CBLG and CEO, National Disability Insurance Agency (NDIS)

CBLG and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1956 (30 September 2025)
Applicant/s:  CBLG
Respondent:  CEO, National Disability Insurance Agency (NDIS)
Tribunal Number:                2024/0298

Tribunal:General Member N Purcell
Place:Sydney
Date:30 September 2025

Decision:The Tribunal, pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) sets aside the decision under review and remits the matter for reconsideration in accordance with the following orders:
1. The following supports are reasonable and necessary pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) and should replace existing supports in the same category:
a.    4 hours of support worker assistance per weekday at the complex and intense rate at a 1:1 ratio x 48 weeks for assistance with daily living (ADL).
b.    15 hours of support worker assistance per week at the complex and intense rate at a 1:1 ratio x 48 weeks for social and community participation (SECP).
c.     8 hours of support worker assistance each Saturday and Sunday at the complex and intense rate at a 1:1 ratio x 48 weeks comprising:
i.3 hours of ADL
ii.5 hours of SECP

d. 28 days of STA per annum at 1:1 ratio including:
i.20 days at weekday rate
ii.4 days at Saturday rate
iii.4 days at Sunday rate

e. 68 hours of speech therapy per annum comprising:
i.52 hours for weekly sessions
ii.8 hours for developing and delivering AAC resources and training to parents, support workers and/or other therapists
iii.8 hours for quarterly meetings with psychologist, OT, parents (and ideally school)

f. 34 hours of psychology per annum comprising:
i.26 hours for fortnightly sessions
ii.8 hours for quarterly meetings (as above)

g. 34 hours of OT comprising:
i.26 hours of fortnightly sessions
ii.8 hours for quarterly meetings (as above)

h.    12 hours of dietician support per annum
i.   LAMP or Proloquo Augmented and Assisted Communication (AAC) application (subject to the provision of a quote)
j.   5 hours for Continence Nurse Assessment
k.     6 hours of podiatry per annum
l.   100 hours of Specialist Support Coordination (level 3) per annum.

2.    The following supports are not reasonable and necessary pursuant to section 34 of the NDIS Act and should be removed from the Applicant’s SOPS:
a.    Exercise physiology
b.    Positive Behaviour Support
c.     3 hours cleaning support each week

3. All other supports in the Applicant’s SOPS dated 19 May 2025 excepting any one-off assistive technology supports already used, are to be replicated pro-rata from the date on which the supports specified above are included in the Applicant's SOPS.
4. The Applicant’s Mother’s request to be a paid support is declined.
5. The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same as the management of funding for those supports as specified in the SOPS dated 19 May 2025.
6. The plan should be re-assessed 12 months after the supports specified above are included in the Applicant’s SOPS.

....................[SGD]....................................................
General Member N Purcell
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – Transitional Supports Rules – severe intellectual disability and associated impairments – new impairment manifesting as severe emotional dysregulation – issue of permanency of new impairment and section 34(1)(aa) – Risperidone treatment – risk of sexual abuse – request for parents to be paid supports – ratios of support – significant overutilisation contrary to section 46 – concerns about evidence of treating allied health practitioners.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
McGarrigle and National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
SMNL and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1512.
TZPQ and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 839
SECONDARY MATERIALS
Operational Guidelines – Reasonable and Necessary supports, 28 March 2025.
Operational Guideline – Including Specific Types of Supports in Plans – Sustaining informal supports, 2 December 2024
Statement of Reasons
INTRODUCTION

The Applicant is a 13 year old boy who will shortly turn 14. He lives with his parents and 3 younger siblings, aged 4, 5 and 8. The family are originally from Melbourne but moved to a Gold Coast suburb in 2023. The Applicant lives with a severe intellectual disability and has been diagnosed with several other conditions including autism spectrum disorder (ASD) and attention deficit hyperactive disorder (ADHD). He experienced epileptic seizures as a younger child and was initially granted access to the scheme based on microcephaly which is a rare neurological condition characterised by a smaller head and associated developmental delay. He is physically small for his age.
The Applicant’s two younger sisters recently became NDIS participants via the early intervention pathways because of concerns regarding developmental delay. The 5 year old sister is receiving psychology and speech supports and the 4 year old sister is receiving speech and OT interventions. These therapies are provided during school hours.[1] Both sisters receive 5 or less hours of support worker assistance per week.[2]
[1] Transcript Day 1, p132.
[2] Transcript Day 2, p7.
The Applicant is largely non-verbal, with profoundly delayed receptive language skills. He attends a special school with three other children in his class and is assisted by an education support worker (teacher aide). He experiences regular emotional ‘meltdowns’ involving several behaviours of concerns such as biting his knees, pinching, hitting his head, refusing to move, kicking, and spitting. The Applicant can be impulsive and requires supervision.
The Applicant’s mother represented him in these proceedings and sought a range of additional supports which are outlined below. The Respondent estimates the value of the requested supports at approximately $1.6 million for a 12-month period.
The Tribunal had the pleasure of briefly meeting the Applicant who was observed to be wonderfully friendly and inquisitive. It is clear he cannot comprehend notions of paid support, let alone Tribunal proceedings taken in his name. For this reason, the Tribunal will largely refer to the Mother, rather than the Applicant, to make a clear distinction between the child representative and the participant.
