Federal Court of Australia

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

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s appeal is dismissed.

2.    The Applicant pay the Respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

HESPE J:

Introduction

1    This is an appeal from a decision of the Administrative Review Tribunal to set aside a decision of a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (applicant). The effect of the decision of the delegate was to approve a statement of participant supports forming part of Mr Eastham’s (respondent) previous National Disability Insurance Scheme (NDIS) plan. The Tribunal remitted the matter for reconsideration by the Agency, with a direction that it facilitate the approval of a new statement of participant supports which includes provisions to approve funding to purchase a mobility scooter (and associated accessories and services) in a total sum of $7,333.80 and which replicates, on a pro rata basis, all of Mr Eastham’s other existing supports as set out in his current statement of participant supports.

2    The essential issue in the appeal concerns the correctness of the Tribunal’s conclusion that the mobility scooter is a reasonable and necessary support under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) in the circumstances of this case.

Statutory framework

3    The background to the NDIS Act was described by Mortimer J (as her Honour then was) in Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 233 FCR 201 at [12]:

The Revised Explanatory Memorandum (p 1) described the process which led to the Act in the following way:

In August 2011, the Prime Minister released the Productivity Commission Inquiry Report, Disability Care and Support, which identified that disability care and support in Australia was “underfunded, unfair, fragmented and inefficient”, and that major reform was needed.

Since the release of this report, the Commonwealth and all state and territory governments have agreed on the need for major reform in the form of a National Disability Insurance Scheme, which:

•    will take an insurance approach that shares the costs of disability services and supports across the community;

•    will fund reasonable and necessary services and supports directly related to an eligible person’s individual ongoing disability support needs; and

•    will enable people with disability to exercise more choice and control in their lives, through a person-centred, self-directed approach, with individualised funding.

The Bill establishes a scheme that gives effect to these critical principles, and gives effect in part to Australia’s obligations under the United Nations Convention on the Rights of Persons with Disabilities.

4    The NDIS Act establishes the NDIS. The NDIS Act sets out, inter alia, the objects and principles of the operation of the NDIS, the manner in which a person can become a participant in the NDIS and the types of supports that are to be included in a participant’s statement of participant supports.

5    The requirements for a person to become an NDIS participant include satisfaction of the disability requirement provided for in s 24 of the NDIS Act or the early intervention requirement provided for in s 25 of the NDIS Act (it was common ground that s 25 has no application in the present case). Relevantly, s 24 provides that:

(1)    A person meets the disability requirements if:

(a)    the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b)    the impairment or impairments are, or are likely to be, permanent; and

(c)    the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(i)    communication;

(ii)    social interaction;

(iii)    learning;

(iv)    mobility;

(v)    self-care;

(vi)    self-management; and

(d)    the impairment or impairments affect the person’s capacity for social or economic participation; and

(e)    the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime.

(2)    For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.

(3)    For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.

(4)    Subsection (3) does not limit subsection (2).

Note 1:        The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).

Note 2:        National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

6    Once a person becomes a participant in the NDIS, the CEO of the Agency must facilitate the preparation of a plan for that individual. The plan includes a statement of participant supports, which sets out, among other matters, the supports that will be provided or funded through the NDIS.

7    Mr Eastham’s plan is an “old framework plan” governed by Subdiv C of Pt 2, Div 2 of the NDIS Act. Section 33 of the NDIS Act sets out the matters that must be included in a participant’s “old framework plan”. Relevantly, s 33(1) and (2) provide:

Participant’s statement of goals and aspirations

(1)    A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:

(a)    the goals, objectives and aspirations of the participant; and

(b)    the environmental and personal context of the participant’s living, including the participant’s:

(i)    living arrangements; and

(ii)    informal community supports and other community supports; and

(iii)    social and economic participation.

Statement of participant supports

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

(a)    the general supports (if any) that will be provided to, or in relation to, the participant; and

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

(c)    the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; and

(d)    the management of the funding for supports under the plan (see also Division 3); and

(e)    the management of other aspects of the plan.

8    The statement of participant supports is required to be approved by the CEO of the Agency. Section 34 of the NDIS Act sets out the matters that the CEO must be satisfied of when approving a statement of participant supports. (Section 34 as it stood at the date of the Tribunal’s decision is set out at [11] below.)

9    The NDIS Act was amended in 2024 by the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (2024 Act). The amendments were made following an independent review of the NDIS. By those amendments, instead of NDIS participants being provided with supports that were individually funded, each NDIS participant was to be provided with a “whole of person” budget to fund supports for that participant. According to the Revised Explanatory Memorandum to the Bill for the 2024 Act, the amendments were intended:

to clarify the NDIS access requirements and the supports that the NDIS will provide a participant, to create a new model for determining a reasonable and necessary budget, and provide more flexibility on how the Commissioner can take regulatory actions to protect NDIS participants from abuse, harm and neglect.

Although participants with new framework plans will no longer receive ‘reasonable and necessary supports’, the concept of what is reasonable and necessary for participants remains at the core of the NDIS with the creation of the ‘reasonable and necessary budget’.

10    Amongst the amendments made in 2024:

(1)    a new definition of NDIS supports was introduced. Section 10(1) was introduced to provide that a support will be an NDIS support for a person if it is declared by rules made under the NDIS Act to be an NDIS support for participants or prospective participants generally, or a class of participants or prospective participants that includes the person. Section 10(1) was subject to s 10(4), which enables rules made under the NDIS Act to declare that a support is not an NDIS support for participants or prospective participants generally, or a class of participants or prospective participants.

(2)    an additional criterion was added to s 34(1) (new para (1)(aa)), that the CEO must be satisfied that the supports included in a statement of participant supports are necessary to address the needs of the participant arising from an impairment that meets the disability requirements (in accordance with s 24) or early intervention requirements (in accordance with s 25). According to the Revised Explanatory Memorandum, this amendment was to clarify “that the NDIS only funds supports for impairments that meet the disability or early intervention requirements, as per the Scheme’s original intent”. The amendment was said to “reflect[] the Agency’s current operational guidelines and will provide clarity to participants and other service systems about what supports will be funded through the NDIS. It will not require participants to repeatedly prove their disability.”

(3)    Section 34(1)(f) was replaced “with a requirement that any general supports provided or reasonable and necessary supports funded are NDIS supports.”

11    Following the amendments made by the 2024 Act, s 34 of the NDIS Act relevantly provides:

(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.

12    Various supplementary legislative instruments (NDIS Rules) have been made pursuant to s 209 of the NDIS Act to provide further detail about the operation of the NDIS Act. The NDIS Rules are to be read in conjunction with the NDIS Act. The NDIS Rules made by the Minister under s 209(1) of the NDIS Act can prescribe matters that are:

(a)    required or permitted by the NDIS Act to be prescribed by the NDIS Rules; or

(b)    necessary or convenient to be prescribed in order to carry out or give effect to the NDIS Act.

