Bradley and National Disability Insurance Agency - [2023] AATA 1885

Bradley and National Disability Insurance Agency [2023] AATA 1885 (29 June 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2020/8122; 2021/0352
Re:Richard Bradley
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:29 June 2023
Place:Canberra

The Tribunal affirms the decision under review in application 2020/8122, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
The Tribunal dismisses application 2021/0352 pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act1975.
.....................[SGD].......................................
Member W Frost
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – where the Applicant is an accepted participant of the National Disability Insurance Scheme – complex needs participant – where the Applicant requested 107 additional supports – mobility and movement supports – food and eating related supports – psychology and sensory related supports – self-management and related supports – support coordination – where the Applicant requested a plan review that was declined – section 34 considerations – to assist the participant achieve their goals and aspirations – value for money – whether beneficial to the participant – Tribunal not satisfied on the evidence available – first decision under review affirmed – second decision under review dismissed
Legislation
Administrative Appeals Tribunal Act1975 ss 37, 43
National Disability Insurance Scheme Act 2013 ss 3, 4, 9, 14, 21, 24, 25, 28, 29, 30, 32, 33, 34, 35, 48, 209
National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2018 ss 14
National Disability Insurance Scheme (Supports for Participants) Rules 2013 ss 5.1
Cases
Charrington and NDIA [2022] AATA 1160
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Madelaine and National Disability Insurance Agency [2019] AATA 4025
McGarrigle v National Disability Insurance Agency [2017] FCA 308
MMBX and National Disability Insurance Scheme [2022] AATA 13
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
WRMF and National Disability Insurance Agency [2019] AATA 1771
Secondary Materials
My NDIS mobile app (Web Page), < Term Accommodation or Respite (Web Page), <
Support Coordination (Web Page), < align="left">REASONS FOR DECISION
Member W Frost
29 June 2023
INTRODUCTION

The Applicant, Mr Richard Bradley, has been a participant in the National Disability Insurance Scheme (NDIS) since 2020.[1] He has multiple disabilities, including Autism Spectrum Disorder (ASD), and in these proceedings has requested 107 supports be funded by the National Disability Insurance Agency (NDIA).[2]
[1] Exhibit 1, pages 324-356.
[2] See Exhibit 8 and Annexure 1 to these reasons.
Mr Bradley made two applications to the Administrative Appeals Tribunal (Tribunal) for review of decisions made by the NDIA.[3] In 2020, the NDIA approved a statement of participant supports for Mr Bradley under the National Disability Insurance Scheme Act 2013 (NDIS Act).[4] Later that year, Mr Bradley applied to the Tribunal for review of the NDIA’s subsequent decision to vary its initial decision and include some, but not all, of Mr Bradley’s requested supports in his NDIS plan.[5] In 2021, Mr Bradley applied to the Tribunal for review of the NDIA’s decision from earlier that year to not conduct a review of his NDIS plan.[6]
[3] Exhibit 1, pages 1-296 and Exhibit 10, pages 1-15.
[4] Ibid., pages 324-356.
[5] Ibid., pages 297-322.
[6] Exhibit 10, pages 1-15.
ISSUES
The issues in these proceedings are whether:
(a)the supports requested by Mr Bradley to be funded or provided by the NDIA are ‘reasonable and necessary’, pursuant to section 34 of the NDIS Act, for inclusion in the statement of participant supports in his NDIS plan; and
(b)the NDIA should conduct a review of Mr Bradley’s NDIS plan.
BACKGROUND
Mr Bradley is 32 years old.[7]
[7] Exhibit 1, page 328.
In 2020, Mr Bradley was granted access to the NDIS and made a participant pursuant to the early intervention requirements in section 25 of the NDIS Act in respect of his ASD. He has also reported multiple other diagnoses such as bashful bladder syndrome, Sertoli-Cell Only Syndrome, Developmental Coordination Disorder (DCD) with hypertonia/dystonia, Sensory Processing Disorder and Klinefelter’s Syndrome.
On 20 July 2020, the NDIA approved a 12-month NDIS plan with a statement of participant supports for Mr Bradley under subsection 33(2) of the NDIS Act, comprising total funding of $25,648.60.[8]
[8] Ibid., pages 324-356.
On 29 September 2020, Mr Bradley requested a review of his NDIS plan.[9]
[9] Ibid., pages 96-116.
On 3 December 2020, the NDIA made a decision regarding the supports provided to Mr Bradley.[10] This is one of the two decisions under review by the Tribunal. The NDIA changed Mr Bradley’s NDIS funding to be self-managed and varied his statement of participant supports in a new eight month NDIS plan, as follows:[11]
[10] Ibid., pages 297-322.
[11] Ibid.
(c)an increased Capacity Building budget to provide:
(i)58 hours per year (39 hours over 8 months) of psychological support;
(ii)26 hours per year of physiotherapy (18 hours over 8 months), plus 1 hour each week for a therapy assistant (over 8 months);
(iii)34 hours per year for occupational therapy (23 hours over 8 months);
(iv)10 hours per year for a dietician (7 hours over 8 months);
(v)1 hour monthly for podiatry (over 8 months); and
(vi)dysphagia support in the form of 12 hours per year for speech therapy (8 hours over 8 months); and
(d)an increased Core Support budget to provide:
(i)funding for a support worker, twice a week for 4 hours (over 35 weeks);
(ii)gardening assistance for 1 hour per week;
(iii)cleaning assistance for 1 hour per week; and
(iv)$240 for physiotherapy specific shoes.
In that reviewable decision, the NDIA confirmed the original decision not to provide Mr Bradley with funding for a range of requested supports, including:[12]
[12] Ibid., pages 300-301.
(a)Short Term Accommodation (STA);
(b)A Zip Hydrotap;
(c)Level 3 Transport;
(d)A mobility assistance dog and ancillary costs;
(e)A fully accessible Specialist Disability Accommodation (SDA) dwelling;
(f)Capital co-investment/co-payment and/or co-payment of current rental costs that is directly attributable to disability-related needs;
(g)A lifetime of housing modifications in each rented premises;
(h)Co-payment of car modifications;
(i)A consultant chef;
(j)Nutritional supplements and food thickeners;
(k)Increased Consumables Budget for psychological aids, dietetics, sensory appropriate bedsheets and clothing and ergonomic and extended posture supportive mattress, two sets of podiatry recommended shoes and speech therapy;
(l)A lumbar supported high set automated chair;
(m)A social support worker; and
(n)Ancillary and maintenance costs for a high volume carbonation device.
As a result of the NDIA’s decision, under Mr Bradley’s self-managed eight-month NDIS plan, effective from 3 December 2020 until 3 August 2021, his statement of participant supports comprised funding totalling $44,295.28 and entailed the following supports:[13]
(a)$10,544 for Core Supports, including $1,240 for assistive technology for the purchase of Basic (Level 1) and Standard (Level 2) assistive technology and associated minor repairs, together with funding to help maintain the home environment, specifically house cleaning, gardening and yard maintenance, preparation of meals, and self-care activities; and
(b)$33,751.28 for Capacity Building Supports comprising:
(v)$25,846.79 for a therapist, therapy assistant and allied health professionals for improved daily living;
(vi)$1,357.93 for a dietician to support meal planning for improved health and wellbeing; and
(vii)$6,546.56 for life skills development and training to increase social and community participation.
[13] Ibid., pages 389-392.
On 6 December 2020, Mr Bradley applied to the Tribunal for review of the NDIA’s decision (being Tribunal application 2020/8122).[14]
[14] Ibid., pages 1-296.
On 20 January 2021, the NDIA determined that it would not conduct a requested review of Mr Bradley’s NDIS plan under section 48 of the NDIS Act.[15] Mr Bradley had requested further supports be included in his NDIS plan due to a reported change in circumstances, however the NDIA found that he had ‘not provided information that tells us how your circumstances have changed, or another reason to make a change to your supports’.[16]
[15] Exhibit 10, pages 16-19.
[16] Ibid., page 19.
On 21 January 2021, Mr Bradley applied to the Tribunal for review of the 2021 decision not to review his NDIS plan (being Tribunal application 2021/0352).[17]
[17] Ibid., pages 1-15.
In April 2022, during the course of these proceedings, Mr Bradley provided a document identifying each of 107 supports he requested be funded by the NDIA.[18]
[18] Exhibit 8.
In October and November 2022, the Tribunal held a hearing of Mr Bradley’s applications by the videoconferencing facility, Microsoft Teams. The Tribunal has considered all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act), the parties’ ‘Joint Tender Bundle’ of documents, the Applicant’s bundle of evidence, including that provided after the hearing, the bundle of summonsed documents, together with the parties’ submissions, including the parties’ written closing submissions in these proceedings.[19] In total, the Tribunal had before it approximately 3,000 pages of documents.
LEGISLATIVE INSTRUMENTS & POLICY
[19] Exhibit 1 (comprising 714 pages), Exhibit 2 (1,352 pages), Exhibit 3 (612 pages), Exhibit 10 (187 pages), and the Closing Submissions of the Respondent dated 15 December 2022 (28 pages) and the Applicant’s Closing Submissions dated 27 February 2023 (115 pages, excluding annexures).
The NDIS Act
The objects of the NDIS Act, set out in section 3, include to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability…
Subsection3(3) of the NDIS Act provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS and to the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.
Section 4 of the NDIS Act sets out the general principles guiding actions under the legislation, including that:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2)People with disability should be supported to participate in and contribute to social and economic life.
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
…
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
…
(10)People with disability should have their privacy and dignity respected.
(11)Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
Subsection 4(17) of the NDIS Act also provides that:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Under section 9 of the NDIS Act, ‘participant’ means ‘a person who is a participant in the National Disability Insurance Scheme (see sections 28, 29, and 30)’. Relevantly for these proceedings, subsection 28(1) provides that a person becomes a participant in the NDIS ‘on the day the CEO [of the NDIA] decides that the person meets the access criteria’. Section 21 of the NDIS Act provides that a person meets the access criteria when, relevantly, they meet either section 24, being the disability requirements, or section 25, being the early intervention requirements.
Section 14 of the NDIS Act states that the NDIA ‘may provide assistance in the form of funding for persons or entities’:
(a) for the purposes of enabling those persons or entities to provide information in relation to disability and disability supports and services; or
(aa) for the purposes of enabling those persons or entities to provide assistance in building capacity within the community in connection with the provision of goods and services to people with disability and their families and carers; or
(ab) for the purposes of enabling those persons or entities to assist people with disability to realise their potential for physical, social, emotional and intellectual development; or
(ac) for the purposes of enabling those persons or entities to assist people with disability, and their families and carers, to participate in social and economic life; or
(b) otherwise in the performance of the Agency’s functions.
(2) Without limiting subsection (1), the Agency may provide funding to a person or entity:
(a) to assist one or more participants to receive supports; or
(b) to assist a participant who is a child aged under 7 to access supports, before the child’s plan comes into effect, in relation to the child’s disability needs (whether those needs arise because the child meets the disability requirements or meets the early intervention requirements).
(3) The National Disability Insurance Scheme rules may set out matters to which the Agency must have regard in deciding whether to provide funding under subsection (2).
Section 32 of the NDIS Act provides that if a person becomes a participant in the NDIS, the CEO of the NDIA must facilitate the preparation of the participant’s plan and this is to occur within 21 days of the person becoming an NDIS participant. Subsection 33(2)(b) of the NDIS Act requires a participant’s plan to include a statement, being the ‘statement of participant supports’, prepared with the participant and approved by the CEO of the NDIA, that specifies ‘the reasonable and necessary supports (if any) that will be funded’ under the NDIS.
Subsection 33(5) of the NDIS Act stipulates that in deciding whether or not to approve a statement of participant supports under subsection (2), the CEO of the NDIA or, in these proceedings, the Tribunal, must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
The criteria in section 34 of the NDIS Act set out what supports will be provided to an NDIS participant, as follows:
(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:
(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 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:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle), Mortimer J (as her Honour then was) observed that:[20]
Although the phrase “reasonable and necessary supports” is used throughout the legislative scheme, including in the objects and principles provisions, it is not defined. Its meaning can be derived from the context in which it is used, especially in my opinion s 4(11), which sets out what reasonable and necessary supports should enable and empower people with a disability to do, read with s 14 which sets out the purposes for which funding for reasonable and necessary supports is provided.
...
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
…
In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.
[20] At [41]-43] and [91]-[93].