DECISIONS UNDER REVIEW
On 17 October 2023, a delegate on behalf of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent) approved a statement of participant supports (SOPS) for the Applicant under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The same day, the Applicant’s Mother sought internal review of the original decision pursuant to section 100(2) of the NDIS Act. On 20 December 2023, another delegate of the Respondent confirmed the original decision under section 100(6) of the NDIS Act (reviewable decision).
On 15 January 2024, the Applicant’s Mother filed an application seeking external review by the Administrative Appeals Tribunal (AAT) pursuant to section 103 of the NDIS Act. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, CBLG’s application was automatically transferred to the ART.[3]
[3] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
The Respondent approved several subsequent SOPS, the most recent of which was dated 19 May 2025 (Current Plan). Pursuant to section 103(2)(e) of the NDIS Act, the Applicant’s application for external review by this Tribunal is also taken to be a review of the decision to approve the SOPS in the current plan.
Background
On 17 October 2023, the Respondent approved funding for a 12-month period in the Applicant’s SOPS. The Mother utilised the Applicant’s funds in approximately 6 months. On 2 April 2024, a new SOPS was approved for a 12-month period however these funds were exhausted within about 4 months. On 13 August 2024, a third SOPS was approved for an intended 12 months. These funds were exhausted within about 3 months. On 18 November 2024, a fourth SOPS was approved. The funds were spent within approximately 4 months. On 17 March 2025 a fifth SOPS was approved – this time for a period of 6 months. Funds were spent in approximately 2 months, leading to a sixth SOPS being approved on 19 May 2025 for a 3 month period.[4] In addition to exhausting funds at a faster rate than permitted by the various plans, the Mother also overutilized almost $15,000 during this same period.
[4] A12 of JHB3, p267. See also Respondent’s Further Submissions dated 21 July 2025.
Section 46 of the NDIS Act requires NDIS funding to be spent in accordance with the plan.
The Mother contends she overutilized the Applicant’s NDIS funds to keep him safe. The Tribunal will discuss this issue in more detail below.
The following supports were approved as reasonable and necessary on a pro-rata basis in the plan dated 19 May 2025:
(a)Assistance with daily living activities at the High Intensity Rate with 1:1 ratio comprising:
(i)20 hours per week at the weekday rate (48 weeks per year)
(ii)4 hours per week at the Saturday rate (52 weeks per year)
(iii)4 hours per week at the Sunday rate (52 weeks per year)
(b)Assistance with Social, Community and Economic Participation at the high intensity rate with 1:1 ratio comprising:
(i)4 hours per week at the Saturday rate (52 weeks per year)
(ii)4 hours per week at the Sunday rate (52 weeks per year)
(c)3 hours per week for Assistance with Personal Domestic Activities (cleaning) (48 weeks per year)
(d)Short Term Accommodation (STA) for 28 days per year at 1:1 ratio weekday rate
(e)Consumables funding, comprising:
(i)$1500 for the purchase of orthotics and wearable technology
(ii)$4452 for continence products
(iii)$150 for other consumables
(f)Specialist Behaviour Support comprising:
(i)90 hours for specialist behaviour support
(ii)30 hours for behaviour management plan and training
(g)52 hours of Occupational Therapy (OT) over 12 months
(h)52 hours of Speech Therapy over 12 months
(i)12 hours of Dietician over 12 months
(j)26 hours of Psychology over 12 months
(k)16 hours of Exercise Physiology over 12 months
The parties also agreed to the following supports prior to hearing:
(l)5 hours for Continence Nurse Assessment over 12 months
(m)6 hours of podiatry over 12 months
(n)LAMP or Proloquo Augmented and Assisted Communication (AAC) application (subject to the provision of a quote)
(o)100 hours of Specialist Support Coordination (level 3) over 12 months.[5]
[5] JHB3, p267-268 and Respondent’s supplementary hearing bundle, p1.
Issues in Dispute
The Mother seeks the following additional supports on behalf of the Applicant:
(a)Recognition of epilepsy as a secondary disability.
(b)The Mother be paid to provide support.
(c)Support worker assistance including 2:1 ratio during all non-school hours and a 1:1 ratio at night.
(d)2 hours of key worker assistance per day
(e)234 hours of Special Behaviour Support per year (additional 144 hours)
(f)184 hours of OT per year (additional 132 hours)
(g)220 hours of Speech therapy per year (additional 168 hours)
(h)110 hours of Exercise Physiology or Physiotherapy per year
(i)STA at 2:1 ratio for the 28 days (20 days of weekdays and 8 days weekend rate)
(j)154 hours of Allied Health Assistant per year
(k)52 hours for Social Groups per year
(l)48 hours of Music Therapy per year
(m)52 hours of Psychology per year
(n)Nova Rugged – Liberator device totalling approximately $7000 – $8000
(o)Sensory necklaces totalling $822.72 per year
(p)Sustagen Hospital Formula totalling $1,455.00 per year
(q)Other Assistive Technology totalling $500 per year
(r)Car seat x 2 (Carrot 300) totalling approximately $6000 - $7000
(s)Volkswagen Caravelle Van
At hearing, the Mother withdrew her request for an additional 22 hours of dietician support. She also withdrew her request for meal preparation and a tricycle.