13    Section 209(9)(e) of the NDIS Act specifies that the NDIS Rules may not directly amend the text of the NDIS Act.

14    One set of NDIS Rules made under the NDIS Act was the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (2013 Supports Rules). Those rules were about assessment and determination of the reasonable and necessary supports that were to be funded, and the general supports that were to be provided, for participants in the NDIS. Rule 4.1 of the 2013 Supports Rules provided:

Method

4.1    When deciding whether or not to approve a statement of participant supports under section 33 of the [NDIS] Act, the CEO is to:

(a)    identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and

(b)    assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and

(c)    assess risks and safeguards in relation to the participant; and

(d)    relate support needs to the participant’s statement of goals and aspirations.

15    Part 5 of the 2013 Supports Rules relevantly provided:

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.

16    As part of the transition of existing NDIS participants to the new NDIS plan framework, the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) (2024 Transitional Rules) were made pursuant to item 138 of Sch 1 to the 2024 Act. Item 138 of Sch 1 to the 2024 Act provides:

(1)    The Minister may, by legislative instrument, make rules prescribing matters of a transitional nature (including prescribing any saving or application provisions) relating to the amendments or repeals made by this Schedule.

(2)    Without limiting subitem (1), rules made under this item before the end of the period of 12 months starting on the day this Schedule commences may provide that provisions of this Schedule, or any other Act or instrument, have effect with any modifications prescribed by the rules. Those provisions then have effect as if they were so modified.

(3)    To avoid doubt, the rules may not do the following:

(a)    create an offence or civil penalty;

(b)    provide powers of:

(i)    arrest or detention; or

(ii)    entry, search or seizure;

(c)    impose a tax;

(d)    set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;

(e)    directly amend the text of an Act.

(4)    This Schedule (other than subitem (3)) does not limit the rules that may be made for the purposes of subitem (1).

17    Section 5(1) and (2) of the 2024 Transitional Rules relevantly provide (emphasis added):

5 What supports are NDIS supports—general rule

Supports that are NDIS supports unless otherwise provided

(1)    For the purposes of subsection 10(1) of the NDIS Act, a support covered by column 2 of an item in the table in clause 1 of Schedule 1 to this instrument is an NDIS support (subject to subsections 10(4) and (9) of the NDIS Act and subsection (2) of this section) for:

(a)    participants specified in column 3 of the item who have old framework plans; and

(b)    prospective participants specified in column 3 of the item, other than prospective participants who, if they were participants, would be required to be given notice under subsection 32B(2) of the NDIS Act (participants that are to have new framework plans).

Note 1:    Subsection 10(4) of the NDIS Act allows supports to be declared to not be NDIS supports for participants or prospective participants. Those supports are declared under subsection (2) of this section.

…

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.

Note 1:    Subsection 10(6) of the NDIS Act allows the CEO, on application by a participant, to determine that a support is taken to not be declared under subsection 10(4) of that Act in relation to the participant if, among other things, the CEO is satisfied that the support would replace one or more other supports that are NDIS supports for the participant.

Note 2:    Determinations under subsection 10(6) of the NDIS Act are referred to in this instrument as replacement support determinations. For additional rules about replacement support determinations, see section 7 of this instrument.

18    Relevantly, the table in cl 1 of Sch 1 to the 2024 Transitional Rules provides:

19    Relevantly, the table in cl 1 of Sch 2 to the 2024 Transitional Rules provides:

20    Section 4(1) of the 2024 Transitional Rules relevantly provides:

(1)    In this instrument:

…

standard item for a participant or prospective participant means an item that is not modified or adapted to address the functional impairments of the participant or prospective participant

21    Another set of rules made pursuant to item 138 of Sch 1 of the 2024 Act as part of transitioning existing NDIS participants to the new NDIS plan framework was the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) (2024 Miscellaneous Rules). Section 7 of the 2024 Miscellaneous Rules applies to “old framework plans” which contain a statement of participant supports that is approved or varied during a certain time period. The Tribunal proceeded on the basis that the 2024 Miscellaneous Rules applied to Mr Eastham’s plan and the parties did not dispute this on appeal to this Court. Section 7(3) provides for a further criterion of which the CEO must be satisfied in relation to each support specified in a statement of participant supports, in addition to the matters set out in s 34(1) of the NDIS Act. Section 7(3) describes that additional criterion as follows:

The matter of which the CEO must be satisfied is that the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

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

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

The Tribunal decision

Facts

22    The following facts were found by the Tribunal. They are largely uncontested.

23    At the time of the Tribunal decision Mr Eastham was aged 59. He lives in Castlemaine, rural Victoria.

24    Mr Eastham has been a participant in the NDIS since August 2021. He was granted access to the NDIS on the basis of an impairment to his vision and hearing.

25    Mr Eastham also has physical and sensory impairments relating to several medical conditions affecting his lower back, neck, legs and hips. He has sores and blood clots in his legs which impact his capacity for walking and for which he is awaiting surgery.

26    Mr Eastham attends the Castlemaine township (town) almost every day and sometimes more than once a day.

27    Due to his vision impairment, Mr Eastham is unable to drive a car and does not possess a driver’s licence.

28    Mr Eastham cannot walk the distance from his house to the centre of town. One of the reasons Mr Eastham is unable to walk to the bus stop (at least without taking regular breaks) to catch the local bus into town is because of the blood clots in his legs. He cannot carry too much weight because of his lower back problem.

29    Mr Eastham cannot catch the local bus in the morning because his pain medications do not begin to work until 10.30 am.

30    Mr Eastham suffers from migraines. He claimed to suffer from about 15 of them per month, with “really bad ones” about once a month.

31    Mr Eastham could not use a four-wheeled walking frame with a seat and basket to get to the bus stop because of the terrain and because the footpaths are not even, or are steep, or absent altogether in some places.

32    The local bus timetables indicated that the local bus to town ran reasonably regularly on Monday to Friday but did not run in the evenings or over the weekends or public holidays.

33    Under his then current statement of participant supports, Mr Eastham was funded for $17,862.80 for “core supports” of which $1,784 was described as for:

Transport

Support to access work or travel to participate in social and community activities

My Transport funding will be: paid as fortnightly instalments into my nominate [sic] bank account

Position of the Parties before the Tribunal

34    Mr Eastham sought funding in the sum of $7,833.80 for a mobility scooter (together with associated accessories and services) as per a quotation he received for a particular model of mobility scooter. If his request for funding of the scooter was not approved, Mr Eastham sought an increase to his current level of NDIS recurring travel allowance.

35    Before the Tribunal, Mr Eastham claimed he needed a mobility scooter because the availability of public transport into town was very limited, he could not walk into town and due to his vision impairment he is unable to drive a car. He claimed that if he had a mobility scooter he would be able to access the community and the centre of town independently and at his own pace and would not need to rely upon a support worker. Travel to town was important for Mr Eastham because he participates in the community, including by volunteering with the SES, and he feels isolated when he cannot get into town. He would also benefit from a mobility scooter to attend his quarterly appointments at the Eye and Ear Hospital in Melbourne as he often loses his way trying to manage the tram service in Melbourne. He could take a mobility scooter on the V-Line train service and reach the hospital without needing to catch a tram or have a support worker with him.

