribunal and the oral evidence provided at the hearing, including the parties’ closing submissions. I will refer to the evidence that is directly relevant to the determination of this matter.

    Applicant’s Position

30. In making my decision and pursuant to section 33(5)(a) of the NDIS Act I have considered the Applicant’s current plan goals which are as follows:

    Short-term

    ·I would like to improve my mental and physical health as much as possible.

    ·I would like support to improve my skills in everyday living (booking appointments, meetings, filling out paperwork and house chores).

    ·I would like support to access the community to make social connections and develop new friendships and maintain them.

    Medium-term/Long-term

    ·I want a part time job.

    ·I want to learn how to plan, cook, shop healthy meals.

1. Ms Sieffert also relies upon the following evidence provided in the Joint Tender Bundle documents filed with the Tribunal:

   ·Report of Heather Cutten (Occupational Therapist) dated 6 June 2024.

   ·Report of Sarah Jacek (Neuropsychologist) dated 27 March 2021.

   ·Applicant’s letter to Tribunal dated 25 October 2024.

2. Ms Sieffert gave evidence at the hearing, and I found her oral evidence to be truthful. Her oral evidence can be summarised as:

   ·She receives the Disability Support Pension (DSP).

   ·She is not currently employed or looking for a job.

   ·She is not currently involved in any leisure activities, study or day programs.

   ·She receives her transport funding via fortnightly payments into her bank account.

   ·She is houseproud but can at times feel ‘trapped’ in her home and in her hometown.

   ·She requires a support worker to accompany her when travelling long distances and/or when attending unfamiliar places.

   ·She would like to be supported to visit her mother who resides in Queensland who she describes as her ‘rock’.

   ·She would like to be supported to visit new places interstate, such as Adelaide and Perth.

   Ms Heather Cutten – occupational therapist

3. Ms Cutten is an occupational therapist who has been working with the Applicant since 2020.

4. She did not give oral evidence at the hearing but provided written evidence to the Tribunal – a report dated August 2020, a letter dated May 2023 and report dated June 2024. She explained that Ms Sieffert ‘can be impulsive and travel to unfamiliar places of an evening and lacks insight into personal safety and risks of catching public transport alone at night. Of concern is her vulnerability to exploitation and abuse from others.’[15] Ms Cutten explains Ms Sieffert would benefit from undertaking structured training around personal safety skills for community participation.

   [15] JTB, T3, Report Heather Cutten dated 18 August 2020 page 32

5. In relation to 28 days of respite request Ms Cutten explained that Ms Sieffert often becomes overwhelmed at night and that respite would offer the opportunity for her to be ‘observed, supported and redirected around the clock and data can be collected and communicated to stakeholders to help generalise and improve training strategies and the fidelity of … supports once she returns back home’.[16]

   [16] JTB, A2, Report Heather Cutten dated 6 June 2024 page 172

   Ms Sarah Jacek – clinical neuropsychologist

6. Ms Jacek is a clinical neuropsychologist, and her 2021 neurophysiological assessment was filed with the Tribunal. Ms Jacek did not give oral evidence at the hearing. Her report outlines that Ms Sieffert primarily has difficulties in executive functioning. Ms Jacek states ‘this means she will find it hard to comprehend and consider high-level concepts’.[17]

   [17] JTB, A3, Neuropsychological assessment dated 2021 page 179

7. In her report Ms Jacek describes that Ms Sieffert ‘is unlikely to be able to visualise problems and thus is likely to feel she does not have contingencies. She also has a limited capacity to generate alternatives, so will not be able to think about a problem from multiple perspectives. She will be more comfortable with predictability and routine and will find it difficult to manage novel situations and complex decisions.’[18]

   [18] JTB, A3, Neuropsychological assessment dated 2021 page 181

   Transport funding

8. Ms Sieffert initially requested in her AAT Review Application unlimited kilometres to be funded.[19] The Respondent’s Statement of Issues, Facts and Contentions has particularised and quantified this as a request for level 3 transport funding paid periodically. The Applicant has not raised any objection to this particularisation as the funding being sought.  

   [19] JTB, T1, AAT Application dated 6 July 2023 page 9

9. The Respondent’s Operational Guideline under Transport provides information about the Agency’s rationale for circumstances in which transport funding is considered as a reasonable and necessary support. The Transport Operational Guideline states there are generally three levels of transport periodic funding:[20]

   Level 1

   the NDIS will provide up to $1784 per year for participants who are not working, studying or attending day programs but are seeking to enhance their community access

   Level 2

   the NDIS will provide up to $2676 per year for participants who are currently working or studying part-time (up to 15 hours per week), participating in day programs and for other social, recreational or leisure activities

   Level 3

   the NDIS will provide up to $3456 per year for participants who are currently working, looking for work, or studying, at least 15 hours per week and are unable to use public transport because of the disability.