A consistent theme throughout the hearing was the family’s financial difficulties. The Mother was observed to attribute much of the blame to the Respondent, suggesting it was the Applicant’s disability combined with insufficient levels of NDIS support that that led to the family’s financial situation.
I also need to start work now as it’s not feasible for me to stay home and support [the Applicant] full-time, unpaid, nor has it ever been. Me being home unpaid all these years and having to have to call my husband home from our family business to help me many times with [the Applicant] led to him not being able to run his business properly; this led to financial distress; we have lost everything, our once very successful family business (restaurant) of over 30 years, our house that was once paid off, and even our cars were repossessed. My husband will go bankrupt within the next three months or so. My husband is such a hard worker; it’s so sad that all his hard work has come to nothing due to being extremely under-supported.[6]
[6] A102 of JHB2, p580.
A far more complex picture of the family’s financial difficulties developed over the course of the hearing.
The family operated a Melbourne restaurant for many years and then took over a second restaurant in Shepparton in November/December 2020. Despite the COVID lockdowns during that period, the Father indicated sales at the Shepparton restaurant increased because of contracts with local hospitals. However, his 300-seat Melbourne restaurant, which had turned over $45,000 per week prior to COVID, dropped to around $16-17,000 per week.[7] The Father acknowledged, “It was just a snowball effect. It’s not just one particular item why things went bad in Melbourne”.[8] The Tribunal observes the family had their fourth child during the same period.
[7] Transcript Day 1, p67.
[8] Transcript Day 1, p68.
The Mother told the Tribunal it was embarrassing to have lost everything in Melbourne and her Audi SQ7 was re-possessed.[9] She indicated the Father owed money to suppliers with potential links to the underworld – “people started standing over us… like I’m scared”.[10] The parents gave evidence they currently operate two take-away pizza shops on the Gold Coast.[11]
[9] Transcript Day 1, p51 and 70.
[10] Transcript Day 1, p71.
[11] Transcript Day 1, p55-57.
On 20 May 2025, the Mother sent an email to the Tribunal and the Respondent’s solicitor attaching images from the Australian Taxation Office (ATO) regarding the family’s taxation affairs. A letter dated 5 May 2025 from the ATO demanded payment from the Mother for $126,000 of director penalties regarding unpaid GST, PAYG withholdings and director penalties in relation to unpaid superannuation guarantee.[12] The other document dated 7 January 2025 showed the Family Trust owed $343,000 in unpaid superannuation guarantee.[13] In her email, the Mother asked the Respondent’s solicitor to write to the ATO admitting negligence. She proposed the NDIS to pay the $469,000 debt owing.
[12] E3(ii).
[13] E3(i).
The Mother previously had to repay a Centrelink debt of $30,000, though it is unclear how long ago this was incurred.[14]
[14] Transcript Day 1, p61-62.
The Tribunal observes that for the most part, the Mother’s preoccupation with financial difficulties was largely irrelevant and distracting to the matters to be decided. The Tribunal accepts that having four children – including one with high support needs, makes life more difficult particularly when a business fails.
The hearing
The Mother told the Tribunal she has received multiple appointments with a lawyer from Legal Aid QLD prior to hearing, including assistance to prepare her opening submissions. She was unrepresented at hearing.
The Respondent was represented by Dr Michael Taylor of Counsel and instructed by Moray and Agnew lawyers.
The hearing was conducted by video over 6 days. The following witnesses gave oral evidence at the hearing on behalf of the Applicant:
(a)the Applicant’s Mother
(b)the Applicant’s Father
(c)Ms Mikaela Field - speech / feeding therapist
(d)Ms Sarah Hazell - psychologist
(e)Mr Jacob Bryant – physiotherapist
(f)Ms Peta Starr – support worker
(g)Ms KO – residential complex manager
(h)Dr Kasia Lewandowska – psychiatry registrar and family friend
(i)Dr Joanne Lawrence – paediatrician and Mother’s friend
(j)Ms Crystal Cope – speech therapist
(k)Ms Emma Middlebrook – occupational therapist (OT)
(l)Ms Tenarra Campey – behaviour support practitioner
(m)Ms Laura Taylor – support worker
The parents were permitted to give their evidence together, with the Mother providing most of the evidence and the Father giving emotional support to his wife and clarifying certain matters along the way. The Father was unable to be present for the entire hearing.
The Respondent engaged two independent experts to conduct assessments and give oral evidence at the hearing – paediatrician, Dr David Pincus and OT, Ms Karli Rutherford.
Following Dr Pincus’ evidence, the Tribunal requested one of the Applicant’s treating paediatricians, Dr Glenn Harte give evidence. The hearing was adjourned for a week to hear evidence from him and support worker Ms Taylor. To accommodate Tribunal and Counsel availability, the hearing was then adjourned for approximately one month for closing submissions.
In arriving at its decision, the Tribunal has considered all the written evidence provided in the ‘T-documents’, the three joint hearing bundles,[15] the Respondent’s supplementary hearing bundle,[16] the Respondent’s further written submission dated 21 July 2025 and the oral evidence given at the hearing. The following documents were also admitted into evidence:
[15] Admitted and marked JHB1, JHB2 and JHB3.
[16] Admitted and marked RHB4.