36    It was common ground that the Tribunal was required to apply the criteria in s 34(1) of the NDIS Act as amended by the 2024 Act.

37    Mr Eastham claimed his need for a mobility scooter to help him mobilise around his local town independently was directly linked to his disability because he was unable to hold a driver’s licence due to his vision impairment.

38    The Agency contended before the Tribunal that the mobility scooter was not a “reasonable and necessary support” under s 34(1) of the NDIS Act. The Agency submitted that Mr Eastham required the mobility scooter as a result of his claimed physical impairments and not as a result of his vision and hearing impairments on the basis of which he was granted access to the NDIS.

39    The Agency contended that:

(a)    Mr Eastham was capable of walking to the bus stop (which was 1.1 km away from his home);

(b)    Mr Eastham was capable of riding on a bus;

(c)    there is a local bus service to and from town which Mr Eastham can catch; and

(d)    the local bus service was not “infrequent”.

40    The Agency contended that the mobility scooter was not an NDIS support as defined and therefore the criterion in s 34(1)(f) of the NDIS Act was not satisfied. Although initially accepting that a mobility scooter fell within the description of the support described in item 28(b) of cl 1 of Sch 1 to the 2024 Transitional Rules, the Agency came to contend that item 28 only applied if the provision of a mobility scooter was to support or replace a participant’s capacity to move indoors or outdoors and to transfer from one place to another. It was contended that Sch 1 is subject to Sch 2, and item 6(b) of cl 1 of Sch 2 excluded “travel and transport”, being “vehicles, including motor vehicles, motorbikes, watercraft, all-terrain vehicles, standard bikes and scooters, and other recreational vehicles”. The Agency contended that a mobility scooter was a standard scooter because it was not modified or adapted to address Mr Eastham’s visual impairments”. It was “simply, a transport substitution”.

41    The Agency referred to the following statements in the Explanatory Statement to the 2024 Transitional Rules:

Section 4 – Definitions

…

standard item for a person means an item that is not modified or adapted to address the person’s functional impairments.

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.

…

Schedule 1 – Support [sic] that are NDIS supports unless otherwise provided

…

Assistance with travel or transport arrangements

These are supports that provide transport assistance to participants that cannot travel or use public transport independently.

A participant will generally be able to access funding through the NDIS for transport assistance if the participant cannot use public transport without substantial difficulty due to their disability.

…

These supports are available to participants or prospective participants generally who need the support as a result of their disability.

…

Schedule 2 – Supports that generally are not NDIS supports

…

•    Travel and transport: this includes cruises, holiday packages, holiday accommodation, standard vehicles, petrol and personal mobility devices (which are different from the mobility devices required by a participant as a result of their disability).

42    The Agency contended that whether a mobility scooter fell within the inclusive category in item 28 of cl 1 of Sch 1, or the exclusion in item 6 of cl 1 of Sch 2, was “informed by the connection that [the scooter] has with the person’s disability”. The determinative factor was said to be whether the mobility scooter is being sought in respect of a disability which satisfies s 24 or s 25 of the NDIS Act, or some other ancillary impairment which does not meet those requirements.

Tribunal’s reasoning and conclusions

43    The Tribunal recognised that in order to conclude that the mobility scooter is a “reasonable and necessary support” it needed to be satisfied that “all of the seven mandatory criteria in s 34(1) of the NDIS Act are met and that the exclusion under Rule 5.1(a)” of the 2013 Supports Rules does not apply.

44    The Tribunal recorded that the following were in contest at the hearing before it:

(a)    the criteria under s 34(1)(aa), (f), (c), (d) and (e) of the NDIS Act; and

(b)    whether the exclusion under r 5.1(a) of the 2013 Supports Rules applied.

45    The Tribunal concluded that the exclusion under r 5.1(a) of the 2013 Supports Rules did not apply in respect of the provision of funding to Mr Eastham for a mobility scooter. The Tribunal was satisfied that Mr Eastham’s use of the mobility scooter would not pose a risk of harm to him or to others in the community. This conclusion is not challenged on appeal.

46    In relation to the criterion in s 34(1)(aa) of the NDIS Act, the Tribunal rejected the Agency’s contention that the mobility scooter was not necessary in that Mr Eastham could travel by foot and then by the local bus to town. The Tribunal was satisfied from the evidence before it that Mr Eastham’s ability to travel into town and back again on foot for part of the way and by local bus for the balance of the journey was significantly impaired. The Tribunal accepted Mr Eastham’s evidence about why he would find it difficult to travel by foot to and from his house and the local bus stop and that he is unable to carry any weighty items, such as groceries, when doing so. This conclusion is not seriously challenged on appeal.

47     The Tribunal then considered whether Mr Eastham’s need arose from “an impairment in relation to which the participant meets the [s 24] disability requirements”. This issue is a central part of the appeal.

48    The Tribunal found that there were substantial limitations on the availability of the local bus service which resulted in Mr Eastham being unable to make trips during evenings or the nights, on public holidays and over weekends.

49    The Tribunal considered that it was permitted to take this substantial restriction into account by reason of the terms of para (b) of the notation relating to s 34(1)(aa) (Note (b)) as it is “an environmental factor” within the meaning of that para. The Tribunal considered that it was sufficient to satisfy s 34(1)(aa) if the Tribunal is satisfied that “the necessity of this support arises from an impairment in relation to which [Mr Eastham] meets s 24 or s 25, even if it also arises due to an impairment which does not meet those requirements”.

50    The Tribunal reasoned as follows:

(1)    It did not consider that Mr Eastham was required to establish that the support is necessary to meet the needs of one type of impairment over another. It was possible that a support may be necessary to address the needs of a “combination of different types of impairments” (T [91]).

(2)    It considered that in order to satisfy s 34(1)(aa) of the NDIS Act, Mr Eastham was not required to demonstrate that all his impairments satisfied s 24 or s 25 of the NDIS Act. The Tribunal considered that it was sufficient, to satisfy s 34(1)(aa), if a support is necessary to address a particular need arising from a combination of more than one impairment, provided that one of those impairments is an impairment that meets the requirements of s 24 or s 25 (even if the other impairments do not) (T [92], [96]).

51    The Tribunal found that:

(1)    The mobility scooter was necessary to meet Mr Eastham’s needs arising from a combination of his vision impairment and physical and sensory impairments.

(2)    Mr Eastham’s need for a mobility scooter arose from his vision impairment because it was his vision impairment which prevented him from holding a driver’s licence and from driving a car to town and home again.

(3)    Mr Eastham’s vision impairment satisfied s 24 of the NDIS Act (as the Agency agreed).

(4)    The mobility scooter was necessary to address Mr Eastham’s needs which also arose from his other physical impairments which made it substantially difficult for Mr Eastham to walk to the bus stop to make his frequent journeys into town or to walk the entire distance into town when the local bus service is not operating.

(5)    There was evidence before it that might lead to a conclusion that Mr Eastham’s physical impairments (aside from his vision and hearing impairments) may not satisfy s 24 or s 25 of the NDIS Act.