As the Full Federal Court of Australia explained in National Disability Insurance Agency v WRMF (2020) 276 FCR 415 (WRMF) at [201]:
The matters set out in s 34(1) are more than mandatory considerations, because in terms s 34 requires that a decision-maker be positively satisfied about each matter. They are more in the nature of criteria of which the decisions-maker (CEO, delegate or Tribunal) must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material.
NDIS Rules
Pursuant to subsection 209(1) of the NDIS Act, the Minister may, by legislative instrument, make rules regarding the NDIS. Subsection 34(2) of the NDIS Act authorises NDIS rules to 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)(a) to (f)’ in section 34. Such rules include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules), which relate to the assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS and the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2018 (SDA Rules). The CEO of the NDIA, or here the Tribunal, is bound to apply any NDIS rules, pursuant to subsection 33(5)(d) of the NDIS Act.
Supports Rules
Paragraph 1.3 of the Supports Rules, in line with subsection3(3) of the NDIS Act, provides that in giving effect to the objects set out in the Supports Rules, ‘regard is to be had to the need to ensure the financial sustainability of the NDIS’. Additionally, paragraph 2.5 of the Supports Rules states that in administering the NDIS and in approving each plan, ‘the CEO must have regard to [the] objects and principles of the Act including the need to ensure the financial sustainability of the NDIS and the principles relating to plans’.
Part 3 of the Supports Rules provides guidance for assessing whether supports meet the criteria in subsection 34(1) of the NDIS Act to be found to be ‘reasonable and necessary supports’ that will be funded by the NDIA.
Paragraph 3.1 of the Supports Rules relates to the ‘value for money’ criterion in subsection 34(1)(c) of the NDIS Act, and provides that:
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).
Paragraphs 3.2 and 3.3 of the Supports Rules relate to the ‘effective and beneficial’ criterion in subsection 34(1)(d) of the NDIS Act, and provide that:
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.
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.
Paragraphs 5.1 and 5.2 of the Supports Rules set out general criteria for whether supports are reasonable and necessary, as follows:
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.
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.
Schedule 1 of the Supports Rules sets out the considerations to be taken into account when deciding whether it is appropriate for the NDIS to fund a particular support (as opposed to another service system), including health, mental health, higher education and vocational education and training, employment, housing and community infrastructure and transport.
The SDA Rules
Paragraph 11 of the SDA Rules provides that a participant is eligible to receive support for SDA under the NDIS if the CEO of the NDIA is satisfied that they have ‘an extreme functional impairment’ or ‘very high support needs’, and the participant ‘meets the SDA needs requirement’.
In accordance with paragraph 12(1) of the SDA Rules, a participant has an ‘extreme functional impairment’ if:
(a)the impairment results in ‘extremely reduced functional capacity’ to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i)mobility;
(ii)self-care;
(iii)self-management; and
(b)the participant has ‘a very high need for person‑to‑person supports in undertaking the activity even with assistive technology, equipment or home modifications’.
Paragraph 13 of the SDA Rules provides that an NDIS participant has ‘very high support needs’ if:
(a)they have lived in SDA for extended periods and living in that accommodation has impacted on their capacity to transition to alternative living arrangements and support; or
(b)they have ‘a very high need for person-to-person supports, either immediately available or constant, for a significant part of the day’ and either:
(i)there are limitations in the availability, capacity or capability of their informal support network or risks to its sustainability; or
(ii)they are at risk or pose a risk to others, and that risk could be mitigated by the provision of SDA, having regard to their response to risk and their interaction with the environment.
Operational Guidelines
The NDIA has made numerous operational guidelines, and specifically in relation to the application of the NDIS Act, the Supports Rules and the SDA Rules. The operational guidelines represent government policy and, to the extent that they are consistent with the legislative scheme, should be applied by the Tribunal unless there is good reason not to do so.[21] The Tribunal is satisfied that it should apply the relevant operational guidelines in these proceedings.
EVIDENCE
Lay evidence
[21] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. See also Madelaine and National Disability Insurance Agency [2019] AATA 4025 at [9].
Mr Bradley
As set out above in these reasons, the Tribunal has considered a large volume of material provided by the parties in these proceedings, including submissions made by Mr Bradley to support his applications, being his Statement of Reply filed in October 2022 and Closing Written Submissions dated 27 February 2023.[22] The Tribunal has also considered Mr Bradley’s statement of goals and aspirations filed in these proceedings.[23]
[22] Exhibit 1, pages 617-709.
[23] Exhibit 2, pages 364-374.
Mr Bradley gave evidence at the Tribunal hearing. By way of cross-examination, Mr Bradley confirmed the therapies he is receiving are speech therapy for communication and dysphagia, he sees two dieticians with different practices, occupational therapy, physiotherapy (including pelvic floor physiotherapy), psychology and podiatry. For dysphagia, Mr Bradley sees Ms Stevens, Speech Pathologist, fortnightly for 45 minutes. He has been seeing Ms Stevens since January 2021. Since February 2022, Mr Bradley has been seeing another speech pathologist fortnightly for one hour in relation to his speech and communication. He told the Tribunal that he has not seen one of his dieticians, Mr Michael Hann, for some months and has also been unable to attend on his second dietician, Ms Elizabeth Low. Mr Bradley said that he commenced consulting Ms Low after Mr Hann recommended he increase certain food in his diet that was incompatible with the international dysphagia diet standards. Ms Low is assisting Mr Bradley to implement a diet that reduces the amount of aspiration and increases nutritional intake.
Mr Bradley further told the Tribunal that he is receiving physiotherapy in relation to his pelvic floor from Mr Stuart Baptist in Sydney, but has not been able to attend on him since August 2019. Mr Bradley has been attending a local physiotherapist twice weekly. They provide assistance with joint stability, core strength, and dry needling or acupuncture. Mr Bradley sees a podiatrist every two months and this started in late 2020.
Mr Bradley confirmed that he has psychology sessions with Mr Anderson, which commenced in 2019; he told the Tribunal he attended two weeks ago but that there is no set schedule of appointments. These sessions were said to vary between one and four hours, but Mr Bradley told the Tribunal he did not have the funding in his NDIS plan to see Mr Anderson on a monthly basis. However, Mr Bradley considered that before he appealed the NDIA’s decision before the Tribunal he had attended on Mr Anderson every two or three weeks. He said he has prioritised physiotherapy and ‘dysphagia speech therapy’. Mr Bradley was unsure how many times he had consulted with Mr Anderson in the last 12 months. He then told the Tribunal that he stopped seeing Mr Anderson regularly when he ‘ran out of funding’, because the NDIA requested specific assessments that utilised a considerable amount of his funding. Mr Bradley subsequently clarified that his funding had not run out, but rather that he ‘had to prioritise’ and chose to see other practitioners from 2020, rather than his psychologist.
Mr Bradley was referred to the recommendation of Mr Anderson in his letter dated 27 November 2020, also made by Dr Andrew Grey, Psychologist, for cognitive therapy and specifically, Acceptance Therapy, in relation to his ‘sensory conditions’.[24] Mr Bradley told the Tribunal that he recalled discussing this recommendation with both Mr Anderson and Dr Grey, but Mr Bradley did not accept this recommendation; he told them he was seeking another opinion because he believed that the first speech pathologist ‘was inaccurate’. Mr Bradley did accept that both Mr Anderson and Dr Grey recommended he have cognitive therapy, including Mr Anderson recommending Acceptance Therapy. However, Mr Bradley said Mr Anderson made this recommendation based on material available at that time; Mr Bradley did not agree with the Speech Pathologist, Ms Jane-Maree Perkins, and sought a referral to another speech pathologist. Mr Bradley further told the Tribunal that, in part, he accepted the recommendations outlined in Mr Anderson’s letter for him to have cognitive behaviour therapy in relation to ‘sensory processing difficulties’ identified by both himself and Ms Ann Crane, Occupational Therapist. He agreed to a multi-disciplinary team providing the necessary supports and he had no objection to cognitive behaviour therapy. Mr Bradley agreed this treatment could be provided by Mr Anderson, but considered it would presently be ‘inappropriate’ given his current clinical presentation with dysphagia. Mr Bradley agreed that there were no barriers to him undertaking cognitive behaviour therapy as recommended, but referred to the Speech Pathologist, Ms Stevens’ opinion that he has ‘sensory seeking behaviours related to eating’ that is incompatible with international dysphagia guidelines on safe eating.
[24] Exhibit 10, pages 13-14.
Mr Bradley told the Tribunal that his understanding of Mr Anderson’s recommended therapy was monthly at his house to reduce his fear of ‘aspiration events’ that have occurred over the last few years, support to reduce anxiety regarding choking on saliva in his sleep, and some joint sessions with a chef to ensure food required under international dysphagia standards is ‘supporting my psychological wellbeing’. Mr Bradley was asked whether he no longer required counselling for sensory processing difficulties. He stated that the report referred to his ‘sensory aversion’ and, given ‘my food eating is sensory seeking they require different therapy’.
Mr Bradley told the Tribunal that he is receiving ‘unstructured’ occupational therapy from Ms Crane and she is not following any particular program. All but one or two of these appointments are face-to-face and ranged from two hours up to four or five hours for full functional assessments and ‘small bits of therapy’. He said Ms Crane had provided ideas of how to perform activities of daily living in a better functional manner.
Mr Bradley confirmed that he was diagnosed with Asperger’s syndrome (now identified under ASD) when he was 17 years old. His Klinefelter’s Syndrome was diagnosed in February 2016 and Developmental Co-ordination Disorder (or DCD) was first diagnosed in 2019 by Mr Anderson. Mr Bradley saw a Neurologist, Dr Melinda Pascoe, in November 2021.[25] He said Ms Pascoe’s other assessments led her to recommend an MRI of Mr Bradley’s brain, which she noted was ‘unremarkable’.[26] Dr Pascoe recommended no other investigations. In response to a question about the basis for Dr Pascoe’s opinion that he has dysphagia, Mr Bradley referred to his statement of goals and aspirations, in which he stated that Dr Pascoe’s opinion was that he has a ‘central nervous system dysfunction’, which ‘does not have a specific name’. He confirmed that this was not written in any reports before the Tribunal and was provided in the course of a private telehealth consultation.
[25] Exhibit 2, page 213.
[26] Ibid.
Mr Bradley was referred to his Statement in Reply which referred to various studies, such as a nerve conduction study and electromyography, that ‘confirmed the applicant has dysphagia’.[27] He told the Tribunal these were suitable studies to determine whether there is a ‘neurological cause to dysphagia’. He considered that Dr Pascoe had found ‘enough evidence’ to eliminate Munchausen’s syndrome, such that he was ‘not faking it’ and ‘there is a neurological basis’. Counsel referred to the MRI being described as ‘unremarkable’ and asked whether any documentary evidence from Dr Pascoe concluded that there is a neurological cause of his dysphagia. Mr Bradley referred again to Dr Pascoe’s letter of 6 December 2021 stating that he has ‘significant problems with dysphagia, a consequence of his low motor tone secondary to his Klinefelter Syndrome, exacerbated by his Autistic Spectrum Disorder’ and that ‘I don’t’ believe he has Munchausen’s Syndrome’.[28] He told the Tribunal that ‘although it is not explicitly said, I believe, based on the consultation…that there is a neurological reason, through a central nervous system dysfunction, that has informed her expert opinion’, whereby his ‘brain and the muscles that receive those signals, have errors’. Mr Bradley said that the reference to Munchausen’s Syndrome by Dr Pascoe was because he told her that ‘a professional had misquoted the psychologist as stating conversion disorder’.
[27] Exhibit 1, page 651.
[28] Exhibit 2, page 213.
Mr Bradley was referred by Counsel to the notes of his general practitioner from 29 January 2020, headed ‘Dyspraxia’, which recorded that he ‘needs referral for neurologist’, feels very stiff and has to regularly get dry needling, and ‘recently diagnosed with dyspraxia’.[29] Mr Bradley recalled this appointment and said the dyspraxia diagnosis did not relate to the referral to a neurologist; it related to ‘the hypertonia’ and ‘multiple topics were discussed’.
[29] Exhibit 3, page 354.
Mr Bradley also recalled Ms Perkins, Speech Pathologist, in September and October 2020 recommending referral to a neurologist. Ms Perkins’ recommendations for neurological services were not provided to Dr Pascoe, but Ms Stevens’ reason for referral was provided in relation to dysphagia.
Counsel referred Mr Bradley to the report of Ms Perkins dated 6 October 2020 and, in particular, the Food Intake Report from 11 and 20 August 2020, which Mr Bradley completed.[30] It listed Mr Bradley consuming ‘carbonated beverages, milk drinks, tea, milo’ and a ‘wide variety’ of fruits and a ‘wide range and variety’ of vegetables.[31] Mr Bradley told the Tribunal that they were ‘reasonable reports of dishes or certain ingredients that were used within the foods eaten at that time’. Ms Perkins conducted a face-to-face oral muscular assessment, but Mr Bradley could not recall particular exercises that were undertaken given the passage of time. He did recall undertaking a clinical swallowing assessment requiring the drinking of ‘[t]hin fluids via cup and bottle drinking’.[32]
[30] Ibid., pages 131-137.
[31] Ibid., page 133.
[32] Ibid., page 134.
Mr Bradley agreed that he reported to Ms Perkins having, among other things, an ‘upper limb tremor, reduced overall endurance and strength, intermittent inability to stand up without support’ and ‘not having enough upper limb strength to chop food and feed himself’.[33] He told the Tribunal this was happening on ‘most days’.
[33] Ibid., page 133.
Counsel referred to the section of Ms Perkins’ report titled ‘Challenging Food Intake’, where Mr Bradley videoed himself eating ‘a food he perceived as being very difficult for him’, being a ‘regular steak’.[34] Ms Perkins observed in her report that Mr Bradley was ‘able to independently use a knife and fork, cut up bite size pieces of the meat and feed himself with nil upper limb tremor or fatigue noted’.[35] He recalled this report.
[34] Ibid., page 135.
[35] Ibid.
Mr Bradley was referred to education provided to him by Ms Perkins on ‘the range of a normal swallowing process’ and her statement that terms ‘such as aspiration and penetration have been explained in the context of swallowing and Richard has been provided with frequent information that he does not aspirate and does not present with a medical history to suggest that he has suffered from recurrent aspiration pneumonia’.[36] He was asked whether he agreed that this was the message provided to him by Ms Perkins. He replied: ‘No, that is the statement that Jane-Maree Perkins made’. When asked whether it accurately recorded the information Ms Perkins provided Mr Bradley, he said it was accurate ‘that she made that statement’. He did not recall his response to Ms Perkins.
[36] Ibid.