(a)E1 – Applicant’s Statement of Facts, Issues and contentions (SOFIC) dated 13 June 2025
(b)E2 – Centrelink documents indicating an estimated combined family income of $274,300 per annum as of 1 July 2025:
(i)First page
(ii)Second page
(iii)Third page
(iv)Fourth page
(v)Fifth page
(vi)Sixth page
(c)E3 – Australian Tax Office (ATO) documents:
(i)Overdue payment notice of $343,173.54Trustee for [Family] Trust, dated 7 January 2025, pages 1 and 2.
(ii)Debt notice of $126,678.70 owed personally by the Mother, dated 5 May 2025, pages 1 and 2.
(d)E4 – Applicant’s written opening submissions (undated, prepared with assistance of a Legal Aid lawyer)
(e)E5 – Undated letter from Ms Kimberly Russell (mother of child who the Applicant’s mother supports)
(f)E6 – Email from Mother to the Respondent and Tribunal dated 12 May 2025
(g)E7 – Transcripts Day 1 – 5

The Tribunal will refer to the evidence that is directly relevant to the determination of this matter, including an assessment of the weight that should be given to the evidence.
While the Tribunal’s findings are made under sub-headings throughout the body of the decision, the findings are based on consideration of all the evidence. For reasons of brevity and clarity, not every piece of evidence is referenced immediately prior to each finding. It is inevitable that references to certain evidence appear in later sections of the decision, often in relation to another issue and/or in support of another finding.
Role of the Tribunal
In reviewing the decision:
(a)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[17] and
[17] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
(b)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[18]
[18] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
RELEVANT LAW
An overview of the relevant law has been set out at Annexure A and should be read in conjunction with the reasons for decision.
EVIDENCE
REQUEST FOR THERAPY / CAPACITY BUILDING HOURS
Prior to hearing, the Tribunal calculated the number of capacity building / allied health or ‘therapy hours’ sought by the Applicant’s mother:
(a)234 hours of positive behaviour support
(b)184 hours of OT
(c)220 hours of speech
(d)110 hours of exercise physiology / physiotherapy
(e)154 hours of allied health assistant
(f)52 hours of social group
(g)48 hours of music therapy
(h)52 hours of psychology
(i)10 hours of dietician
The requested hours total 1064 hours per year.
Putting aside 154 hours for an allied health assistant, which the Mother’s evidence suggests was primarily intended for developing resources, and 52 hours for a social group, which is more properly conceived as social and community participation,[19] the requested ‘therapy hours’ total 858 hours per year. Noting the Respondent had agreed to fund 4 weeks of STA/respite, the Tribunal inferred that 858 hours would be used over the remaining 48 weeks of the year. This equates to almost 18 hours per week or approximately 3.5 hours per weekday.
[19] The Tribunal observes that no details of the intended program or quote was provided.
The Tribunal explained the hearing process to the Applicant’s mother including the Tribunal’s powers to decide what supports should or should not be included in the Applicant’s SOPS in accordance with the legislative criteria. Following opening submissions from both parties, the Tribunal raised concerns that the calculation of therapy hours tended to suggest that the Mother’s proposal was likely unworkable and/or impractical for a boy with a severe intellectual disability who is attending school between 8:30 and 2:30pm each day. As the mother was not legally represented, the Tribunal stood the matter down for approximately 30 minutes to allow the parties one final opportunity to reach agreement on the priority therapies to be included in the Applicant’s SOPS. After the adjournment, the Mother indicated she did not accept the Respondent’s offer in respect of any of the therapies in dispute and wished to proceed with her application in its entirety.
At the conclusion of the 4^th day of evidence, the Mother told the Tribunal the following:
I will also say to you that the reason behind me wanting to get so much support as well, like my motive behind it was – I don’t want him to do all these therapies, but I was just concerned that he wouldn’t get much. So, I’m just like, I want to get a lot for him so that at least he has the best opportunity to develop.
…
Like, I want to be open and honest, but I don’t, I don’t want it to be used against me that he doesn’t need it anymore, if that makes sense.[20]
[20] Transcript Day 4, p 101-102.
During the hearing, the Tribunal observed the Mother struggle to articulate how the hours of therapy would work in practice – when appointments would be scheduled and how strategies would be implemented. She indicated the psychologist and feeding speech therapist could speak with the Applicant for about 15 minutes once per month. She stated, “I need a lot of help in the background, like when [the Applicant] is not there”, suggesting a significant portion of the requested hours would be utilised for parental coaching purposes. She added:
The problem with [the Applicant], Member, is that he doesn’t comprehend what people say, so – You can’t understand him unless you meet him. A lot of the times, if we’re not there, then it’s going to be pointless having anybody dealing with him at all.[21]
[21] Transcript Day 1, p38
When Counsel asked how many hours of training the Mother had received from the Behaviour Support Practitioner, Ms Campie, she replied:
Well, you’ve seen how much she’s – you’ve seen how many hours she’s put through. So as many hours as she’s put through, she’s – I’ve received training, or it’s gone into her writing letters. And it’s been a lot. It’s been extensive.[22]
[22] Transcript Day 1, p80.
Given the nature of the Applicant’s disability, the Tribunal accepts that parental coaching is an important part of the therapeutic approach for working with the Applicant. Unfortunately, there was limited evidence that the therapists and parents have prioritised this strategy to date.