52    The Tribunal recorded that:

There was no dispute between the parties that Mr Eastham’s visual impairments prevent him from obtaining a drivers’ licence to be able to drive as a means of transportation.

53    Even if the Tribunal were to find that Mr Eastham’s physical impairments (aside from his vision and hearing impairments) did not satisfy either s 24 or s 25 of the NDIS Act, the Tribunal accepted that Mr Eastham was unable to drive into town or to the bus stop because he was prevented from obtaining a driver’s licence by reason of his vision impairments and those vision impairments did satisfy s 24 of the NDIS Act. The Tribunal concluded that Note (b) in respect of s 34(1)(aa) applied and it was open to the Tribunal to take into account “environmental factors” such as the distance between Mr Eastham’s home and the bus stop. The Tribunal was satisfied that that distance would result in Mr Eastham experiencing substantial difficulty if he were to regularly traverse that distance on foot “due to his [non-s 24] physical and sensory impairments” and that “he is otherwise unable to traverse that distance by car due to his vision-related impairments which prevent him from obtaining a drivers’ licence”.

54    The Tribunal concluded that the criterion in s 34(1)(aa), interpreted in light of Note (b), was met.

55    The Tribunal then reasoned through each of the remaining criteria in s 34(1) of the NDIS Act, with most of this analysis directed to s 34(1)(f) which requires the support to be ‘an NDIS support’ for the participant.

56    The Tribunal was satisfied that the mobility scooter was an NDIS support for the purposes of s 34(1)(f). The Tribunal referred to the following extract from the Explanatory Statement to the 2024 Transitional Rules, from the heading ‘Schedule 2 – Supports that generally are not NDIS supports’ (emphasis in original):

Schedule 2 is made for the purposes of subsection 10(4) of the NDIS Act and declares supports that are not NDIS supports.

Schedule 2 includes a table that sets out 24 categories of supports. Each of these categories is set out in Column 1. Column 2 provides an exhaustive list of the supports that are included in that category and are therefore declared not to be NDIS supports.

This schedule reflects existing arrangements as outlined in the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules) and intergovernmental agreements such as the applied principles and tables of support and the Disability Reform Council’s Communique dated 28 July 2019.

There are universal obligations for all governments to provide inclusive and accessible services for people with disability. The NDIS and other service systems retain the general principle of working together at the local level to plan and coordinate streamlined care for people requiring both disability supports and mainstream services, recognising both services may be required in conjunction with the need for smooth transitions, coordination and collaboration across service systems.

It is important to note that just because something is excluded from the list of NDIS supports does not confer an obligation on other service systems to provide it.

The lists in schedule 2 declare that the NDIS will not fund a number of ‘standard’ items. That is, the NDIS will not fund items that any person would buy for themselves, but may fund items that are specifically required or modified as a result of a person’s disability.

While the instruments in the list are exhaustive, the below provides a more general outline and explanation of the supports that are not NDIS supports and does not enumerate all of the supports that are captured.

57    The Tribunal construed the Schs to the 2024 Transitional Rules as follows:

(1)    The Tribunal considered that the definition of “standard item” (provided for in s 4 of those rules) applied only where an item in cl 1 of Sch 2 is expressly qualified by the word “standard” (T [118]).

(2)    The Tribunal rejected the contention that whether a mobility scooter falls within item 28 of cl 1 of Sch 1 or is excluded by item 6 of cl 1 of Sch 2 is determined by whether the mobility scooter is being sought in respect of a “disability” which satisfies s 24 or s 25 of the NDIS Act, or some other impairment which does not meet those requirements (T [117]). The Tribunal considered that such an approach “conflate[s], unnecessarily” the assessment which is required to be made under s 34(1)(aa) and the separate task of determining whether a support falls within the description of items in Sch 2 to the 2024 Transitional Rules (T [119]).

(3)    The Tribunal considered that the mobility scooter sought by Mr Eastham “squarely falls within the definition of a ‘motorised mobility device’ as included as a support in item 28 of Sch 1” (T [120]).

(4)    The Tribunal considered that the mobility scooter did not fall within Sch 2 because the mobility scooter is not a type of support described in item 6(b) or item 6(f) of cl 1 of Sch 2. It considered that the reference in item 6(b) to a “standard scooter” is a reference to an unmotorised off the shelf scooter comprising of a small platform upon which the person being transported is required to stand up and use their legs to propel the scooter forward. It considered the reference in item 6(f) to an “e-scooter, electric bikes and skateboards” are to items quite different from a mobility scooter which is a type of motorised mobility device (T [120]).

58    The Tribunal then turned to consider whether the support would be more appropriately funded under another general service system. The Tribunal considered that two community bus services identified by the Agency (distinct from the local public bus service discussed earlier) had only limited availability. The Tribunal was not satisfied that there was another general service system, such as these community bus services identified by the Agency, which was more appropriate to provide the transport support Mr Eastham required. The Tribunal’s application of this criterion is not challenged on appeal.

59    The Tribunal was satisfied that the criterion in s 34(1)(c) was met because it accepted Mr Eastham’s evidence that if he were provided with the mobility scooter he would not require any increase to his recurring transport allowance and would not need a support worker to transport him places or carry his groceries. The Tribunal was satisfied that the cost of the mobility scooter was reasonable relative to the benefits achieved and cost of alternative support. The Tribunal considered that the local bus service and two community bus services, while likely to be less expensive, were substantially limited. Section 34(1)(c) is not raised on appeal.

60    The Tribunal was satisfied that the mobility scooter is likely to be effective and beneficial for Mr Eastham having regard to good practice by providing him with an independent means by which he may, at times of his choosing, travel into town, as well as allowing him to return home immediately should he start to feel a migraine developing. It found that the mobility scooter will optimise his independence. The Tribunal was satisfied that s 34(1)(d) was met. Section 34(1)(d) is not raised on appeal.

61    The Tribunal was satisfied that the mobility scooter would assist Mr Eastham to pursue his stated NDIS goals and that the criteria in s 34(1)(a) was met. Section 34(1)(a) is not raised on appeal.

62    The Tribunal was satisfied that the mobility scooter would assist Mr Eastham to undertake activities so as to facilitate his social and economic participation, and that the criteria in s 34(1)(b) was thus met. Section 34(1)(b) is not raised on appeal.

63    The Tribunal considered it was not reasonable to expect that Mr Eastham’s family members and friends should provide ongoing and regular transportation services to Mr Eastham. The Tribunal considered the criterion in s 34(1)(e) was met. Section 34(1)(e) is not raised on appeal.

64    The Tribunal considered that Mr Eastham’s recurring transport allowance remained an NDIS support under the 2024 Transitional Rules because the allowance fell within either paras (a) or (d) of item 6 of cl 1 of Sch 1. It therefore considered that the allowance should be replicated at its existing level in Mr Eastham’s new statement of participant supports alongside the funding for the mobility scooter, recognising that there will be some journeys for which the mobility scooter cannot be used and Mr Eastham might require alternative private transport.

Grounds of appeal

65    The Agency relies upon three grounds of appeal, one of which is directed at the Tribunal’s approach to s 34(1)(aa) of the NDIS Act and two of which are directed at its approach to the 2024 Transitional Rules.