Counsel referred to Mr Anderson’s report of 11 February 2020, which noted his administration on Mr Bradley of the Personality Assessment Inventory (or PAI).[37] Mr Anderson’s report stated that the test results from the PAI ‘suggested the following diagnostic considerations…Major Depressive Disorder…Conversion Disorder’.[38] Counsel also referred to Mr Anderson’s report quoting the PAI as stating that:[39]
The respondent (Richard Bradley) demonstrates an unusual degree of concern about physical functioning and health matters and probable impairment arising from somatic symptoms. He is likely to report his daily functioning has been compromised by numerous and varied physical problems. He feels that his health is not as good as his age peers and likely believes that his health problems are complex and difficult to treat successfully.
[37] Exhibit 2, pages 20-52.
[38] Ibid., page 22.
[39] Ibid., page 24.
Mr Bradley was asked whether he agreed that Mr Anderson’s report did not reject the diagnostic possibilities of Major Depressive Disorder or Conversion Disorder. Mr Bradley referred to Mr Anderson’s subsequent letter from 28 June 2022, which stated that he had ‘not diagnosed Conversion Disorder’ and ‘did not mention Major Depressive Disorder’.[40] Counsel put to Mr Bradley that this subsequent correspondence from Mr Anderson would not have been before Ms Perkins when she referred to these conditions in her October 2020 report.[41] He referred to Mr Anderson’s June 2022 letter stating that Ms Perkins had quoted from the PAI report containing ‘diagnostic possibilities’, whereas ‘all other sources of information’ are required to be considered before making any diagnosis, and Mr Anderson was therefore ‘misquoted’ by Ms Perkins in her report as having made such diagnoses.[42]
[40] Ibid., page 311.
[41] Exhibit 3, page 137.
[42] Exhibit 2, pages 310-311.
Mr Bradley was again asked whether he agreed that Mr Anderson’s report of 11 February 2020 did not expressly exclude the diagnostic conditions propounded by the PAI. Mr Bradley referred to the diagnoses made by Mr Anderson, being ASD and DCD. He did however agree that the report also described the results of the PAI which identified two other diagnostic considerations.
Counsel for the NDIA asked Mr Bradley whether he considered there had been any change over the last two to four years in his ability to undertake daily activities. He told the Tribunal that there had been ‘decline, slightly’ over the years and especially in the last 18 months ‘where I have suffered a number of aspirations resulting in hospitalisation’. He considered this was because, based on his medical practitioners’ views, he has been ‘unable to support my disability’. He told the Tribunal his reported inability to cut up food and feed himself in October 2020 was, at that time, an ‘intermittent issue’ that had been occurring for several years.[43]
[43] Exhibit 3, page 133.
Counsel referred Mr Bradley to the report of Ms Tamara Urquhart, Physiotherapist, dated 24 November 2021.[44] She recorded that Mr Bradley reported ‘a cyclical increase in his muscle tone every 3 weeks, coinciding with the dry needling’ and that when dry needling is provided to decrease his muscle tone ‘his joints become more unstable to the point that Richard’s knee collapse under him and he becomes more susceptible to injury’.[45] He told the Tribunal this was gleaned from Ms Urquhart’s clinical records of their physiotherapy sessions.[46] Mr Bradley said he has his legs, feet and around the joints needled at Ms Urquhart’s physiotherapy clinic, which was recommended by Mr Baptist, Physiotherapist, whom had performed dry needling of his pelvic floor. Mr Bradley said the effect of his knees collapsing lasts for one week after receiving dry needling. However, Mr Bradley said he has increased functioning after dry needling because, without it, he has reduced functioning. Mr Bradley referred to the report saying it was ‘more complex’ than a ‘yes or no answer’. However, Mr Bradley confirmed that his ability to walk independently is impacted, but considered this treatment to be effective and beneficial to maintain his mobility. He told the Tribunal that, one week after needling, he can walk independently but relies on aids and his partner for assistance. In the third week after dry needling, his mobility is ‘worsening’ due to ‘tightening muscles’ making walking difficult. Mr Bradley confirmed his evidence was that, at his best in week two after dry needling, he still required support to walk ‘independently and safely’.
[44] Exhibit 2, pages 205-212.
[45] Ibid., page 206.
[46] Exhibit 3, pages 443-612.
Mr Bradley was referred to Ms Urquhart’s suggestion of a ‘walking stick or frame’, a ‘walk belt’ being ‘beneficial’ and consideration of a ‘mobility assistance dog’.[47] Mr Bradley told the Tribunal his preference is for a mobility dog because that would be ‘the greatest thing to assisting me to achieving my goals’. He was asked how he understood a mobility dog would assist him to walk. Mr Bradley referred to the professional dog trainer, Avery Keller, sourcing and selecting a particular dog suitable to work with him providing ‘brace and stability function’, plus a ‘specialised harness’ to tether him to the dog in order to prevent falling. He told the Tribunal he has trialled a walker, but said this decreased his ability to independently undertake day-to-day functioning; he required assistance opening doors, could not ‘do a whole shopping run’ due to the space it occupied in the car and he could not push both a shopping trolley and the walking aid. Mr Bradley said that if he had a mobility assistance dog, it would be tethered to his side and he could still push a shopping trolley.
[47] Exhibit 2, page 207.
Mr Bradley was further referred to Ms Urquhart’s support for him to learn to skydive.[48] He confirmed that his goal is to participate in ‘age appropriate activities’, which includes learning to skydive or undertake simulated indoor skydiving. Mr Bradley confirmed that he told Ms Urquhart he would like to engage in this activity. He has trialled this activity on multiple occasions and has participated in both indoor and outdoor skydiving, including with a local skydiving group. He told the Tribunal a suit and helmet is ordinarily worn, although he does not wear the latter ‘because of sensory issues’. Mr Bradley confirmed that he is seeking support to learn to skydive. He said the dry needling was given in the week before undertaking skydiving, which therefore increased his functioning and ability to participate. Mr Bradley said he occasionally requires assistance to walk to the skydiving site and is now trained in putting on the equipment alone. He is assisted in and out of the indoor skydiving chamber. Mr Bradley told the Tribunal that he has disclosed his medical conditions to the skydiving centre and signed a waiver in relation to liability, as with any other person.
[48] Ibid., page 208.
Counsel for the NDIA asked Mr Bradley whether his reported tremor in the upper limbs impacts his ability to dress himself. He told the Tribunal it does ‘in the evenings’ and he has ‘increased muscular fatigue’ during the day. Mr Bradley was further referred to Ms Urquhart’s statement that he ‘would not be able to urinate standing or have a shower independently’.[49] He agreed with the statement and told the Tribunal that he could not recall ever standing to urinate from a young age and the difficulty with showering was said to be in ‘the last few years’, but before 2020 when he was granted access to the NDIS. Mr Bradley did not discuss with Mr Baptist his inability to shower independently because he was referred to him for an unrelated reason, however Mr Bradley said he believed there was ‘some discussion over walking’ and referred to his reports. In this regard, Mr Bradley was referred to Mr Baptist noting that he had difficulty walking after three kilometres, with severe cramping.[50] He told the Tribunal this was an ‘aided walk’ with his partner and Mr Baptist did not observe his gait, only the difficulties ‘in distances over three kilometres’. Mr Bradley said he could not, during this time between 2016 and 2019, walk independently for three kilometres. He also said he could not shower independently during this time.
[49] Ibid.
[50] Exhibit 3, page 440.
Mr Bradley was referred again to Ms Urquhart’s report that he would need ‘physical assistance transferring from sitting to standing and is therefore unable to toilet alone’.[51] Mr Bradley said he agreed with this statement.
[51] Exhibit 2, page 208.
Mr Bradley told the Tribunal he ceased his employment at a Woolworths supermarket in early 2020. He worked four to five hour shifts and had ‘many things to lean on or hold onto to keep myself upright’ and was able to sit during his 45 minute lunch break. He confirmed that he was able to work with a heavy cage of stock to prevent falls, together with appropriate footwear. Mr Bradley worked in this job from 2015. He said he was able to function better in this role with dry needling and his joints were more flexible and he was aided with the cage of stock. Mr Bradley was asked whether he requested any accommodations due to his physical and mobility impairments and told the Tribunal he requested to work alone, he was given lighter duties and longer breaks by himself. It was put to Mr Bradley that none of these adjustments related to mobility. He agreed and confirmed that he made no such accommodation requests. Mr Bradley’s present goal is to pursue a post-doctoral thesis and work as an academic.
