NDIS AT Series · Part 2 · Legal Analysis · March 2026
The Supports List vs. Eastham: What Actually Gets Funded Now?
Many practitioners know one piece of the puzzle. Far fewer have a clean framework for how the two interact in day-to-day AT decisions. That gap is where avoidable refusals happen — and where stronger documentation makes the difference.
Published 9 March 2026 • NDIS Assistive Technology • Evidence & Reviews
In one sentence
The Supports Lists answer “Is this item even eligible for NDIS funding?”; Eastham answers “How do we prove the disability link for an eligible item?” — and these are different questions, governed by different parts of the law.
Quick answers
- What changed? Eastham v NDIA [2026] FCA clarified the disability-link test (s34(1)(aa)). A qualifying impairment now only needs to contribute to a support need, not cause it solely or dominantly.
- What else changed? The October 2024 NDIS Supports Lists define which items and services can be funded at all — a separate question, at a different layer of the law.
- Key rule: Eastham cannot override a confirmed Supports List exclusion — but it can challenge whether a character-based exclusion was correctly applied in the first place.
- Who needs this? OTs, Support Coordinators, and PBS Practitioners writing AT justifications for participants with complex, multi-condition profiles.
Why this matters right now
Every week, practitioners across Australia are writing AT justifications for items that come back refused. Weighted compression vests. Therapeutic sensory swings. Specialised positioning mattresses. Customised communication tools. Many of these refusals invoke two lines of argument: either the item is not an NDIS support at all, or the participant's disability does not adequately connect to the need for it.
Since October 2024, both of those arguments have changed — but in different ways, at different levels of the law. Practitioners who understand the architecture are the ones reducing avoidable refusals and building review-ready evidence. This article gives you that architecture.
The focus here is on lower-cost AT (often under $1,500 in NDIA practice) — because this is where “everyday item” objections are most commonly raised and where clear characterisation combined with functional evidence matters most.
The two-gate system: why sequence matters
Think of every NDIS AT funding decision as two gates that must be cleared in order. Mixing up which gate a refusal is based on — or trying to answer Gate 2 arguments when the real dispute is at Gate 1 — wastes clinical effort and weakens the record for review.
| GATE 1 — Supports List | GATE 2 — Reasonable & Necessary | |
|---|---|---|
| Law | NDIA Supports Lists / exclusions guidance (Oct 2024) + applicable Rules and Schedules (as in force) | s34(1)(aa) NDIS Act — the disability nexus test |
| Question | Is this item capable of being funded by the NDIS at all? | Does this support address needs arising from the participant's qualifying (s24) impairment? |
| If it fails | Analysis stops. A confirmed categorical exclusion cannot be overridden by clinical evidence. | Support is refused, but evidence can be strengthened and the decision reviewed. |
| Eastham? | Eastham's inherent character reasoning can challenge whether a character-based exclusion was correctly applied — not a confirmed categorical one. | Eastham's contributory cause holding is the primary tool here. This is its jurisdiction. |
The key sequencing rule: Eastham does not help if the item fails Gate 1. Before building any AT justification, identify which gate the NDIA's objection is actually based on — then use the right tool for the right gate.
The Supports List is not one thing — it contains three types of exclusion
This is the distinction that most commentary misses, and it is the most practically important point in this article. The October 2024 Supports Lists contain three structurally different exclusion types. Each requires a completely different response — including whether Eastham is relevant at all.
| Type | How it works | Common examples | How to respond |
|---|---|---|---|
|
TYPE 1 Named Categorical |
Item is specifically named or clearly categorised on the exclusion list. No interpretation required. | Standard gaming consoles, alcohol, sexual services, gambling products | Generally not claimable. If an exception is sought, it requires a separate mechanism (e.g. a replacement-support request) and strong case-specific evidence. Eastham is not the primary tool here. |
|
TYPE 2 Character-Based |
Item is excluded because of how it has been characterised — as an “everyday item”, “general living cost”, or item “ordinarily purchased by the general population”. These are judgment calls, not fixed facts. | Weighted blankets, sensory tools, therapeutic apps, positioning equipment | This is the primary battleground for low-cost AT. Eastham's inherent character analysis can challenge whether the NDIA's characterisation is correct. The label the NDIA applies is not the end of the analysis. |
|
TYPE 3 Conditioned |
Item is excluded unless a specific condition is met — disability-specific modification, clinical prescription, or demonstrated functional purpose. | Tablets as “replacement items”, modified household equipment, clinically prescribed consumables | Demonstrate the condition is satisfied. Eastham's contributory cause reasoning provides the legal basis for showing the disability link that meets the condition. |
Where most low-cost AT disputes actually live
Type 2 character-based exclusions are the most contested zone for everyday AT items — weighted blankets, compression vests, sensory swings, therapeutic software, positioning tools. The NDIA characterises these as household or general items; the Eastham methodology gives practitioners a principled legal basis to challenge that characterisation. This is where clinical documentation skill directly changes outcomes.