The Mother confirmed she had spent significant amounts of time (and therefore the Applicant’s NDIS funds) obtaining reports for these proceedings and shared the reports across the treating practitioner group. She also indicated during her questioning of witnesses that she had provided them with a copy of Dr Pincus’ report and told them Dr Pincus had advised her to ‘forget about the Applicant’ and focus on her other children.[23]
[23] For example, Transcript Day 1, p107, Transcript Day 2, p96 and p110 and Transcript Day 3, p51.
The Tribunal finds that the Mother exaggerated the need for therapy hours despite knowing the hours could not be properly utilised in a 12 month period, even allowing for significant amounts of parental coaching. This, along with inconsistencies in her evidence and her interpretation of certain evidence, undermined her credibility and reliability in these proceedings. It also made the task of deciphering the Mother’s position on certain issues more complicated, as her evidence and position was observed to change repeatedly over the course of the hearing, both in relation to capacity building supports and support worker assistance.
Issues of Safety and Risk
At the outset, the Tribunal wishes to address the issue of the Applicant’s safety which was raised repeatedly by the Mother and many of the treating practitioners. It should go without saying that the Tribunal considers participant safety a matter of the upmost importance, particularly in applications involving child participants who live with severe intellectual disability. Volumes 3 and 10 of the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability outline the nature and extent of violence, abuse, neglect and exploitation faced by people with disability as well as risks associated with the provision of supports by some service providers, particularly to those with intellectual or cognitive disability.[24] The Tribunal readily accepts the submissions from both parties that the Applicant’s disability places him in a category of participants who are at greater risk of violence, abuse, neglect and/or exploitation.
[24]
The Mother raised several claims about the Applicant’s physical safety in and around the rental property where they live, including:
·Falling down the stairs
·Risk of absconding, including when transferring to and from the car at home
·Turning on stove hot plates
·Unbuckling his seat belt during car trips
The Mother also contended that a key justification in favour of permitting her to be a paid support worker was the high risk of sexual abuse to the Applicant.
There was very limited evidence from the school where the Applicant spends significant amounts of time. The Applicant’s former school principal in Melbourne wrote a two-line letter on 14 February 2025 stating the Applicant “received 1:1 support at all times. In the event of excursion, he received 2:1 support”.[25] A further letter dated 28 February 2025 added the words: “[The Applicant] also required 2:1 support when deregulating (sic)”.[26]
[25] A69 of JHB2, p350.
[26] A71 of JHB2, p355.
The Guidance Officer at the Applicant’s current school wrote on 4 February 2025:
[The Applicant] struggles with emotional regulation, exacerbated by impulsive and aggressive behaviours, which frequently escalate into unsafe and harmful behaviours to himself and others. [The Applicant] has a history of disrobing, casting objects, making contact with educators and peers including, but not limited to biting, pinching, scratching, spitting, pulling hair, and screaming.
[The Applicant] requires supervision and support for toileting, and uses a monitored ‘chill-out space’ when heightened. When [the Applicant] is dysregulated at school, he requires 2:1 support. It can take a significant amount of time to calm and re-direct him; requiring additional staff to support in this space.
[The Applicant] is currently in a class of 4 students, a teacher and a full-time teacher aide. During school hours, [the Applicant] requires 1-1 supervision and support at all times, and 2-1 supervision for all transitions, and outdoor learning activities. Transitions occur multiple times per day.[27] (Tribunal’s emphasis)
[27] A68 of JHB2, p349.
An earlier letter from the school dated 25 July 2023 stated the Applicant “needs to be reminded to use the bathroom and always needs to be accompanied and he will play with the water and soap if he is not supervised. [He] needs to be assisted to wipe his bottom”.[28] (Tribunal’s emphasis)
[28] T22 of JHB2, p222.
In the same letter, the Guidance Officer noted that the Applicant had limited understanding of personal space and will sometimes attempt to kiss his teachers on their bodies. In her view, teaching the Applicant about “boundaries is a priority for his personal safety”.[29]
[29] T22 of JHB2, p222.
Despite the assertions of risk around the home, which are explored in more detail below, the Tribunal observes that the parents have not responded to issues of risk that fall clearly within their remit of control and responsibility. For example:
(a)There was no evidence the family has taken any steps to identify and rent more suitable housing, preferably one without stairs or one with a bedroom and bathroom located downstairs and/or a separate bedroom for the Applicant, noting his age.
(b)They have not cleared out the garage to allow support workers to park the car, allowing for safer transitions to and from the home.
(c)They have not installed relatively inexpensive stove locks, despite working with an OT and being aware of this recommendation.[30]
[30] See R10 of JHB3, p210.
(d)They have not installed a buckle guard to prevent the Applicant from unbuckling his seat belt while the car is in motion, despite working with an OT, being aware of this recommendation and understanding the legal requirement for vehicle occupants to have a fastened seat belt during travel.[31]
[31] R10 of JHB3, p199.
(e)There was no objective evidence demonstrating the reported attempts by the Mother to engage support workers through a registered NDIS provider, despite the inclusion of funding for support coordination. This support is intended to help connect the family with registered service providers including those who can provide ‘higher intensity’ support workers.[32]
[32] On the 1 October 2024, the NDIS Disability Support Worker Cost Model Assumptions and Methodology 2024-2025 was amended, including an intensive and complex behaviour supports to the Price Limits Table.^{^[32]} This change addressed concern that arose when the term ‘challenging behaviours’ was removed from the high intensity support definition.