Counsel took Mr Bradley to the recommendations of Ms Low, Dietician, for a range of items in relation to cooking, food preparation and other matters, and asked whether Ms Low had enquired with him about what aids he wanted. Mr Bradley replied that if his goal is to eat age appropriate foods, then she will ‘get my feedback as to what appliances I require’ as part of the ‘shared decision-making process’. He told the Tribunal certain supports not recommended by the dietician are included in his request for supports. They discussed a ‘list of items’ that would assist Mr Bradley to prepare his own meals, together with supports following discussions with Ms Stevens, Speech Pathologist, and a dysphagia chef, Mr Peter Morgan-Jones. Mr Bradley said a requested mobility assistance dog would be standing next to him to prevent falls. He further confirmed it would be ‘the dog that stops me from falling’, not the harness, which would tether him to the animal. In this regard, Mr Bradley told the Tribunal that if he lost his balance he would put his weight on the dog, which is why it is a ‘brace and stability’ mobility assistance animal.
Mr Bradley was asked how the recommendation for a dysphagia chef arose and he told the Tribunal that Ms Sally Ireland, Speech Pathologist, first recommended a chef before he became an NDIS participant; it was ‘assumed based on my condition and my disability that having a chef to assist me in being able to make food that is both supportive of my sensory needs but is easy to swallow would be of great benefit’. Mr Bradley confirmed that Ms Ireland did not conduct an independent assessment, but relied on Ms Perkins’ report and that of Mid-North Coast Health District. He confirmed that Mr Anderson, Psychologist, recommended a chef in his most recent report. Mr Bradley further confirmed that undertaking age-appropriate activities, such as preparing a family meal, is one of his goals.
In re-examination, Mr Bradley referred the Tribunal to a letter to an occupational therapist from his general practitioner, Dr Daniela Radulescu, dated 13 January 2022, which listed DCD, among other conditions, and that this was ‘a referral reason to a driving occupational therapist therefore there has been a confirmation from a medical practitioner’ of DCD.[52] Mr Bradley referred to the focus in his cross-examination conducted by Counsel for the NDIA being on diagnoses, rather than his daily functioning. In this regard, he referred to the multiple reports discussing the functional impact of his conditions. Mr Bradley said the NDIA had ‘cherry picked’ comments from Ms Urquhart’s report about his ‘proposed therapeutic program’ and functioning and omitted references to a number of other specialists and medical references to support her opinion.[53] He also referred to his ‘anecdotal’ reports of the impact of dry needling to assist with mobility. Furthermore, Mr Bradley told the Tribunal that Ms Urquhart had recommended a walking stick or frame as a short-term option, because they limit his ability to participate in ‘age appropriate activities such as hiking and shopping independently’.[54]
[52] Ibid., page 348.
[53] Ibid., pages 205-212.
[54] Ibid., page 207.
Mr Bradley also referred to his Statement of Reply, which stated that clinical notes from his physiotherapist detail an ‘unsteady gait, loses balance at times, and has a wide base of support’ and in ‘other objective observations the applicant is noted as having unsteady gait and falling to the left, or having a lateral sway noted in 64 sessions over a period of 46 weeks’ and the recommendation for dry needling for pain management.[55] Mr Bradley referred to the ‘level of complexity’ of his diagnoses and their interactions to ‘create a unique functional disability’. In this regard, Mr Bradley referred to Mr Anderson’s report that ‘[a]s a NDIS Participant with Level 3 Autism, unless a therapeutic program has the full support of that participant it is unlikely to be beneficial and there will be poor compliance to the support program’.[56]
[55] Exhibit 1, page 675.
[56] Exhibit 2, page 245.
Mr Bradley further said he was ‘terrified’ that if he drinks and swallows incorrectly he will die. He referred to the value of reports and that he has a large multidisciplinary team due to the complexity of his impairments and the goals he has set for his life.[57] He also referred to the evidence from multiple specialists and the impact on his life, including the requirement to withdraw from his studies for a PhD.[58] Mr Bradley considers himself a ‘prisoner in my own home’, his partner is caring for him ‘all the time’ and helping him with all activities of daily living.
Medical evidence
[57] Ibid., pages 364-374.
[58] Ibid., page 364.
Dr Veena Jayadev – Andrology Staff Specialist
On 19 April 2019, Dr Jayadev provided a report to the NDIA, which relevantly noted that Mr Bradley ‘had a diagnosis of Klinefelter’s made at the end of January 2016’ and further stated that:[59]
This diagnosis was made on chromosomal studies undertaken on 19 May 2016.
Klinefelter syndrome is associated with learning and behaviour difficulties. The general intellectual ability of men with Klinefelter syndrome is within the normal range. However, men with Klinefelter syndrome may have: Difficulties with speech and reading, Delayed motor development, Reduced attention span, Behavioural problems.
Educational and allied health assistance may be required…
From an Endocrinology perspective, he has low bone density, which is common in men who have low testosterone in their early adulthood, and increases his risk of fractures.
[59] Ibid., page 19.
Dr Jayadev did not give evidence at the Tribunal hearing.
Ms Elizabeth Low – Dietician
On 19 December 2021, following an assessment of Mr Bradley on 21 November 2021, Ms Low provided a report contained in a NDIS ‘Nutrition and Dysphagia Assistive Technology Supports Assessment Template’.[60] This report ‘identifies from a dietetic perspective assistive technology that will enable Richard to overcome issues impeding Richard’s capacity to prepare and cook foods that will not only meet Richard’s nutrition and sensory requirements but meet these requirements in a way which is safe, tolerated and promotes independence’.[61] Some of these included a carbonated water maker to ‘improve current fluid intake’, a blender, Kitchen Aid attachments, slow/pressure cooker, and crockery.[62] Ms Low also recommended ongoing nutritional advice and support from a dietician, support from a speech pathologist to ‘improve sensory issues with food associated with ASD’ and support from a psychologist to ‘assist with anxiety around eating foods known to cause previous and ongoing episodes of aspiration’.[63]
[60] Ibid., pages 262-293.
[61] Ibid., page 269.
[62] Ibid., pages 282-283.
[63] Ibid., page 285.
The Tribunal has also considered the undated letter from Ms Low to Dr Radulescu, General Practitioner, which document was requested by Mr Bradley ‘to provide to you a summary of his medical issues as described to NDIS’.[64]
[64] Ibid., pages 349-350.
Ms Low gave evidence at the Tribunal hearing and confirmed that the types of conditions she deals with as a dietician include intellectual disability, dysphagia and physical and other complex conditions such as ASD. She told the Tribunal that Mr Bradley was ‘probably the youngest’ client she has seen with dysphagia. Ms Low confirmed that it was not in the scope of her practise to determine whether Mr Bradley does or does not have dysphagia; if the speech pathologist presents a report she is required to accept that diagnosis. Ms Low did not get a sense that there was disagreement between the speech pathologists regarding Mr Bradley’s diagnosis of dysphagia. She added that there are ‘some complexities’ due to his Klinefelter’s Syndrome, tongue tie and DCD ‘implying some neurological issue’, but also noted that these matters are outside her expertise.
Ms Low told the Tribunal that Mr Bradley’s ‘food levels are level 4/5’, referring to the international guide that provides levels of food tolerance speech pathologists have agreed will be manageable by a person, being the International Dysphagia Diet Standardisation Initiative (or IDDSI).[65] Ms Low further stated that, for her use as a dietician, the IDDSI describes ‘the texture modification required for that client to enable them to swallow food with minimal fear of choking or aspiration’. The levels start at zero and go up to level seven.[66] Ms Low told the Tribunal that speech pathologists had determined Mr Bradley’s IDDSI levels were four and five.
[65] Ibid., pages 488-513.
[66] Ibid., page 488.
Ms Low was referred to her statement that Mr Bradley prefers to drink carbonated water and she told the Tribunal she suspects ‘the carbonation slows down the swallowing, but there may also be a sensory element attached to that’ due to his ASD. Ms Low was further asked, if he can tolerate carbonated water, why he could not tolerate other liquids. Ms Low’s observation was that there is a ‘sensory component’, but also because the carbonation slows down the rate of swallowing. She told the Tribunal a speech pathologist was the relevant expert to provide further information.
Ms Low was referred to her report stating that there is a ‘neuromuscular’ condition which is the basis for the motor and swallowing difficulties and asked whether this aligned with the proposition that Mr Bradley can drink carbonated, but not other, fluids.[67] Ms Low told the Tribunal that a speech pathologist would be able to provide expert advice on this issue; she has outlined her understanding based on the reports provided by Mr Bradley.
[67] Ibid., page 267.
Ms Low was also referred to the list of options for Mr Bradley and how they were identified. She told the Tribunal a number of options were provided, because Mr Bradley asked for a ‘wide range of options to meet his goals’ of being able to ‘eat normally’ with a view that it was ‘up to NDIA to determine’ what would be funded.[68] Ms Low said Mr Bradley advised her what he ‘can and cannot tolerate’, the foods he enjoys and his intolerances to particular food thickeners and they then agreed on recommended supports. She told the Tribunal that foods were incorporated that would not take a long time to eat, because Mr Bradley can tire when eating, resulting in meals taking some time and the reheating or eating of food cold. She understood that Mr Bradley’s tiring during eating was ‘more complicated’ than solely because of chewing and referred to ‘a tongue tie issue’ related to Klinefelter’s Syndrome leading to a ‘processing’ issue, but this was best addressed by a speech pathologist.
[68] Ibid., page 272.