   [20] NDIS Operational Guideline – Transport, Including Specific Types of Supports in Plans Operational Guideline – Transport | NDIS

10. During questioning by the Respondent at the hearing it became clear that Ms Sieffert was under the misapprehension that she could only use a certain amount of kilometres with her transport funding per day.[21] The Respondent clarified that no limit on daily kilometres existed and that the purpose of fortnightly transport funding was to help with the cost of travel to be used at her own discretion.

    [21] Hearing Transcript at 48.40 to 49.00

11. In considering this request for funding, I turn to Part 5 of the Support Rules that gives general criteria for supports, including those that will not be funded or provided. Rule 5.1 states that a support will not be provided or funded under the NDIS if:

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

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

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

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

12. Rule 5.2 of the Support Rules states:

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

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

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

13. The Transport Operational Guideline states that:

    Transport should only be funded where it has been determined to be reasonable and necessary, where it is an additional cost incurred solely and directly as a result of a participant’s disability support needs and, where ancillary to another funded support, it is a cost which the participant would not otherwise incur.

    It does not follow, merely because transport is ancillary to a funded support, that it should be funded. The circumstances in which transport may be funded are strictly limited.

    Consideration – Transport

14. Transport funding under the NDIS is paid to participants to assist with the cost of travel for those who can’t access public transport independently. Transport funding can be either paid via periodic payments fortnightly or as a flexible support across all Core funding categories should a participant choose not to receive as periodic payments.

15. Ms Sieffert gave oral evidence that she receives her transport funding paid fortnightly. The current NDIS plan states this is funded at the level 1 rate. She explained that she does not currently participate in any day programs and is not employed.

16. Ms Sieffert in her letter to the Tribunal outlined her request for increased transport was: ‘to see new and different things that is away from the train line and bus route. And to help me learn about new places.’[22]

    [22] JTB, A1, Applicant letter to Tribunal dated 25 October 2024 page 170

17. Regarding day-to-day transport expenses in RTRH and National Disability Insurance Agency[23], the Tribunal stated: ‘… on many occasions now the Tribunal has accepted the proposition that the cost of transportation is a day-to-day living cost … transportation is a feature of everyday life for most Australians and the cost of transportation is a cost most adults bear on a day-to-day basis. Commonly such costs relate to … the use of transport services in the form of fares, tickets or passes.’

    [23] RTRH and National Disability Insurance Agency (2022) AATA 205 at 181

18. During the hearing Ms Sieffert explained her position that it would be beneficial for her to have the transport funding readily available should she need to visit her mother in Queensland urgently.

    REASONABLE AND NECESSARY

19. I will now consider each of the criteria in s 34(1) of the NDIS Act as it relates to the transport level 3 support.

    Whether the level 3 transport funding is necessary to address the needs arising from the impairment in relation to which she met the disability requirements: section 34(1)(aa) of the NDIS Act

20. Ms Sieffert met access on the basis of her psychosocial, neurological and intellectual impairments. At the hearing Ms Sieffert gave oral evidence about experiencing loneliness and feeling trapped in her unit and the town she lives in. She stated that she requires the assistance of another person when travelling to new places and long distances. She explained that she can become overwhelmed in new environments and in negotiating the unknown.

21. Ms Cullen states in her report ‘despite extensive training and input over the past four years Alanna still demonstrates significant maladaptive behaviours, including gullibility, following instruction, regulating her emotions, problem solving and communicating safely and effectively with others when catching public transport for more than short distances. She requires the assistance of another person, privacy of a private vehicle and options to remove herself without delay for travel such as to visit her mother in Queensland.’[24]

    [24] JTB, A2, Report Heather Cullen dated 6 June 2024 page 173

22. The Agency agrees with the Applicant that s 34(1)(aa) is satisfied. On the evidence provided I am also satisfied that the transport funding meets s 34(1)(aa) in that it is necessary to address the needs arising from the impairments in relation to which Ms Sieffert met the disability requirements for access to the scheme.

    Whether the transport funding will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act

23. Section 33(1)(a) of the NDIS Act states that a participants plan must include the statement of goals and aspirations prepared by the participant that identifies the goals, objectives and aspirations they wish to pursue.