(f)There was no evidence the Mother has raised concerns with the school despite being “wary” of someone who may pose a risk to her son (discussed in further detail below). It was not apparent she had sought assurances from the school about how it safeguards her son during toileting and/or how they have worked to improve the Applicant’s understanding of appropriate personal boundaries.
(g)There was no evidence of reports to the NDIS Commission or any other action taken by the Mother despite her evidence the Applicant and his younger brother were taken by a support worker to potentially unsafe homes without the parents’ prior knowledge or permission.
It appears the Mother and Father have not made sensible, modest and relatively inexpensive adjustments around the home to improve the Applicant’s safety.
The Mother’s apparent disregard of an individual who she seemed to suggest may pose an actual risk to the Applicant at school was observed to be incongruent and inconsistent with the stated level of concern about support workers and the risk of sexual abuse.
The Tribunal expresses no view on the accuracy of the Mother’s perception of the risk at the school.
Expert evidence
Dr Pincus’ evidence re therapies
Dr Pincus is a general paediatrician with over 30 years of public and private practice. He is the Medical Clinical Governance Advisor for Pindara and John Flynn Private hospitals. Dr Pincus provides fortnightly mentoring to a group of 20 general paediatricians on the Gold Coast including clinical management review. He is a Clinical Adjunct Professor and sub-Dean at Bond University. Dr Pincus’ practice encompasses all aspects of general paediatrics including children who require multidisciplinary management. He told the Tribunal he regularly provides long-term care for children with similar developmental disabilities to the Applicant.
In his report dated 11 March 2025, Dr Pincus opined the Applicant’s severe intellectual disability and autism account for his slow developmental progress and “behaviours quirks” but they do not explain his severe behavioural problems. In his view, there has been a very strong medicalised or disease emphasis rather than a psychosocial approach to address the Applicant’s severe emotional disturbance:
Most children with such difficulties are significantly more manageable. I have been provided with an overwhelming number of reports advising that [the Applicant] needs more help and assistance at home and in the community, yet very little questioning as to why he is so dysregulated.[33]
[33] R8 of JHB3, p111-112.
Dr Pincus also noted the “extreme focus on providing extra care workers” stating.
When I asked [the Mother] about a variety of different therapists such as psychologists, occupational therapists and dieticians and what they were working on, what their goals were, and how this was being achieved, I was advised that much of the appointments are taken up by discussions regarding getting more help rather than actually providing therapy as such. I believe this is instigated by [the Mother] rather than the therapists and this was also my experience during the consultation where this was very much the emphasis. In fact, when I asked [the Mother] what gains [the Applicant] has made developmentally over the past four years, she replied that he has a few more words, he’s a little happier, he will put a toothbrush in his mouth, he’s safer in the water (which he really enjoys), and that he understands a few more words particularly the word ‘stop’. For a child with an intellectual disability, my suspicion is that most of these gains have been made by his innate progress rather than through therapy.[34]
[34] R8 of JHB3, p112.
Dr Pincus supported psychiatric or psychological support for the Mother, Father and siblings. He noted the siblings are at risk of trauma because of the Applicant’s behaviours.[35]
[35] R8 of JHB3, p112.
While he could not assess the Applicant’s learning capacity during the consultation, Dr Pincus understood it to be severely impaired. He opined that the biggest barrier to implementing therapist recommendations is the Applicant’s poor self-regulation. He was unsure about the level of communication between the family, therapists, support workers and the school in relation to the implementation of interventions across the Applicant’s life:
For instance, it seems that the speech pathologist and the school are using different AACs [Augmented and Assisted Communication] and that neither of these are used by the family who instead have been provided with picture boards by an occupational therapist. Communication is a major issue for [the Applicant] and important for his self-regulation and this needs to be appropriately led by the speech pathologist in conjunction with the school and family. I have also previously discussed my concerns regarding the high levels of stress within the household and how these may contribute to [the Applicant’s] already poor self regulation.[36]
[36] R8 of JHB3, p114.
Dr Pincus suggested a mental health approach should be trialled over a behaviour support approach.[37] He recommended between 10 and 20 psychology sessions per year with a focus on working with the parents to develop new strategies. He noted the Applicant does not have the cognitive ability to work with a psychologist and the behaviour support plan requires an “entirely new approach”.[38]
[37] R8 of JHB3, p125.
[38] R8 of JHB3, p123
Due to the Applicant’s severe intellectual disability, Dr Pincus indicated he did not expect capacity building therapies would significantly improve the Applicant’s functional capacity though he believed gains could be made in communication and self-care skills. Dr Pincus opined that increased emotional regulation would likely correlate with more participation in favoured activities and lower levels of supervision.[39]
[39] R8 of JHB3, p126.
Dr Pincus also questioned the practicality of the number of therapy hours requested, noting the right of the child to have opportunities for rest, leisure, and fun. In his practice, for a child receiving long-term therapy, he generally aims to limit interventions to one or two hours per week outside of school and a maximum of four hours.[40] Dr Pincus considered the following options reasonable, but noted a decision would need to be made about the highest priority interventions:
[40] R8 of JHB3, p127-128.
(a)A speech pathologist working with the Applicant on an AAC for 1 hour per week.
(b)Possible consultation with a feeding therapist every 4 – 6 weeks.
(c)Music therapy to support emotional regulation (noting there is not a good evidence base for it).