Counsel referred to the recommended appliances and Ms Low told the Tribunal she did not have regard to occupational therapy reports to determine their suitability; the recommendations ‘were based purely on the capacity of the device to produce a suitably textured food’. Ms Low further stated that a comprehensive list was provided ‘on the basis that not everything was going to likely be approved’. Ms Low told the Tribunal she checked with Mr Bradley regarding his functional capacity to use particular items and also noted that he ‘seems to have sufficient function to undertake some food preparation at the moment, although there are some issues around that, minimal I believe, but he is certainly able to do that’. Ms Low further said that Mr Bradley owns a KitchenAid, which suggests that using an attachment for this device would not be beyond his capability. She also referred to Mr Bradley having ‘some cooking lessons with a specialist chef’, which again ‘suggests he is quite capable of doing all this’. Ms Low suspected that Mr Bradley had these lessons because he mentioned them to her before she made her report.
Ms Low confirmed she did not refer to a food diary for Mr Bradley because she had ‘several conversations’ with him and ‘took quite extensive histories’ regarding his food tolerances, preferences, and intolerances and noted his ‘autism-related sensory desire for crunch’, which is ‘absolutely incompatible’ with dysphagia. She told the Tribunal another dietician, Mr Hann, compiled ‘a really good plan for someone who didn’t have dysphagia’ and she was not comfortable with the recommendation to ‘eat more nuts and seeds’ because this can be ‘quite difficult’ to swallow for a person with dysphagia. Ms Low was referred to Mr Hann’s recommendation to expand the range of nutrient-rich dense whole foods and its compatibility with dysphagia. She told the Tribunal that this was fine ‘as long as the food is prepared to the appropriate IDDSI level’, although she again noted Mr Bradley’s ‘sensory issues’ due to ASD which need to be considered; it requires a ‘graduated response’, to be done respectfully and in collaboration with the person, who has to be ‘motivated enough to do that otherwise it’s really, really difficult’.
By way of cross-examination, Mr Bradley asked Ms Low whether there are any other considerations, such as properties in food, that must be taken into account in determining his food choices. Ms Low told the Tribunal it was dependant on a number of things, including the food’s nutrient value, whether it can be processed in a way to enable Mr Bradley to swallow, whether he could deal with it ‘in a sensory fashion’ and its affordability. Ms Low was asked about the recommended equipment for food preparation and whether it was more risky for Mr Bradley to attempt to use them or to not have any means to facilitate preparing a meal to meet the IDDSI framework. Ms Low told the Tribunal it was ‘absolutely the latter’ and it would be ‘just terrible’ to not have the equipment available because he would then be restricted in the foods available, which could mean missing out on nutrients or being on the same repetitive foods thereby reducing appetite and potentially malnutrition.
Ms Ellie Annesley and Ms Melissa Parish – Speech Pathologists
On 14 February 2020, following referral from his general practitioner and recommendation by Ms Natasha Gadsen, Speech Pathologist, Mr Bradley underwent a ‘Videofluroscopic Swallow Study’ (or VFSS).[69] The VFSS was performed by the Speech Pathologists, Ms Annesley and Ms Parish, together with a radiologist, and thin fluids, a soft sandwich and a hard biscuit consistencies were assessed.[70] The subsequent report relevantly stated that:[71]
Richard presented with severe oral phase dysphagia characterised by self-reported inability to sustain chewing of firm foods due to suspected reduced strength of muscles of mastication, which causes cramping of the floor of mouth muscles and fatigue in the arms during self-feeding of small solid boluses. This was unable to be observed during assessment, as only a few mouthfuls were able to be trialled, due to Richard’s noted textural and taste hypersensitivity to solid boluses resulting in motor sequence consisting of reflexive saliva swallows/cough/gag/expectorate responses when attempting to swallow.
Richard had an adequate pharyngeal phase of the swallow with no nasal redirection or laryngeal penetration or aspiration.
Overall, [t]he swallow was dysfunctional with reductions in swallow efficiency related to the mastication and sensory challenges which are significantly restricting his activities and participation related to mealtimes. For example, due to these aforementioned factors, Richard’s cognitive resources are devoted to managing the motor and sensory challenges of the food and fluids, meaning he would have trouble following and contributing to group discissions around the dinner table.
[69] Exhibit 1, pages 261-263.
[70] Ibid.
[71] Ibid., page 262.
Ms Annesley and Ms Parish recommended Ms Bradley have a full diet, but continue with carbonated beverages, ‘as client reports improved sensory modulation with altered motor response with this sensory change’.[72] They further recommended that Mr Bradley trial ‘lateral placement of small (thumb-nail) solid bolus between the chewing surfaces’ and:[73]
Dysphagia rehabilitation through the National Disability Insurance Scheme, as Richard requires ongoing speech pathology and occupational therapy to address the following goals
o    Oral motor development of muscles of mastication,
o    Upgrading of meats and firm foods from minced/0.5cm particle size up to 1.5-2cm bite sizes,
o    Desensitization of the gag reflex,
o    Sensory processing assessment, and therapy to manage textural hypersensitivities.
o    Development of ability to tolerate brushing of the teeth, tongue, and gums in order to reduce the bacterial load of saliva and to minimize the risk of further incidences of aspiration pneumonia
These supports are reasonable and necessary due to Richard’s permanent impairment in oral preparation and sensory processing of firm foods as well as with certain tastes.
[72] Ibid.
[73] Ibid., pages 262-263.
Ms Annesley and Ms Parish did not give evidence at the Tribunal hearing.
Ms Sally Ireland – Speech Pathologist
On 28 September 2020, Mr Bradley attended on Ms Ireland and requested that she provide a report ‘to support a review of a review for NDIS funding’.[74] In a subsequent written report, Ms Ireland relevantly reported that:[75]
Richard’s lifelong Autism and Klinefelter’s related sensory difficulties have clearly impacted his ability to eat and drink in a way that his peers are able. Occupational therapist Anne [sic] Crane’s sensory assessment shows that Richard has sensory issues that are affecting many areas of his life. She places his sensory defensiveness in the severe category.
As a consequence, he can only drink carbonated fluids and is severely restricted in what he is able to chew and swallow due to these very severe sensory issues. This is not a choice made by Richard, it is the result of his severe sensory aversion disorder and is involuntary. Several speech pathologists have assessed his swallowing and they have all come to the same conclusions: that he has severe oral dysphagia which is significantly restricting his ability to participate in mealtimes. The severity of his involuntary, extensive coughing and expectorating places him at risk of aspiration pneumonia and is also socially unacceptable.
[74] Ibid., pages 231-234.
[75] Ibid., page 232.
Ms Ireland recommended that Mr Bradley receive funding for a speech pathologist to ‘work in a multidisciplinary way’ with Mr Anderson, Psychologist, ‘to support Richard’s communication needs.[76] Additionally, Ms Ireland recommended ‘[f]ull NDIS funding’ for the recommendations made by Ms Perkins, Speech Pathologist, and Mr Hann, Dietician, together with support from Mr Anderson and Ms Crane.[77] She also supported Mr Hann’s recommendation of ‘working with a chef, experienced in texture modification, in order for Richard to learn to prepare a better variety of meals that are suitable for his modified texture needs’, and noted that a ‘multidisciplinary approach is essential for there to be any real help for Richard in developing ways of managing his difficulty with eating and drinking’.[78]
[76] Ibid., page 233.
[77] Ibid.
[78] Ibid.
Ms Ireland did not give evidence at the Tribunal hearing.
Ms Karen Stevens – Speech Pathologist
On 27 September 2021, Ms Stevens provided a report documenting her evaluation of Mr Bradley’s ‘multi-factorial eating and swallowing difficulties, and to provide my professional opinion regarding his needs under the NDIS as they relate to these areas of difficulty’.[79] Ms Stevens concluded that Mr Bradley has ‘Severe Oral Phase Dysphagia, characterised by difficulty sustaining mastication of a bolus, and which is more pronounced with firmer food textures’.[80] Additionally, Ms Stevens reported that:[81]
Richard does not have full range of motion (ROM) of his tongue. Richard also has an extremely narrow oral cavity. This leaves little room to manipulate a food bolus, and is giving rise to a sensation of choking, resulting in regular vomiting up of undigested food particles. The presence of DCD (Developmental Coordination Disorder) is a significant contributory factor to the Oral/Oropharyngeal Phase Dysphagia, as confirmed on VFSS, which identified impaired motor sequencing and increased gag and expectoration reflexes. Evidence of Oropharyngeal Dysphagia is seen with nasal regurgitation of food particles, which Richard has reported to occur, and which have been confirmed by his Support Worker. This is indicative of poor closure of the soft palate as an additional physiological barrier to effective swallowing. The muscle weakness of his tongue and soft palate could additionally relate to his diagnosis of Klinefelter’s syndrome. This weakness was also confirmed by my swallow assessment, with Richard having an inefficient, low amplitude, and at times, incoordinated [sic], swallow reflux, all of which would affect his ability to effectively swallow a bolus. There is therefore evidence of a physiological basis for his swallowing difficulties, in addition to sensory and psychological factors identified previously.