66    The first ground of appeal as set out in the notice of appeal is in the following terms:

The Tribunal erred in determining that the mobility scooter was a support necessary to address the needs of Mr Eastham arising from an impairment in relation to which Mr Eastham met the disability requirements under s 24 of the National Disability Insurance Scheme Act 2013 (the NDIS Act), in circumstances where the uncontradicted evidence was that Mr Eastham’s mobility-related needs arose from impairments that did not meet the s 24 disability requirement[s] (there being no suggestion that Mr Eastham’s mobility-related needs arose from impairments that met the s 25 early intervention requirements)– because:

(a)    the only impairments that met the s 24 disability requirements were Mr Eastham’s vision and hearing impairments; and

(b)    Mr Eastham’s mobility-related needs did not arise from those impairments but arose from his physical and sensory impairments, which did not satisfy the s 24 disability requirement[s].

67    As drafted, the first ground of appeal was difficult to construe and appeared to confuse errors of fact with errors of law. The precise error of law contended for by this ground was explained in written submissions as having three components:

(1)    An error of law in making a finding of fact which was contrary to evidence or which was illogical or irrational (and therefore legally unreasonable).

(a)    The finding the Tribunal is said to have made, that Mr Eastham’s ‘mobility-related needs’ arose from his vision impairment, was said to be contrary to the evidence before the Tribunal that Mr Eastham did not require a “vision related mobility aid” and that Mr Eastham’s mobility “should be relatively unaffected” by his vision impairment. It was also said to be contrary to Mr Eastham’s own evidence that his difficulties with mobility arose from his physical impairments.

(b)    The Tribunal expressed caution about the conclusion expressed by the ophthalmic surgeon that Mr Eastham’s mobility “should be relatively unaffected” by his vision impairment because the ophthalmic surgeon was not called as a witness. At the same time, the Tribunal was said to be willing to conclude that Mr Eastham could safely operate a mobility scooter based on material from persons not called as witnesses. In so doing, the Tribunal was said to have reasoned in a manner that was illogical.

(4)    An error of law in the Tribunal at T [96] misconstruing s 34(1)(aa) by interpreting Note (b) as conveying:

… that the criterion under s 34(1)(aa) will still be met, even if the support is necessary to address needs of [the participant] arising from an impairment which does not satisfy the requirements [of] s 24 or s 25, provided that it can be shown that the support is necessary to address needs of [the participant] arising from an impairment which does satisfy the requirements under either s 24 or s 25.

Rather, the effect of Note (b) was said to be that the impact of other impairments that do not meet the s 24 requirements could affect a support need, but the need must arise from an impairment that does meet the s 24 (or s 25) requirements. The Agency contends that s 34(1)(aa) does not permit any “independent consideration” of needs that arise from an impairment that does not satisfy the requirements of s 24 or s 25.

(5)    An error of law in applying s 34(1)(aa) to the facts. It was said that the Tribunal applied s 34(1)(aa) in a circular fashion by identifying Mr Eastham as having a need for a mobility scooter, which need could be addressed by providing a mobility scooter. It was contended that a mobility scooter may be funded if it is necessary to address “mobility-related needs” arising from a participant’s vision impairment and that on the evidence before the Tribunal, Mr Eastham’s mobility was not reduced by his vision impairments.

68    Although Mr Eastham was not able to hold a driver’s licence, that inability was said by the Agency to arise from the legislation governing road safety. This legislation was said to have broken any nexus between an inability to drive and Mr Eastham’s vision impairment.

69    The second and third grounds of appeal are expressed in the following terms:

2.    The Tribunal erred in concluding that the mobility scooter was an NDIS support within s 34(1)(f) of the NDIS Act because the uncontradicted evidence was that the mobility scooter:

(a)    was not a “motorised mobility device” within item 28(b) of Schedule 1 to the [2024] Transitional Rules;

(b)    was instead a “personal mobility device” within item 6(f) of Schedule 2 to the [2024] Transitional Rules, the effect of which was that the mobility scooter was not an NDIS support.

3.    Alternatively, the Tribunal erred by failing to carry out its review function so as to determine whether the mobility scooter did not fall within the class of NDIS supports identified in item 28(b) of Schedule 1 to the [2024] Transitional Rules or was a “personal mobility device” within item 6(f) of Schedule 2 to the [2024 Transitional] Rules.

70    The Agency contends that the Tribunal erred in its construction of Sch 1 and Sch 2 to the 2024 Transitional Rules. The Agency contends that the description in column 2 of item 28 of cl 1 of Sch 1 should be construed as qualifying an item as a personal mobility equipment that has a particular purpose. The Agency contends that item 28 of cl 1 of Sch 1 had a “qualification” that concerned “supporting or replacing a participant’s capacity” and when informed by s 24 of the NDIS Act, the participant’s capacity had to be a capacity that was diminished by reason of the impairment that meets the s 24 disability requirements (s 24 impairment).

71    The Agency contends that the Tribunal erred in failing to construe Sch 1 by reference to the requirements in s 24 or s 25 of the NDIS Act and in regarding the words in Schs 1 and 2 as unambiguous. The Agency referred to the Explanatory Statement to the 2024 Transitional Rules, which in relation to item 28 of cl 1 of Sch 1 states:

This is the provision of personal mobility equipment that supports or replaces a participant’s capacity to move indoors and outdoors and to transfer from one place to another. These supports help participants to do things that they otherwise would not be able to do because of their disability. This includes items that:

•    allow participants to do tasks independently

•    mean participants need less help from others

•    help participants do things more safely or easily

•    help participants keep doing the things they need to do

•    are personalised for participants.

These supports are available to participants generally who need the support as a result of their disability.

72    The Agency contends that item 28 of cl 1 of Sch 1 in referring to a participant’s capacity must be taken to refer to the s 24 disability requirements and in particular to s 24(1)(c)(iv) (“substantially reduced functional capacity to undertake … mobility”). Hence, the Agency submits, a motorised mobility device only falls within item 28 if it is to be used as a support for a s 24 impairment that has been identified as a mobility impairment.

73    The Agency contends that the Tribunal erred in its construction of item 6 of cl 1 of Sch 2 because it failed to consider whether the mobility scooter was a “personal mobility device”. In the Agency’s submission, a “personal mobility device” in item 6 is not limited to an “e-scooter, electric bike or skateboard” and so could include a mobility scooter.

Consideration

Ground 1

74    By its terms, s 34(1)(aa) requires that the CEO (or Tribunal on review) be satisfied, in relation to the funding or provision of a support, that:

(a)    the support is necessary to address needs of the participant;

(b)    those needs must arise from an impairment; and

(c)    the impairment giving rise to the needs must be one in relation to which the participant meets the disability requirements in s 24 or the early intervention requirements in s 25.

75    The disability requirements in s 24 are expressed by reference to different concepts. The subject of s 24 is not a support but a person. Relevantly, the criteria for a person to meet the disability requirements include criteria which are directed at the type of impairment that a participant has and other criteria which are directed to the person or the disability which the person has. The cumulative criteria in s 24 may be dissected as follows:

(1)    The person must have a disability (an undefined term).