(d)10 – 20 sessions with a psychologist (mainly working with the parents).
(e)1 – 2 hours of specialist behaviour support per week.
He did not consider OT and exercise physiology to be priority therapies at this time because the Applicant is “physically reasonably capable and where [the] best intervention really consists of allowing him outside to play with appropriate supervision”.[41]
[41] R8 of JHB3, p127.

Independent OT, Ms Rutherford expressed similar views to Dr Pincus, noting it was her impression the parents did not have the time or emotional capacity to implement strategies:
In my opinion, it is not the number of sessions that [the Applicant] attends that is pertinent. This number of therapy sessions could be beneficial if they were consistently modeling and eliciting pro-social behaviour, emotional regulation and effective communication.[42]
[42] R10 of JHB3, p223-224.
Dr Harte commented on and recommended a wide range of therapies in his letter 17 December 2024 including sensory necklaces, incontinence products, nutritional supplements, podiatry, music therapy, physiotherapy, psychology and OT etc.[43] The Tribunal observes there was minimal references to the Applicant’s behaviours in the same 3-page letter. Dr Harte noted the Applicant experiences “prolonged inappropriate temperamental expressions in the floor of a car that could potentially be dangerous for drivers” and recommended “maximal supply of resources for behavioural management”.[44]
[43] A60 of JHB2.
[44] A60 of JHB2, p323.
Later in the hearing, the Mother claimed she did not have time during her last consultation with Dr Harte to discuss the severity of the Applicant’s behaviours. Noting the number of issues addressed by Dr Harte following that consult, the Tribunal does not accept the Mother’s claim.
At hearing, Dr Harte was somewhat more circumspect about his recommendations for therapy, stating:
To be totally honest, the ability to be able to say, an outcome measure by that intensity of treatment would be different, and to what degree, over a timeframe of say, a year, I can’t tell you, scientifically, what that would do.[45]
[45] Transcript Day 5, p23.
Dr Harte was observed to make an unusual suggestion – that it may be more efficient to promote targeted development by engaging the Applicant with therapy rather than going to a special school. He did not think 6 hours of allied health support per week would be damaging to a child and considered the benefits would be more stability, mobility, and communication.[46]
[46] Transcript Day 5, p23-24.
While the Tribunal places significant weight on Dr Harte’s evidence regarding the issue of Risperidone, it prefers the evidence of Dr Pincus on the issue of capacity building supports and therapy. Dr Pincus considered the evidence of the treating practitioners in detail prior to preparing his report, he had a more recent consult with the parents, and he was clearly more abreast of the current behavioural challenges experienced by the Applicant.
The Tribunal and the Mother are in absolute agreement that the Applicant should continue to go to school.
For reasons which will be explored in greater detail below, the Tribunal places significant weight on Dr Pincus’ evidence (and Ms Rutherford’s evidence in later discussion) and prefers his evidence over the treating allied health practitioners (also discussed further below) for the following reasons:
(a)He prepared his report in accordance with the Tribunal’s guideline on persons’ giving expert evidence;[47]
[47] See also the practice direction for giving expert evidence dated December 2024 -
(b)He is a generalist paediatrician with over 30 years experience in public and private practice with children who have similar diagnoses and impairments to the Applicant;[48]
[48] R8 of JHB3, p106.
(c)His opinion was impartial, and he did not advocate for either party. On the contrary, he adopted a curious and problem-solving approach which was observed to be appropriately child-focused and independent;
(d)He provided fresh insights including a suggestion for a trial of Risperidone which he thought could significantly moderate the Applicant’s severe emotional dysregulation.
The issue of Risperidone is discussed in greater detail below.
Treating and other medical practitioners
It was not apparent from either the documentary or oral evidence that any of the Applicant’s treating practitioners had calculated the requested therapy hours. The treating practitioner reports did not contemplate the reality of the Applicant’s attendance at or the family’s engagement with the requested level of therapy on a weekly, fortnightly, or monthly basis. This was concerning in circumstances where practitioners had explicitly adopted or endorsed the recommendations of other practitioners in their own reports.
The Mother indicated she had been told that all witnesses ‘need to say the same thing’. The Tribunal observes that each of the Applicant’s witnesses recommended or advocated for the parents to be paid support workers. In their letters and reports, they largely adopted or endorsed the Mother’s position about the need for a 2:1 ratio of paid support without advancing clear reasoning based on their qualifications, training and experience.
Rather than strengthening the Mother’s claim, the uniformity of opinion tends to suggest that treating practitioners and other witnesses advocated for the Mother’s position. It was not apparent they had exercised independent clinical or professional judgement and/or confined their recommendations to matters within their remit of expertise. Further, the treating practitioners did not complete their reports in compliance with the Tribunal’s guideline on person’s giving expert opinion evidence, despite the Mother receiving extensive assistance from a lawyer.
The Tribunal places limited weight on the opinions and recommendations of treating practitioners in circumstances where it is evident that they simply repeated what the Mother wanted.
The Tribunal places some weight on their reported observations of the Applicant’s behaviours and their understanding of the family including daily/weekly routines.
Ms Mikaela Field - speech / feeding therapist
Ms Field is a certified practicing speech pathologist with a focus on paediatric feeding.