…
There is evidence in the literature to support carbonation as improving the pharyngeal phase of the swallow, as well as having persistent effect in subsequent swallows.
…
Speech Pathology training in safe swallowing techniques, as well as building Richard’s ability to handle increased bolus size, while necessary and recommended, would not remove the requirement for carbonated beverages as they have also anecdotally reduced Richard’s frequency of aspiration. The purpose of the Annesley & Parish report was to detail the results of his VFSS, which clearly showed a dysfunctional swallow, but did not include a full oro-motor assessment. Finally, Richard’s stated need for meats to be texturised/“velveted”, is predominantly to assist with the formation of a bolus, and is commonly seen in individuals with Dysphagia, even without the muscle weakness complication of Klinefelter’s.
[79] Exhibit 2, pages 137-141.
[80] Ibid., page 138.
[81] Ibid., pages 138-139.
Ms Stevens also reported that Ms Bradley has significant sensory issues as a result of his ASD, which impact his chewing and swallowing, and severely limit his ability to manage a full range of textures and consistencies. She agreed that Mr Bradley’s diagnosed ‘Severe Oral Defensiveness’ and ‘Severe Smell Aversion’, together with ‘Sensory Seeking behaviours’, are all ‘relevant to his choice of foods’.[82] Ms Stevens also noted that Mr Bradley’s reported avoidance of certain textures and all non-food items such as plastic cutlery and toothbrushes due to making him ‘gag’ was ‘commonly seen in persons with ASD’.[83] Ms Stevens concluded that there are ‘three distinct reasons for, and manifestations of, Richard’s chewing and swallowing difficulties’, being the ‘muscle weakness of Klinefelter’s’, the ‘incoordination of DCD’ and the ‘sensory and cognitive/psychological features related to the ASD’, with resolution of his ‘swallowing process’ requiring all factors to be taken into account.[84]
[82] Ibid., page 139.
[83] Ibid.
[84] Ibid.
Ms Stevens recommended Mr Bradley receive specialised training in food preparation, physiotherapy, occupational therapy, speech pathology, support coordination and a support worker, psychology and capital supports.[85]
[85] Ibid., pages 140-141.
Following Ms Stevens’ assessment report of 27 September 2021, she provided an undated document in these proceedings, which she considered was prepared in or around February 2022, and noted that Mr Bradley had received 16 speech pathology sessions with her and a treatment plan had been developed to build ‘oromotor strength’ to allow for ‘more efficient mastication of fibrous foods’; commence “food challenges”, to ‘build sensory resilience, expand his range of foods, and allow him to practice the oromotor skills’; and ‘[d]evelop/implement changes to his eating routine so as to minimise fatigue and therefore reduce risk of aspiration’.[86] Ms Stevens recommended seeing Mr Bradley fortnightly for a 45 minute session, together with three hours report writing time, which equated to total speech pathology funding for 23.5 hours over a 12 month period.[87]
[86] Ibid., pages 192-193.
[87] Ibid., page 193.
On 5 August 2022, Ms Stevens provided a report following a Modified Barium Swallow (MBS or VFSS) assessment being performed on Mr Bradley.[88] The MBS was conducted using the following textures: straight barium in tap water, barium in carbonated water, marinated chicken piece, chocolate cake, savoury biscuit and marshmallow.[89] Ms Stevens concluded that:[90]
This MBS identified a disorganised oral phase of swallow, with Richard unable to form a cohesive bolus, and therefore prevent food and fluid residue from prematurely spilling over the base of tongue into the oropharynx. There is also evidence of oropharyngeal dysphagia, characterised by inefficient clearing of the residue post-swallow for all solid and fluid trials except for biscuit and carbonated water. This MBS therefore confirms my diagnosis of both oral phase and oropharyngeal dysphagia. Factors which may be contributing to this disorder include the moderate anterior tethering of Richard’s tongue, resulting in incomplete range of movement and therefore inability to efficiently manipulate a bolus; the presence of DCD, which gives rise to impaired motor sequencing and increased gag and expectoration reflexes; as well as possible oromotor weaknesses related to Klinefelter’s.
[88] Ibid., pages 312-313.
[89] Ibid., page 312.
[90] Ibid., page 313.
Ms Stevens gave evidence at the Tribunal hearing. She has been a speech pathologist since 1989, in hospital settings and in her own practice for over 20 years.
Ms Stevens agreed that there are four different phases of dysphagia and that an oro-motor assessment is one of the tools for assessing swallowing difficulties. Ms Stevens told the Tribunal her approach to assessing a person’s swallowing issues is to obtain a full case history, conduct an oro-motor assessment, and undertake a ‘complete swallowing assessment’, including ‘palpation of the swallow within the clinic’. If Ms Stevens is concerned or uncertain about any aspect of this assessment, she will refer a person for a Modified Barium Swallow study, but she tries not to do so ‘unless there is something that needs to be clarified’ due to their unpleasantness. Ms Stevens confirmed that, as far as she is aware, this is the best practice approach for speech pathologists.
In relation to an assessment of the risk of food or fluid being aspirated, Ms Stevens told the Tribunal that this was ‘part of the analysis of the swallow and palpating the swallow’ and observing how it passes through the various phases of the swallow.
Ms Stevens told the Tribunal she undertook an initial one hour face-to-face assessment of Mr Bradley and has seen him on ‘quite a large number of occasions’ since the initial assessment. She takes a verbal history from a patient and, if there are longstanding swallowing or other medical issues, will request reports to verify them, including specialist and doctor reports regarding diagnosis. Ms Stevens told the Tribunal that she understood Mr Bradley had longstanding diagnoses ‘from his report’ and those of other professionals, being Klinefelter’s Syndrome, ASD and DCD. She referred to there being ‘signs of incoordination from early on’, but no particular signs of swallowing dysfunction. Ms Stevens told the Tribunal her understanding from Mr Bradley’s reports was that he had experienced swallowing difficulties for ‘quite some time, quite a number of years’, and he had told her that he was always selective with the food he consumed and ‘in the last several years’ had a number of presentations to hospital with ‘query aspiration, certainly choking episodes’ and pneumonia, which is ‘a fairly common sign of aspiration’. Ms Stevens said she had ‘no idea’ whether the swallowing difficulties coincided with Mr Bradley’s admission to hospital for aspiration because she did not have the discharge summaries.
Counsel for the NDIA asked Ms Stevens what prompted Mr Bradley to seek her assessment. She told the Tribunal that he reported ‘longstanding difficulties with swallowing, choking and incomplete diet’ and wanted an assessment. Ms Stevens said that she had ‘no idea’ whether Mr Bradley had these issues as both a child and an adult; the information regarding Mr Bradley’s presentation as a child was ‘quite limited’. Ms Stevens further stated that she received a referral regarding Mr Bradley’s ‘swallowing difficulty’ and her job was to ‘evaluate that and make recommendations to try and help remediate’.
Ms Stevens was referred to her report dated 27 September 2021 and the statement that Mr Bradley ‘has Severe Oral Phase Dysphagia, characterised by difficulty sustaining mastication of a bolus’.[91] Counsel asked Ms Stevens where this ranked in the range of a person with dysphagia. She told the Tribunal it means ‘the oral phase dysfunction is sufficient to significantly interrupt smooth transition of the bolus through the oropharynx and safely into the gut’. Ms Stevens said that she applied the ‘dysphagia rating scale’ when making this assessment. She further told the Tribunal that the impact on a person with severe oral phase dysphagia in relation to their diet is that the oral phase of their swallowing difficulty is disordered or impacted in such a way that it ‘significantly detracts from their ability to manage and then transfer the bolus’. Ms Stevens noted that the severe oral phase dysphagia was originally mentioned in the VFSS report from 2020.[92] She told the Tribunal she reached the same conclusion.
[91] Ibid., pages 137-141.
[92] Exhibit 1, pages 261-263.
Ms Stevens told the Tribunal Mr Bradley has difficulty with mastication, or chewing, of a bolus to break down the fibres and transfer it to trigger the swallow reflex. She further said that Mr Bradley has a ‘weakness in his tongue movements’, ‘tethering of the tongue’ and DCD, therefore he has incoordination in his oral movements and fatigue can impact. As a result, ‘it is impossible to say’ what he could eat on any given day. Ms Stevens recommended a level four or five diet according to the IDDSI, being puree and ‘minced and moist’, although she also recommended ‘food trials’ to advance to ‘soft and bite sized’ foods. She told the Tribunal if such a diet was not followed by someone with severe oral phase dysphagia, weight loss would be ‘a factor’, although she understood ‘from report’ that Mr Bradley was ‘mainly’ following the recommended level four and five diet of pureed and minced foods and moist textures and would ‘occasionally’ try ‘something more than that’. Ms Stevens did not have the benefit of any food diaries provided by Mr Bradley to the dietician, Mr Hann.