(2)    The disability must be attributable to one or more particular kinds of impairments.

(3)    The particular kinds of impairments are: intellectual, cognitive, neurological, sensory or physical, or impairments to which a psychosocial disability is attributable.

(4)    The impairments must be or be likely to be permanent.

(5)    The impairments must result in substantially reduced functional capacity of the person to undertake one or more of the following activities: communication, social interaction, learning, mobility, self-care and self-management.

(6)    The impairments must affect the person’s capacity for social or economic participation.

(7)    The person must be likely to require NDIS supports (as defined) under the NDIS for the person’s lifetime.

76    Mr Eastham’s participant plan was an old framework plan. As required by s 33 of the NDIS Act, Mr Eastham’s plan consisted of a statement of his goals and aspirations as well as a statement of participant supports. As Mortimer J said in McGarrigle v National Disability Insurance Agency and Another [2017] FCA 308; (2017) 252 FCR 121 (at [87]), the statement of participant supports is not to be divorced from the statement of goals and aspirations. Her Honour went on to say:

The scheme intends that the supports provided or funded will assist the participant to achieve her or his goals and aspirations: the two mandatory aspects of the plan set out in s 33 are intended to work together. So much is clear from the principles set out in s 31, and from provisions such as s 4(11).

77    It follows that the word “supports” is to be given a broad construction in this context: McGarrigle at [88]. The word “supports” in this context is a practical description of the means by which a person who satisfies s 24 is assisted: McGarrigle at [88].

78    Section 24 draws a distinction between disability, impairment, and substantially reduced functional capacity to undertake one or more of the identified activities.

79    Section 34(1)(aa) by its terms is not concerned with a support that addresses a disability (undefined as that term is) which a participant has, but with a support that addresses a need which arises from the impairment the participant has. By the statutory text, the supports to which s 34(1)(aa) is directed are those that address needs arising from an impairment which satisfies s 24 or s 25.

80    In the context of s 34(1)(aa), the term “arising from” is a description of the requisite relationship between the need for the support and the participant’s impairment. Construed in context, the requisite relationship is a causal connection between the s 24 impairment and the need.

81    There is a danger in being too prescriptive as to how that causal connection is to be determined, recognising that logic and commonsense must play a part (see in relation to causation in the context of negligence March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 at 518–519 (Mason CJ)). Although the Court was directed to statements by the High Court that the phrase “arising from” may require a connection that is less proximate than the phrase “caused by”, those authorities were considering a context in which the term used was “caused by or arising out of” and not the phrase “arising from” appearing in isolation: see eg State Government Insurance Commission v Stevens Bros Pty Ltd [1984] HCA 32; (1984) 154 CLR 552 at 557 (Dawson J). A “but for” test of causation in this context may be a useful starting point but its application must be tempered by logic and commonsense.

82    Based on the description in s 24 of impairments by reason of which a participant meets the disability requirements, the connection required by s 34(1)(aa) between the need for the support and the impairment may arise because the support directly addresses the reduced functional capacity of the person to undertake one of the activities identified in s 24(1)(c) or because the support increases the person’s capacity for social or economic participation where that capacity is affected by the impairment (s 24(1)(d)), or both. The criterion in s 34(1)(aa) is separate and distinct from the criterion in s 34(1)(b). Section 34(1)(b) requires the support assist the participant to undertake activities. Those activities must facilitate the participant’s social and economic participation: National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415 at [214]–[218] (Flick, Mortimer and Banks-Smith JJ). By its terms s 34(1)(b) does not require a direct connection between the activities, the undertaking of which will be assisted by the support, and the participant’s impairment.

83    Properly construed, s 34(1)(aa) does not require that the s 24 impairment be the sole cause for the need for a support. It is sufficient for the section that the s 24 impairment be a contributory cause of the need. So much is apparent from Note (b) to s 34(1)(aa) which recognises that a need arising from a s 24 impairment may be “affected by” other factors, including the impact of another impairment. A need for a support will invariably be the product of a confluence of factors. The Further Revised Supplementary Explanatory Memorandum to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024 (Cth) recognises that “the impact of an impairment may be compounded or changed by other factors, including impairments that do not necessarily meet the disability or early intervention criteria” (emphasis added) and proceeds to give examples of unique support needs that arise from combinations of factors. One of the examples given is:

Ty met the disability requirements in relation to a physical impairment which causes substantially reduced function in the mobility and self-care domains. In Ty’s previous NDIS plans, he received NDIS supports such as vehicle modifications, home modifications, and assistive technology.

Ty transitions to the new planning framework and has a needs assessment. In his needs assessment, Ty reports that he has recently began [sic] experiencing vision loss, which also affects his functioning in the mobility and self-care domains.

The needs assessor uses the assessment tool to assess Ty’s holistic disability support needs across all functional and need domains, taking into consideration environmental factors and other factors which interact with Ty’s physical impairment.

The assessment report outlines the needs which arise from Ty’s physical impairment, reflecting the impact of environment[al] factors and other factors such as vision loss impairments which interact with Ty’s physical impairment. This information is used to create a reasonable and necessary budget that reflects Ty’s support needs.

Ty may also receive referrals to other services to support his vision loss.

84    It follows that a support will satisfy s 34(1)(aa) if it addresses a need that is causally related to a s 24 impairment notwithstanding that that need is also a product of another impairment (whether that be an impairment that satisfies s 24 or s 25, or not) or another factor.

85    In the present case, it was not disputed that Mr Eastham’s vision impairment satisfied s 24 of the NDIS Act, but it was not made clear to the Court which aspect of s 24(1)(c) was satisfied. That is, which of the functional capacities in s 24(1)(c) of the NDIS Act was understood to be substantially reduced by Mr Eastham’s vision impairment.

86    On appeal, the Agency does not seriously dispute the Tribunal’s finding that Mr Eastham had a need for transport assistance by way of support arising from his vision impairment. It was the nexus between the support in the form of the mobility scooter and Mr Eastham’s s 24 vision impairment that is the gravamen of the Agency’s appeal. The premise of the Agency’s contentions in relation to ground 1 is that Mr Eastham did not require a mobility scooter by reason of his vision impairment but by reason of his other impairments which did not satisfy s 24.

87    To the extent that the Agency sought to submit that s 34(1)(aa) requires that Mr Eastham’s s 24 impairment be the sole or most proximate cause of the need for the particular support, that contention is not accepted. The NDIS Act must be interpreted in a way that accords with commonsense, having regard to the subject matter of the Act. The reasoning of the Agency is apt to produce outcomes that run counter to the evident intent of Note (b) and commonsense. For example, applying the Agency’s logic, where a participant with a s 24 vision impairment who was prohibited from driving as a result resided in an area that was not serviced by public transport, but was physically capable of using public transport if the area had been so serviced, that participant would not be entitled to transport assistance because the need for transport assistance would not arise from the s 24 impairment but from the participant’s place of residence. Applying the Agency’s logic would result in a conclusion that transport assistance for that participant would be denied.