What is a “Type 2 Exclusion”?
A characterisation judgment by the NDIA — not a named exclusion. The NDIA labels an item as “everyday” or “general living cost”. This judgment can be challenged using Eastham’s inherent character analysis.
What is “Inherent Character”?
What an item fundamentally is — based on its design purpose, manufacture, and clinical function. Not how a particular participant uses it, and not the label the NDIA applies to it.
What is a “Contributory Cause”?
A genuine causal factor that contributes to a need, even if other factors also contribute. Less demanding than “sole” or “dominant” cause — both rejected in Eastham. The connection must still be real.
Eastham contains two arguments. Most practitioners know only one.
The judgment in Eastham v NDIA [2026] FCA contains two legally distinct holdings. The causation holding (Ground 1) has received nearly all post-decision commentary. The inherent character holding (Grounds 2 and 3) has received almost none — yet for low-cost AT, it may be the more immediately useful of the two.
Ground 1 — Causation test clarified (para 83)
Before Eastham, the NDIA routinely denied AT by arguing that the participant's qualifying NDIS impairment (their “s24 impairment”) had to be the sole or dominant cause of the support need. If a second condition also contributed, the causal link was said to be “broken”.
Justice Hespe rejected this entirely. Section 34(1)(aa) requires only that the qualifying impairment be a genuine contributory cause. Note (b) expressly recognises that a support need “may be affected by a variety of factors, including environmental factors or the impact of another impairment”.
Why this matters for children in particular
- Many children have multi-condition profiles — autism with fine motor issues, sensory processing differences with anxiety, vision impairment with physical mobility challenges.
- Post-Eastham, a secondary condition does not break the disability nexus. The qualifying impairment need only be a genuine contributor.
- Documenting the full clinical picture is now a legal strength, not a liability.
Grounds 2 & 3 — Items described by inherent character (paras 106–115)
The second holding addresses something that arises constantly in low-cost AT practice: the NDIA characterising an item as “everyday” to exclude it.
Mr Eastham's mobility scooter was challenged because it was used for “transport”. The Court held that items are characterised by their inherent design purpose — what the item fundamentally is — not by how a participant uses it.
Items are described by their inherent character rather than by how they are used by a particular participant. This principle provides a framework for challenging character-based exclusions under the Supports Lists.— LowCostAT analysis, March 2026
The practical two-step that follows:
Step 1 — Gate 1 challenge (inherent character):
“The NDIA has applied a character-based exclusion. When the item is correctly characterised by its inherent design purpose, it does not fall within that exclusion. Gate 1 is cleared.”
Step 2 — Gate 2 (Eastham contributory cause):
“The participant's qualifying impairment contributes to the need for this item. Other factors also contribute — but that does not fracture the disability nexus. s34(1)(aa) is satisfied.”
Free practitioner resources
Download these templates to speed up Gate 1 (character) and Gate 2 (disability link) wording — built for OTs, Support Coordinators, PBS Practitioners, and self-managed participants.
Also useful
- Part 1 — Eastham Explained: Read it here
- Primary judgment: CEO of NDIA v Eastham [2026] FCA 147 (AustLII)
- NDIA Operational Guidelines: ourguidelines.ndis.gov.au
- Thriving Kids: health.gov.au/our-work/thriving-kids
General information only — not legal advice. NDIS funding decisions are individual and depend on a participant’s circumstances, goals, and evidence. Verify current rules with primary sources before relying on this article.
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