As a result, the Tribunal accepts that Mr Bradley has swallowing difficulties, but finds that they arise from psychological and sensory-related issues, rather than severe dysphagia due to muscular or neurological dysfunction. This finding therefore determines the reasonable and necessary supports that Mr Bradley should receive under the NDIS to improve his functioning. As noted above, the NDIA’s contention was that reasonable and necessary supports would be 12 hours of dysphagia-specific speech therapy to improve the swallowing dysfunction and 10 hours of dietician support each year. The Tribunal, based on its above findings, accepts this submission. Ms Perkins recommended ongoing speech pathology intervention in relation to choking management strategies, a swallowing therapy program and liaison with other clinicians to ensure a holistic therapy provision.[409] On this latter point, she also strongly recommended referral and management of Mr Bradley’s mental health issues, including because his ‘oral sensitivities may fall more within the field of personality / preference and therefore acceptance-based therapy would be appropriate’.[410] This accords with Mr Anderson’s original view in 2020, together with Dr Grey, regarding the need for such therapy, which was omitted from later reports without explanation. To this end, a multi-disciplinary approach to treating Mr Bradley’s swallowing difficulties is preferable, involving assistance by an occupational therapist and psychologist to address his sensory aversions or sensory defensiveness, as referred to by Ms Crane and multiple other professionals. Therefore, the Tribunal is satisfied that the 58 hours of psychology and 34 hours of occupational therapy supports approved by the NDIA in the decision under review in application 2020/8122 are reasonable and necessary pursuant to section 34 of the NDIS Act. This includes four hours for the psychologist to liaise with both the occupational therapist and speech therapist to ensure a consistent approach in supporting Mr Bradley.
[409] Exhibit 3, page 137.
[410] Ibid.
In circumstances where the Tribunal has accepted Ms Perkins’ opinion regarding the nature and severity of Mr Bradley’s swallowing dysfunction, it finds that the requested supports to enable him to prepare and follow a diet which meets dysphagia guidelines and which responds to his sensory aversions are not reasonable and necessary, as required under section 34 of the NDIS Act. In this regard, the recommendations for Mr Bradley to undertake a dysphagia diet are based on it being unsafe for him to eat unmodified foods. However, according to Ms Perkins, there is no reason to recommend this diet to someone eating a relatively normal diet and at no risk of food aspiration. The Tribunal agrees with the NDIA’s submission that, in the absence of a clinical reason for food modification, the costs of such modification would not represent value for money or be effective and beneficial, as required by subsections 34(1)(c) and (d) of the NDIS Act, because such modification would seek to address a problem which, based on the weight of evidence, Mr Bradley does not have. To this end, the Tribunal also finds that the request for Mr Bradley to receive training from a chef to prepare food which meets his sensory aversions would not be value for money, because the support which is being funded by the NDIA seek to reduce those sensory aversions and broaden the range of food he can eat, which will assist Mr Bradley in the community as well as at home, not to reinforce his existing sensory issues. For example, Ms Stevens told the Tribunal that her sessions with Mr Bradley had worked to acclimatise his sensitivity to taste and texture, she noted his sensory issues and said there appeared to have been a ‘dampening down’ of these sensory sensitivities through her sessions. Additionally, and pleasingly, Ms Stevens further acknowledged that Mr Bradley had made ‘very positive gains’ through the speech therapy accessed under his NDIS plan and there was an increased range and textures of foods he can safely manage, together with a reduction in self-reported choking and hospital admissions.
Mr Anderson suggested that Mr Bradley’s sensory sensitivities are untreatable because they are a feature of his Klinefelter’s Syndrome.[411] However, the Tribunal does not accept this opinion, including for the reasons already set out above in this decision and the finding in relation to Mr Anderson’s evidence. Additionally, based on the available evidence, Mr Bradley does not have a lifelong history of the severity of difficulty with food and drink that he currently reports in these proceedings. Having regard to the weight of medical evidence before the Tribunal, Klinefelter’s Syndrome therefore likely does not explain Mr Bradley’s current sensory issues. Mr Anderson referred to evidence that disturbances in sensory perception as part of Klinefelter’s Syndrome is not treatable with testosterone therapy. However, as noted above, Mr Anderson did not comment on the omission from his subsequent reports of his previously recommended exposure therapy treatment for such a condition. This, coupled with ongoing speech pathology and re-engaging with psychology, appear most likely to result in a reduction in Mr Bradley’s sensory issues. In this regard, the Tribunal again notes the recently reported improvements detailed by Ms Stevens and set out above in these reasons.
[411] Exhibit 2, pages 232-255.
Furthermore, on the available evidence, there is no confirmed instance of aspiration of food, although Mr Bradley appears to have a fear of choking, together with his identified sensory issues. Based on the above reasons and the available evidence, the Tribunal is not satisfied that Mr Bradley has an abnormal risk of aspiration requiring monitoring by support workers, including while eating and sleeping. To this end, the Tribunal accepts the evidence of Ms Perkins that Mr Bradley’s risk of aspiration is no higher than anyone else’s risk. In this regard, the evidence was that everyone aspirates a certain amount of saliva at night and this is normal. As confirmed by Ms Perkins and Ms Stevens, there was no aspiration visible on the two VFSS studies conducted in 2020 and 2022 and there was no other evidence of any aspiration of food by Mr Bradley, including from the list of attendances at hospital emergency departments by Mr Bradley or the recent medical discharge notes; the latter stated that there was ‘nil aspiration’ and no evidence of aspiration pneumonia.[412]
[412] Exhibit 9.
As a result of all of the above, the Tribunal is not satisfied that any of Mr Bradley’s requested food and eating related supports meet the requisite criteria in section 34 of the NDIS Act to be considered reasonable and necessary, beyond those currently funded by the NDIA, being 12 hours of speech therapy and 10 hours of dietician advice. More specifically, based on the Tribunal’s findings, the Tribunal is not satisfied that the further supports represent ‘value for money’ relative to both the benefits achieved and the cost of alternative support and that they will be, or are likely to be, ‘effective and beneficial’ for Mr Bradley having regard to current good practice, as required by subsections 34(1)(c) and (d) of the NDIS Act.
Psychology and sensory related supports
The Tribunal turns to consider Mr Bradley’s requested psychological and sensory related supports, which are also set out in Annexure 1 to this decision.
Plainly, from the foregoing reasons, Mr Bradley continues to require the funding of psychological support under the NDIS. For the avoidance of doubt, the Tribunal is satisfied that psychological support for Mr Bradley is reasonable and necessary pursuant to section 34 of the NDIS Act and should continue to be included in the statement of participant supports in his NDIS plan.
In this regard, in the decision under review, dated 3 December 2020, the NDIA increased Mr Bradley’s funding to, effectively, 58 hours of psychology per annum.[413] That is, the NDIA accepted Mr Anderson’s recommendation from September 2020 for Mr Bradley to receive 52 hours of psychological counselling for ‘self-regulation and cognitive therapy supports’.[414] The NDIA also allowed an additional six hours for the psychologist to conduct joint sessions with the occupational therapist, speech therapist, dietician and specialist support co-ordinator.
[413] Exhibit 1, page 10.
[414] Ibid., page 212.
However, most relevantly for these proceedings, Mr Bradley told the Tribunal that he ceased regular psychological counselling sessions in 2020 and prioritised other therapies. Accordingly, Mr Bradley has seemingly not used the funding for psychological support he requested and received from the NDIA in his NDIS plan approved in December 2020. As the Tribunal has found, the weight of evidence indicates that there is a strong psychological component to Mr Bradley’s recent decline in functioning. Accordingly, the Tribunal considers that he would undoubtedly benefit from resuming that funded psychological support. Mr Anderson continues to recommend, and the NDIA continues to fund, 52 hours of counselling, although the allocation of that support is disputed.[415] In addition, Mr Anderson recommended 24 hours of psychological support for ‘mentorship’, which was not approved by the NDIA.[416] In his most recent substantive report of 7 December 2021, Mr Anderson refers to this mentoring support as ‘psychology sessions’ to build Mr Bradley’s ‘cognitive skills memory, concentration and other cognitive processes’ to improve his educational and employment capacity and also to address his social anxieties.[417] However, as set out above in these reasons, Mr Bradley’s cognition is in the average range; he has completed schooling and undertaking university studies. Additionally, in his Closing Submissions from February 2023, Mr Bradley stated that ‘RB withdraws 24 hours mentorship as recommended by Anderson due to Supports for Participants Rule 7.14’, which notes that the NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment.[418]
[415] Ibid., page 212; Exhibit 2, page 252.
[416] Exhibit 1, page 7-32.
[417] Exhibit 2, page 252. See also Exhibit 1, page 212.
[418] Applicant’s Closing Submissions dated 27 February 2023, page 91.
While this requested support was withdrawn by Mr Bradley after the close of the hearing, for the avoidance of doubt, and based on the evidence, the Tribunal is not satisfied that this requested support would be effective and beneficial, having regard to current good practice, as required under subsection 34(1)(d) of the NDIS Act or that it meets subsection 34(1)(f) of the NDIS Act, which requires that the support is most appropriately funded or provided through the NDIS and not more appropriately delivered through other general systems of service delivery or support. To this end, the Tribunal again notes Mr Bradley’s identification of rule 7.14 of the Supports Rules. Furthermore, Mr Bradley has been assessed as having general cognitive ability in the average range. His performance in the ‘Working Memory’ domain was in the ‘average range’; this included his ‘ability to sustain attention, concentrate, and exert mental control’.[419] There was no evidence that Mr Bradley has an impaired ‘work ethic’ and Mr Bradley did not make such a claim. Additionally, Mr Bradley’s social anxiety appears to be best addressed as part of the primary psychological counselling allocation of 52 hours, which has seemingly been left unutilised for many years.
[419] Exhibit 1, page 167.
For the reasons set out above, the Tribunal also finds that psychological counselling to ‘scaffold’ Mr Bradley’s relationship with his partner and build her capacity to provide dysphagia-related support is neither required nor reasonable and necessary under the NDIS Act; Mr Bradley does not require 24-hour support for dysphagia or choking. The Tribunal has found that there is no probative evidence that Mr Bradley requires 24-hour monitoring of the risk of aspiration or choking. To this end, Mr Anderson in his oral evidence said that he relied on Mr Bradley’s advice that such monitoring is required.[420]
[420] Exhibit 2, pages 218-219.
Turning to the thirteen assistive technology aids said by Mr Bradley to have been recommended for him by psychologists, eight were said to be memory or cognitive aids or to assist with his ‘cognitive fatigue’.[421] However, as set out above in these reasons, Mr Bradley’s cognitive functioning, including his memory, has been found to be in the average range. Additionally, some aids, such as noise cancelling headphones and an ergonomic mouse, may be funded from Mr Bradley’s existing core supports funding of $8,126.20 in his NDIS plan. Furthermore, there was no evidence of the efficacy or value for money of the requested ‘stress reduction assistive technology’, such as aromatherapy and ‘massage devices’, in the amount of $2,000. Also, while there is some evidence that the requested RGB lighting for ‘emotional regulation’ is effective for children, there was no evidence that it is current good practice or value for money in Mr Bradley’s circumstances. Finally, Mr Bradley requested a ‘Paul Ekman Library Package’ in ‘micro-expression training’. Again, there was no evidence before the Tribunal of its efficacy or value other than Mr Bradley’s report that he has ‘anecdotally reported…he identifies more emotions than before, but has forgotten many over time’.[422] This limited evidence is insufficient for the Tribunal to be satisfied that any of these requested supports meet all of the requisite criteria in section 34 of the NDIS Act to be found to be reasonable and necessary supports for Mr Bradley.
[421] Exhibit 8; Exhibit 2, pages 220-224 and 238.
[422] Exhibit 2, page 238.
Mr Bradley also requested NDIA funding for unspecified ‘thermoregulation aids’ and a weighted blanket, despite there being no medical reports recommending them. It is open to Mr Bradley to use his existing NDIS assistive technology budget to purchase a weighted blanket for emotional regulation. Mr Bradley also requested funding support for clothing and clothing alterations, including due to sensory aversion to seams and motor difficulties with buttons and zips. However, there was no evidence before the Tribunal that such clothes are more expensive than any other clothing. Again, the Tribunal is not satisfied that these requested supports meet all of the requisite criteria in section 34 of the NDIS Act to be found to be reasonable and necessary supports for Mr Bradley.
Having considered all of the available evidence, the Tribunal is satisfied that the currently funded supports for Mr Bradley are reasonable and necessary, being 23 hours of speech therapy for speech and communication, 58 hours of psychology and $1,240 for assistive technology. In that regard, and for the reasons set out above, the Tribunal is not satisfied that any of the additionally requested supports meet all of the criteria in section 34 of the NDIS Act to be found to be reasonable and necessary.
Support co-ordination
The request for support co-ordination funding was contained in the document prepared by Mr Bradley in April 2022, containing the list of his 107 requested supports.[423] This list was provided to the Tribunal in these proceedings, and support co-ordination funding was not considered in the NDIA’s decision the subject of the initial Tribunal application.[424] Mr Bradley sought 209 annual hours of support co-ordination at level three, comprising the following:[425]
(a)24 hours to facilitate ‘Complex Needs Care conferences’;
(b)24 hours for quarterly reporting;
(c)2 hours weekly to assist Mr Bradley in achieving goals and assisting with plan implementation;
(d)24 hours for ‘capacity Building applicants’ [sic] knowledge of the NDIS’;
(e)21 hours for ‘Annual NDIS Plan review due to complex support needs’; and
(f)12 hours for ‘SDA Eligibility Assessment requirements’.
[423] Exhibit 8.
[424] Exhibit 1, pages 7-32.
[425] Exhibit 8.
The NDIA describes level three support co-ordination as being for people ‘whose situations are more complex and who need specialist support’ to ‘manage challenges’ in a participant’s ‘support environment’ and to ensure ‘consistent delivery of service’.[426] The second level of support co-ordination is said to:[427]
assist you to build the skills you need to understand and use your plan. A support coordinator will work with you to ensure a mix of supports are used to increase your capacity to maintain relationships, manage service delivery tasks, live more independently and be included in your community.
[426] accessed on 31 May 2023.
[427] Ibid.
The NDIA contended that 30 hours of level three support co-ordination and 20 hours of level two support co-ordination was reasonable and necessary.
There was no corroborating evidence before the Tribunal to support Mr Bradley’s request in relation to support co-ordination for his NDIS plan. The Tribunal therefore cannot be satisfied that Mr Bradley’s requested amount of level three support co-ordination meets all of the criteria under section 34 of the NDIS Act. Accordingly, and based on the Tribunal’s above findings in relation to the other requested supports, the Tribunal is satisfied that an annual allocation of 30 hours of level 3 support co-ordination and 20 hours of level 2 support coordination for Mr Bradley, is reasonable and necessary pursuant to section 34 of the NDIS Act.
Other supports
As requested by Mr Bradley, the Tribunal has made a confidentiality order under section 35 of the AAT Act that the part of the Tribunal’s written reasons (and evidence or information lodged with the Tribunal) related to certain other requested supports be prohibited from publication or other disclosure, except to the parties themselves and Members and staff of the Tribunal as required for these proceedings, due to the confidential nature of that information. In this regard, the Tribunal notes that subsection 4(10) of the NDIS Act provides that one of the general principles guiding actions under that legislative instrument is that people with disability should have their privacy and dignity respected.
For completeness, the Tribunal also notes that, as requested by Mr Bradley, the Tribunal has not referred to his partner or step-son by name or their specific diagnoses.[428]
[428] Exhibit 1, page 648.
The Tribunal considers and makes findings in relation to those other requested supports in a confidential section of its reasons, published to the parties concurrently to these open reasons, but confirms that they do not disturb the Tribunal’s overall decision to affirm the reviewable decision in application 2020/8122.
CONCLUSION
Having considered and weighed all of the evidence before the Tribunal, the requested supports that were in dispute in these proceedings do not, as a result of the Tribunal’s findings, meet the requisite criteria to be approved as ‘reasonable and necessary’ under the NDIS Act for inclusion in the statement of participant supports in Mr Bradley’s NDIS plan. The Tribunal will therefore affirm the decision under review in application 2020/8122.
For the avoidance of doubt, while the Tribunal has considered each of Mr Bradley’s 107 specific requested supports, it has also considered the overall nature of those supports and their interaction with each other, under the above groupings as they relate to Mr Bradley, to determine whether they meet the criteria in section 34 of the NDIS Act. This approach is consistent with that outlined by the Tribunal in MMBX and National Disability Insurance Scheme [2022] AATA 13 at [102], which stated that ‘it is this broader conception of the support which should be considered when deciding whether what is proposed meets the funding criteria in section 34 or falls foul or any statutory prohibition’. When viewed collectively in their applicable groupings as described above, the Tribunal is not satisfied, based on the totality of the evidence and findings in these proceedings, that any of the requested supports are reasonably necessary for Mr Bradley above those already funded by the NDIA.