88    Contrary to the Agency’s submission, the Tribunal did not consider Mr Eastham’s needs for support arising from non-s 24 impairments ‘independent of’ needs arising from his vision impairment. The Tribunal found that Mr Eastham had a need for support in the form of a mobility scooter because Mr Eastham needed assistance in transporting himself to and from town. The Tribunal found that that need arose from Mr Eastham’s vision impairment because Mr Eastham’s vision impairment precluded him from driving a car. But for Mr Eastham’s vision impairment, Mr Eastham would not need a mobility scooter. But for his vision impairment, Mr Eastham would have no need for transport support because he would have been able to drive himself to town (or to the bus stop).

89    The Tribunal did not err in its construction of s 34(1)(aa) or in its construction of Note (b). The Tribunal understood that s 34(1)(aa) required the identification of a causal connection between Mr Eastham’s need for a mobility scooter and his s 24 impairment. The Tribunal was correct in construing Note (b) as enabling a conclusion that a need might arise from a s 24 impairment even if the need also arises by reason of another impairment, and it was entitled to take into account the combined effect of a number of impairments in assessing whether a need arose from a s 24 impairment provided that the s 24 impairment was a contributory cause of the need.

90    Reading the Tribunal’s reasons as a whole, it is clear that the Tribunal was satisfied that Mr Eastham had a need for a mode of transport to make the journey into town and home again.

91    The Tribunal was satisfied that the need for a mode of transport arose from Mr Eastham’s vision impairment, because it was his vision impairment that meant he could not hold a driver’s licence to transport himself independently: T [97]. The Tribunal found that the local bus service was not a reasonable mode of transport to address Mr Eastham’s need because of the lack of service on a weekend and public holidays, and because Mr Eastham’s other impairments made it unreasonably difficult for him to walk to the bus stop. As a result, Mr Eastham required a support to address his need for a mode of transport arising from his vision impairment, being a s 24 impairment. There was a logical basis from which it may be concluded that there was a causal connection between Mr Eastham’s need for a mobility scooter and his s 24 impairment. Whether Mr Eastham may have had a different need for support arising from his vision impairment if he had not also suffered other impairments or if he lived closer to a bus stop which was serviced by a local bus which ran every day is not sufficient to render the Tribunal’s finding illogical or unreasonable.

92    The Agency’s contention that any causal connection between Mr Eastham’s vision impairment and needs referable to his inability to hold a driver’s licence was “fractured” by the Victorian road traffic legislation is not accepted. The submission appeared to be that Mr Eastham was precluded from holding a driver’s licence because the road traffic legislation prohibited persons with certain vision impairments from holding a driver’s licence and so it could not be said that the cause of Mr Eastham’s need for a mode of transport arose from his vision impairment per se. As explained above, s 34(1)(aa) does not require that the s 24 impairment be the sole cause of the need.

93    A written submission by the Agency to the effect that an inability to drive could not establish a disability support need because an inability to drive was a single task and not a bundle of tasks was not repeated in oral submissions. It is not an issue raised by the text of s 34(1)(aa). The submission sought to draw from an authority concerning the issue of whether an applicant satisfied the disability requirement in s 24. Section 34(1)(aa) is engaged only if a participant has an impairment that has satisfied either s 24 or s 25. There is no basis in the NDIS Act for concluding that a support cannot address a need that is referable only to a particular task in circumstances where the participant’s impairment giving rise to the need satisfies s 24.

94    The Agency’s contention to the effect that a support in the form of a mobility scooter may only satisfy s 34(1)(aa) if that support addresses a physical mobility impairment that satisfied s 24(1) of the NDIS Act does not appear from the language of s 34(1)(aa). The support must address a need that arises from a s 24 impairment; it is not necessary for the support to address the impairment itself. The nexus between the support and the need required by the section is that the support must address the need. The Agency places reliance on the expert evidence before the Tribunal of an orientation and mobility specialist from Guide Dogs Victoria, that Mr Eastham “does not require a vision related mobility aid”, and the evidence of the ophthalmic surgeon that his “[m]obility should be relatively unaffected” by his vision impairment. Evidence that Mr Eastham’s vision impairment did not give rise to a substantially reduced capacity for mobility does not answer the statutory question in s 34(1)(aa) as to whether a mobility scooter was a reasonable and necessary support to address a need of Mr Eastham’s which did arise from his vision impairment, being his need for a mode of transport.

95    There was no illogicality in the Tribunal expressing caution about the meaning of the statement in the ophthalmic surgeon’s report about the reduction in Mr Eastham’s mobility whilst, at the same time, accepting the conclusion in that same report that Mr Eastham could safely operate a mobility scooter.

96    The report of the ophthalmic surgeon stated that:

At this stage I believe that [Mr Eastham] has sufficient vision to operate a mobility scooter, and I am not expecting a deterioration of his vision in the near to medium term. I would not expect him to have any trouble identifying hazards or obstacles, and I would not expect him to have problems with his vision in that he would not see any pedestrians or other uses [sic] of the footpath.

With regards to specific questions about reduction in [Mr Eastham]’s capacity to undertake activities I do not think that there is a significant reduction in his communication or social interaction. Learning would be difficult with limited reading ability. Mobility should be relatively unaffected, and self-care, and self management would be limited with regards to limitation of reading but other then [sic] that [Mr Eastham] should be able to undertake self-care activities without problems.

I do not have any details of any trials of mobility scooters that have been undertaken. I do not think that there is a significant safety concern with [Mr Eastham]’s vision, and a mobility scooter. I do think that the use of a mobility scooter would increase [Mr Eastham]’s independence, and his capacity to function without extra assistance. I do not have any details about how the mobility scooter would affect the other supports that [Mr Eastham] currently receives.

97    The Tribunal made the following comment in its reasons (at T [78]):

[The ophthalmic surgeon] was not called as a witness in this proceeding and so there was no opportunity to question him about the context within which he provided this opinion. The Tribunal is cautious about drawing any conclusions from it in the context of this proceeding.

98    In making those comments the Tribunal was doing no more than refusing to read too much into part of a report when the context had not been explored. Taken on its face, the statement from the ophthalmic surgeon would lead to a conclusion that Mr Eastham would not meet the qualifications to be an NDIS participant at all, in circumstances in which that was not an issue for the Tribunal to determine. The questions asked of the ophthalmic surgeon were not before the Court and not recorded in the Tribunal’s reasons. Because the ophthalmic surgeon was not called as a witness, his understanding of the questions he was asked could not be tested.

99    In concluding that Mr Eastham could safely operate a mobility scooter, the Tribunal did not rely exclusively on the report from the ophthalmic surgeon but also considered the conclusions concerning Mr Eastham’s ability to operate a mobility scooter in the report from the orientation and mobility specialist as well as Mr Eastham’s own evidence. It was not illogical for the Tribunal to consider the conclusion expressed by the orientation and mobility specialist even though that specialist was not called as a witness. Reading the reasons as a whole, the Tribunal was satisfied that it understood the content of that specialist’s opinion, and the context in which it was given, from the face of the specialist’s report.