24. Ms Sieffert’s current plan includes the short-term goal to improve her mental and physical health and the medium/long-term goal to have a part-time job.[25] At the hearing Ms Sieffert explained the increased transport would be used to travel to new places and to visit her mother with support.

    [25] JTB, T13, NDIS Plan 1.03.23–28.02.25 page 80

25. I have found that on the evidence Ms Sieffert’s requested support for increased transport assistance offers only a tenuous link between the current plan goals and the support that she seeks. I am not satisfied that there is sufficient probative evidence before the Tribunal that this would assist in the pursuit of the current plan goals to any greater degree than the supports presently available. The criterion in s 34(1)(a) is therefore not met.

26. Given I have found that s 34(1)(a) is not met, it follows that level 3 transport is not a reasonable and necessary support. I have considered the remaining criteria for completeness.

    Whether the support will assist the participant to undertake activities to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act

27. Section 34(1)(b) of the NDIS Act provides that the Tribunal must be satisfied that the requested support ‘will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation’. Ms Sieffert gave evidence at the hearing that she was involved in a local Dungeons and Dragons meet-up and that she would like to start attending this again. She explained she had discontinued due to the late evening finish time. She explained that she did not feel comfortable walking home in the dark, nor was she comfortable catching a taxi due to cost. The Tribunal is of the view that Ms Sieffert may be aided by her current funded supports to problem-solve the above circumstances to enable her participation in this activity to enhance her social circle.

28. Ms Sieffert contended that level 3 transport funding will enhance her capacity to participate in seeing new places and travelling to visit her mother. However, I am not satisfied by the evidence presented before the Tribunal that level 3 transport will assist in the pursuit of Ms Sieffert’s current plan goals to any greater degree than the funding that is currently available. It is for the above reasons that the Tribunal is not satisfied that s 34(1)(b) is met.

    Whether the support represents value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support: s 34(1)(c) of the NDIS Act

29. The basis for the increase in transport funding by Ms Sieffert involves ambiguity and speculation about the context and the urgency of transport needs that may arise from time to time. This makes the assessment of whether the support represents value for money a difficult one. In considering this, the Tribunal looks to Rule 3.1 of the Support Rules stating that a support will represent value for money if, among other things, there are no comparable supports that would achieve the same outcome at a lower cost. There has been no suggestion made by Ms Sieffert that the amount of available funding in the Core budget is inadequate to achieve her current plan goals. Further, the Tribunal considers there was a lack of detail specifying what the increase could achieve, or about any comparable supports or trials undertaken by Ms Sieffert.

30. Ms Sieffert explained at the hearing that she had not comprehensively researched her plan and the associated costs of visiting her mother in Queensland, though she did confirm the cost of flights would be her own responsibility to pay privately and that they would be approximately $600. The Tribunal is of the view that the Capacity Building supports funded in the current plan may aid Ms Sieffert in working through the steps involved in planning and problem-solving for this trip. This planning may assist to particularise her request and provide certainty around whether her current supports will be adequate.

31. On the current evidence the Tribunal does not consider that funding level 3 transport 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, nor has the evidence shown that it would be likely to reduce the cost of supports funded in the long term. The requirement of value for money in s 34(1)(c) has not been met.

    Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34(1)(d) of the NDIS Act

32. Ms Sieffert explained at the hearing that she finds it beneficial being with her mother, and that it is valuable to spend time with her face to face. She agreed that they are able to communicate over the phone regularly but that it was not the same as in-person visits. While the Tribunal accepts that visiting with her mother in-person would be beneficial as an experience versus their regular phone calls, the request itself lacks particularisation addressing why the current funding is insufficient. On the available evidence the Tribunal has not been persuaded that the periodic level 3 transport funding would substantially improve life stage outcomes or be of long-term benefit to Ms Sieffert.

33. On the evidence the Tribunal is not satisfied that level 3 periodic transport is likely to be effective and beneficial alongside the existing funded support in the plan. Therefore, the requirement that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice under s 34(1)(d) of the NDIS Act, is not met.

    Whether 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: s 34(1)(e) of the NDIS Act

34. At the hearing Ms Sieffert confirmed she does not have informal supports nearby to assist her. Based on the evidence I am satisfied that the requirement in s 34(1)(e) of the NDIS Act is not relevant to this matter and therefore I have not considered it further.