In Tribunal application 2021/0352, Mr Bradley sought review of the NDIA’s decision to uphold the deemed refusal to review his NDIS plan from December 2020. The NDIA contended that there would be no utility in the Tribunal ordering a review of Mr Bradley’s NDIS plan following the Tribunal’s own review of the decision regarding reasonable and necessary supports to be funded by the NDIA. It therefore submitted that this later Tribunal application made by Mr Bradley should be dismissed under section 42B of the AAT Act, which provides that the Tribunal may dismiss an application if satisfied that it is ‘frivolous, vexatious, misconceived or lacking in substance’, because the application would be futile or have no practical benefit. Mr Bradley, in his Closing Submissions, agreed to the dismissal of application 2021/0352. Accordingly, pursuant to subsection 42B(1) of the AAT Act, the Tribunal will dismiss this application because it is satisfied that, in light of these proceedings, the application has become ‘frivolous, vexatious, misconceived or lacking in substance’.
DECISION
The Tribunal affirms the decision under review in application 2020/8122, pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
The Tribunal dismisses application 2021/0352 pursuant to subsection 42B(1) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 358 (three hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

.........................[SGD]...............................................
Associate
Dated: 29 June 2023

Date(s) of hearing:

18, 19 and 21 October 2022 and 29-30 November 2022

Date final submissions received:

Applicant:

27 February 2023

By Microsoft Teams

Counsel for Respondent:

Ms Sarah Varney

Solicitor for Respondent:

Mr Oliver Young, Australian Government Solicitor

Annexure 1 – Supports requested by Mr Bradley[429]
[429] See also Exhibit 8.
Complex support needs participant and Klinefelter’s Syndrome as primary diagnosis (#1)
Self-management and related supports (#2 and 102)
Mobility and movement supports

Support workers at high intensity rate – for study, travel to therapy, self-care, respite, recreation (#20)

Entry fees for support workers (#21)

Educational support – transport assistance and support worker attendance (#106)

Occupational therapy (42.5 hours) (#11)

Physiotherapy (139 hours) (#9)

Physical activity program (13 hours) (#10)

Podiatry, orthotics and shoes (#19, 73, 103, 104)

Personal transport costs (#30)

Transport for service providers (#31)

Social activities ($13,000) (#32)

Camping gear (#105)

Facial grooming – barber (#23)

Grooming - Laser hair removal (#24)

“AT additional hours” (#12)

Additional electricity usage for assistive technology (#107)

Chair, bed (#57, 58)

Dishwasher (#59)

Ergonomic bath (#66)

Showering and toileting aids (#67, 69)

Clothes airer (#70)

Self-hygiene aids (#71)

Fine motor aids (#72)

Respite 21 days with two support workers; 22 days Saturday respite at 1:1 (#22)

Mobility assistance animal (#25)

Gardening – 20 lawn mowing sessions, 6 other maintenance sessions (#26)

Cleaning – 1.5 hours fortnightly (#27)

Pest control (#28)

Co-payment on additional rental costs (#4)

Specialist Disability Accommodation (#3)

Vehicle purchase costs (#5)

Moving assistance (#29)

Food and eating related supports

Speech therapy (30 hours) (#13a)

Speech therapy – social and communication (62 hours) (#14)

Low Cost Low Risk assistive technology (#74)

ASD dietician (36 hours) (#15)

Dysphagia dietician (20 hours) (#16)

Chef consultancy (#13b)

Food and fluid co-payment (#13biii)

Co-payment for swallowing needs – increased food costs, fluids, medications (#18)

Nutritional care – supplements and carbonated beverages (#17)

Food preparation and cooking aids, such as a Vitamix, KitchenAid accessories/attachments and a ricer (#47–51, 54–56)

Crockery and bakeware, such as thermal plates and plastic crockery and cookware (#52–53, 62–64)

BBQ and accessories, totalling $3,149 (#60)

Upright Fridge Freezer (#61)

Airfryer (#98)

Other food preparation aids, such as a mortar and pestle, whiskey rock set, silicone egg ring sets, ergonomic fish bone tweezers, a wok, a blowtorch, sandwich press, bamboo steamer and bean slicer (#75–97)

Food storage (#99)

Psychology and sensory-related supports

Various therapies 118 hours (#6)

Psychologist–recommended assistive technology:

noise cancelling headphones (#33);

tracking devices (#34);

fluorescent keys (#35);

dark board (#36);

‘cognitive aids’ (various - #37);

ergonomic mouse (#38);

mechanical keyboard (#39);

flicker free monitor (#40);

noise reduction computer case (#41);

visual aids – unspecified (#42);

memory aids – unspecified (#43);

stress reduction devices (#44);

RGB lighting (#45) (over $10,000; not fully costed);

Micro-expression training app (USD299) (#46).

Clothing alterations and replenishment budget (#65)

Thermoregulation aids (#68)

Weighted blanket (#100)

Support co-ordination (#101)
Other supports subject to a confidentiality order (#7 and #8)

Date(s) of hearing:	18, 19 and 21 October 2022 and 29-30 November 2022
Date final submissions received: Applicant:	27 February 2023 By Microsoft Teams
Counsel for Respondent:	Ms Sarah Varney
Solicitor for Respondent:	Mr Oliver Young, Australian Government Solicitor