100    Adapting the comments of the Full Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [34] (Allsop CJ, Besanko and O’Callaghan JJ), for an erroneous finding of fact to amount to an error of law it must either lack any evidentiary foundation or be so lacking a rational or logical foundation that no rational or logical finder of fact could reach that finding. In this case, there was an evidentiary foundation for the findings of fact made by the Tribunal and its approach to fact finding in this case was not illogical or otherwise legally unreasonable.

101    Ground 1 of the Agency’s appeal is not made out.

Grounds 2 and 3

102    It is convenient to address these grounds together as both concern the construction of the schedules to the 2024 Transitional Rules.

103    Section 34(1)(f) of the NDIS Act requires that a support be an NDIS support. By s 10 of the NDIS Act, what is an NDIS support is determined by NDIS Rules. The relevant rules in this case are the 2024 Transitional Rules.

104    The effects of the 2024 Transitional Rules are that:

(1)    Unless excluded by Sch 2, to be an NDIS support for a participant the support must be covered by column 2 of an item in the table in cl 1 of Sch 1 in respect of participants generally or a class of participants to which that participant belongs, as identified in column 3 of the item: s 5(1) of the 2024 Transitional Rules. It is noteworthy that column 1, which is entitled “Category”, is not referred to in s 5 of the 2024 Transitional Rules.

(2)    If a support is covered by column 2 of an item in the table in cl 1 of Sch 2, that support is not an NDIS support for any participant: s 5(2) of the 2024 Transitional Rules. That is, if a support falls within an item in Sch 2 it cannot be an NDIS support at all.

Schedule 1

105    Schedule 1 of the 2024 Transitional Rules identifies those supports that are NDIS supports for participants, subject to s 5(2) of the 2024 Transitional Rules and s 10(4) and (9) of the NDIS Act. (Section 10(9) of the NDIS Act is not relevant to this case.)

106    Column 2 of item 28 of cl 1 of Sch 1 covers supports that consist of “the provision of personal mobility equipment that supports or replaces a participant’s capacity to move indoors and outdoors and to transfer from one place to another”. The description in column 2 is a description of the attributes of the “supports” covered by the particular item. When referring to personal mobility equipment that supports or replaces capacity to transfer from one place to another, the item is referring to the effect or design of the equipment. A motorised mobility device is listed as an example of personal mobility equipment that is designed for and has the effect of supporting or replacing a participant’s capacity to move indoors and outdoors and to transfer from one place to another.

107    The description in column 2 of item 28 is not referring to a causal nexus between the participant’s s 24 impairment and their need for support or replacement of a capacity to transfer from one place to another. The causal nexus between the need for the support and a participant’s impairment is addressed by s 34(1)(aa) of the NDIS Act. The table in Sch 1 does not impose a further causal nexus requirement.

108    The fact that Mr Eastham’s capacity to move or transfer from one place to another was diminished by reason of a non-s 24 impairment did not mean that the mobility scooter ceased to be a motorised mobility device as identified in item 28 of cl 1 of Sch 1.

109    As noted above, the NDIS Act does not define “disability”. As mentioned above, the Agency relies on a sentence in the Explanatory Statement to the 2024 Transitional Rules referring to personal mobility equipment as supports that “help participants to do things that they otherwise would not be able to do because of their disability” or as being “available to participants generally who need the support as a result of their disability”. This does not alter the construction of Sch 1 just outlined, as resort to extrinsic material cannot displace the meaning of the statutory text or override the language used in the statute: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the cases there cited; Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

110    The Agency’s contention that “capacity” in item 28 of cl 1 of Sch 1 must be taken to be a reference to the capacity referred to in s 24(1)(c)(ii) and that as a consequence, the item applies only if the participant’s s 24 impairment is an impairment that results in a substantial reduction in mobility is not accepted. The Tribunal’s reasoning in relation to item 28 of cl 1 of Sch 1 is summarised above at [57(2) and (3)] above. The Tribunal did not err in its construction of item 28 of cl 1 of Sch 1 and did not misdirect itself. Nor did it fail to carry out its statutory task.

Schedule 2

111    Item 6 of cl 1 of Sch 2 is set out above. It provides in column 2 that the following relevantly are not NDIS supports:

(b)    vehicles, including motor vehicles, motorbikes, watercraft, all-terrain vehicles, standard bikes and scooters, and other recreational vehicles;

…

(f)    personal mobility devices, including e-scooters, electric bikes and skateboards;

112    Because the items in Sch 2 cannot be NDIS supports for any participant, the items are described in prescriptive, definitive terms and, unless otherwise expressly provided, the description is of the inherent character of the item rather than how the item is to be used by a particular participant.

113    It is necessary to read Sch 2 in a way that is harmonious with Sch 1. Schedule 1 recognises that a motorised mobility device is capable of being an NDIS support. Because Sch 2 proscribes supports from being NDIS supports for any participant, if a mobility scooter is a personal mobility device, a mobility scooter would be precluded from being an NDIS support for any and all participants. The inclusions of scooters, electric bikes and skateboards are illustrative of the types of personal mobility devices to which the item of “personal mobility devices” is directed. Reading the Tribunal’s reasons as a whole, the Tribunal considered that item 6 of cl 1 of Sch 2 was not intended to cover a motorised mobility device that was within Sch 1. In so doing the Tribunal reached a conclusion that was open to it.

114    The Agency appeared to contend that a mobility scooter would fall within the exclusion provided for in item 6 of cl 1 of Sch 2 of the 2024 Transitional Rules if it were provided as a support in the nature of “Day to Day living costs – travel and transport”, based on the category description in column 1 of the table in cl 1 of Sch 2. As explained above, column 1 is not referred to at all in s 5 of the 2024 Transitional Rules and is not given any specific operative effect by those rules. Its status and purpose appears to be by way of general guidance to assist readers of the schedule by guiding them to where in the schedule they might find a particular support listed in column 2. It is described in the Explanatory Statement to the 2024 Transitional Rules as being provided for “ease of reference”. Column 1 does not qualify column 2. The supports in column 2 of item 6 in cl 1 of Sch 2 are not identified or itemised by reference to a particular participant or class of participant or by reference to how a particular participant is using the device. The fact that a mobility scooter is used to address a need for day-to-day travel does not mean the mobility scooter is a “personal mobility device” within the meaning of item 6(f) of cl 1 of Sch 2.

115    Reading the Tribunal’s reasons as a whole, the Court does not accept that the Tribunal failed to consider whether the mobility scooter was a “personal mobility device” within item 6(f) of cl 1 of Sch 2. Read fairly, the Tribunal’s reasons disclose that it looked at the list of inclusions within item 6 of cl 1 of Sch 2 and concluded that a mobility scooter was of a different character of the type of support to which item 6 was directed and that a mobility scooter was instead a “motorised mobility device” as provided for in Sch 1.

116    Grounds 2 and 3 of the Agency’s notice of appeal are not made out.

Disposition

117    The Applicant’s appeal is dismissed with costs.

Associate:

Dated:    25 February 2026