    The support is an NDIS support for the participant: s 34(1)(f) of the NDIS Act

35. Section 34(1)(f) is part of the new legislation and requires that a support is ‘an NDIS support’ and it is also able to meet the reasonable and necessary criteria specified in ss 34(1)(aa) to (e). Subsection 10(4) now allows the NDIS to classify a support as ‘not an NDIS support’ in the rules. Rule 5(2) gives effect to s 10(4) stating that if a requested support is listed under Schedule 2, then it is ‘not an NDIS support’.

36. On the evidence I am satisfied that the request for level 3 transport is an NDIS support for Ms Sieffert under s 34(1)(f) as it falls under Item 6 of Schedule 1 as a support that assists participants who cannot travel or use public transport independently.

37. However, as the Tribunal must be satisfied that all of the six requirements in ss 34(1)(aa)‑(f) are met, accordingly the level 3 transport funding request fails as a reasonable and necessary support.

    RESPITE

38. The NDIS Guidelines explains that funding for respite, generally known by the scheme as ‘short‑term accommodation’, is for participants who need to live out of home for a short period. The intended purpose of this funding is to support the participant and their informal carers by providing them a short break from their caring role.

    The Applicant’s position

39. Ms Sieffert explained in her letter to the Tribunal that respite will ‘help me get out of the same old routine. It will help me explore new surroundings.’[26]

    [26] JTB, A1, Applicant letter to Tribunal dated 25 October 2024 page 170

40. At the hearing Ms Sieffert expressed that her understanding of respite funding was she could travel to new locations and have a support worker with her for the duration of the trip. She speculated that this might include staying overnight somewhere along the journey. When specifically talking about her goal to visit her mother in Queensland, she reasoned that a support worker would travel alongside to ensure she safely arrived at her mother’s home. Once at her mother’s home she explained that she would likely stay without any formal supports. At the conclusion of the visit a support worker could then assist her on the trip home.[27]

    [27] Transcript 57.00 to 58.04

41. In support of this position, the report of Ms Cutten, occupational therapist, offers that respite would provide the ‘opportunity to be around others and trusted reliable supporters in a safe and healthy environment where she can engage in blocks of skills training’.[28]

    [28] JTB, A2, Report Heather Cutten dated 6 June 2024 page 173

    CONSIDERATION – RESPITE

42. As stated, under the NDIS the purpose for respite funding is to assist to strengthen the informal support network of the participant with their caring responsibilities.

43. Ms Sieffert illustrated during the hearing the deep connection that she has with her mother and credited her mother for ‘making her the polite and kind person I am today’.[29] Their strong bond was evident for the Tribunal and Ms Sieffert’s wish to be able to visit face to face with her mother was wholly understandable. 

    [29] Transcript at 59.00

1. Ms Sieffert confirmed during the hearing she does not reside with any informal supports currently, and the evidence provided to the Tribunal confirms her current plan already provides for 15 hours per week of 1:1 support for social and community participation along with significant capacity building supports for improved relationships.

2. While the Tribunal understands Ms Sieffert wishes to see new places and can feel trapped in her current environment, within the prescribed funding this issue could be addressed using the current Core and Capacity Building budgets. The current plan also includes substantial Support Coordination funding for the purposes of implementing current funding, utilising the plan and building capacity. Funding short-term accommodation on top of the current Daily Activities and Capacity Building supports would be a duplication of funding. The Operational Guidelines states that Ms Sieffert can choose to use her current Core budget on Short Term Accommodation.[30]

   [30] NDIS Operational Guideline – Home and Living – Short Term Accommodation or Respite | NDIS

3. I have considered the reports and letters of Ms Cutten in support of respite and the report of Ms Jacek, however I am not persuaded by these reports that the outcomes being sought could not be obtained within the current plan funding.

4. On the evidence Ms Sieffert has not been able to particularise her request to show any lower cost or alternative methods for social and community participation that have been trialled. It does not hold that short-term accommodation funding 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 under s 34(1)(c) of the NDIS Act.

5. Overall, the Tribunal is not satisfied that there is any identified basis for the funding of 28 days of respite and therefore it does not meet the requirements under s 34(1)(aa) - (f) of the NDIS Act as reasonable and necessary supports.

   CONCLUSION

6. The Tribunal is not satisfied on the evidence that the 28 days of respite funding and level 3 transport meet the requirements of s 34(1) of the NDIS Act as reasonable and necessary supports.

   DECISION

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

   Date of hearing:  15 January 2025

   Applicant:  Self-represented

   Counsel for the Respondent:                    J Buxton

   Solicitors for the Respondent:                   E Horricks, Maddocks Lawyers