In her two-page report dated 17 October 2024, Ms Field indicated the Applicant has mild oral dysphagia with a low risk of aspiration. She also assessed him as having a moderate to severe paediatric feeding disorder. She recommended weekly feeding therapy sessions at the Applicant’s home.[49] On 17 December 2024, despite not having commenced any feeding therapy with the Applicant, Ms Field wrote a more extensive report. In this report, Ms Field opined that the Applicant requires monitoring for aspiration.[50] It is unclear on what basis she formed this opinion. She also stated:
[49] A43 of JHB1, p249-250.
[50] A61 of JHB2, p325.
[The Applicant] requires 2 support workes with him at all times to keep him safe from harm. At time when only 1 support worker has been available it has resulted in [the Applicant] harming his sibling, running away or removing his clothes in a public space when the support worker was completing a task for him such as paying for items, packing items away or needing to use the bathroom. (Errors and emphasis in original).[51]
[51] A61 of JHB2, p326.
Ms Field told the Tribunal she has met with the Mother on 3 occasions; first in October 2024 and most recently in July 2025, with a telehealth consult in between. She is yet to work directly with the Applicant and has not directly communicated with the other speech pathologist focusing on the Applicant’s communication.
Ms Field’s treatment approach involves making small changes to the food a client already eats. She explained because the Applicant has a restricted diet, it is important not to push too hard because he might stop eating some of his preferred foods.[52] She also helps parents and support workers with menu planning. Ms Field told the Tribunal she regularly uses a 12-week program to trial interventions and will then “back out and let the family do their thing”.[53] She confirmed that a dietician is best placed to identify the types of food one needs to meet nutritional adequacy.
[52] Transcript Day 2, p16.
[53] Transcript Day 2, p16.
Ms Field indicated she had a vague idea of the other therapies being sought but couldn’t provide specifics for all of them. She confirmed she had not witnessed the Applicant’s behaviours of concern herself and her conclusion that the Applicant requires a ratio of two support workers was based on her discussions with the Mother.[54]
[54] Transcript Day 2, p16-17.
Ms Sarah Hazell – psychologist
Ms Hazell confirmed she has been a registered psychologist for 10 years. She completed her Bachelor of Psychology with honours in 2014 from Griffith University. Ms Hazell is not a clinical psychologist which means she cannot diagnose conditions.
Ms Hazell told the Tribunal she has been working with the Applicant since early 2024 on a fortnightly basis. The Applicant usually attends her office for consultations. Her work is focused on improving the Applicant’s emotional regulation and building his capacity to engage socially in the community. She claims to have worked with the Applicant and the parents on issues relating to identifying anxiety and managing his hyperactive tendencies although this was not apparent from the 7 letters or reports authored by her.
In her second letter dated 18 April 2024, Ms Hazell focused on a need for 2:1 support worker assistance and overnight support.[55]
[55] A13 of JHB1, p74-75.
In her third letter, also dated 18 April 2024, Ms Hazell said “[r]esearch has shown that through self-monitoring and labelling emotional behaviours, individuals can gain a better understanding of their emotions and take measures to prevent more severe emotional issues, thereby improving their mental health outcomes”.[56] Noting the Applicant’s severe intellectual disability, it is not clear to the Tribunal what strategies she intended to implement to achieve greater emotional regulation.
[56] A14 of JHB1, p76.
On 21 October 2024, Ms Hazell reported “[a]s a result of [the Applicant’s] multiple disabilities, he has been unable to develop emotional recognition and regulation… his current emotional responses are limiting his access to the community and will lead to isolation”.[57]
[57] A45 of JHB1, p253.
In her oral evidence, Ms Hazell emphasised the need for parents to help implement the psychological strategies as the Applicant is unable to implement them on his own. She noted psychology and behaviour support interventions can be complimentary, however she attempts to tackle the underlying anxiety which may contribute to behaviours of concern. Ms Hazell met the behaviour support practitioner, Ms Campey, a few days prior to the hearing for the first time.
In her sixth letter dated 6 March 2025, Ms Hazell wrote:
Whilst [the Applicant] needs the 2:1 support, both him, and his siblings, are being psychologically impacted by the support workers in their space as there seems to be a high turnover of staff. The constant staff changes have brought a degree of unpredictability which has interrupted the stability of the family home. [The Applicant] has been isolated from his family as he is often with support workers, he will often cry, get physically aggressive or verbally indicate that he wants his mother. His siblings have also stated that they do not want lots of support staff in their house.
[The Applicant’s] two young sisters also engage in behaviours such as shutting the door on support staff, telling them to go away, and other avoidant behaviours. After working with these children, my observations indicate these behaviours are out of character and seem to be a stress response… I believe that allowing [the Mother] to be a paid support worker for him will significantly reduce the psychological impact for the whole family. This will allow [the Applicant] to get the support he needs while reducing the number of people having to be in the family home.[58]
[58] A72 of JHB2, p357.
As the treating psychologist for the Applicant’s two younger sisters, Ms Hazell indicated she did not see any issue or conflict of interest by initially recommending more support workers for one client (the Applicant) and then suggesting support workers were having a detrimental impact on her other clients (the younger sisters).[59] In her view, there is no difference if the parents are paid as support workers because they are already doing the same kind of work for the Applicant.[60]
[59] Transcript Day 2, p40.
[60] Transcript Day 2, p43.
Ms Hazell was unsure of details regarding the Mother’s proposal to hire a nanny to look after her other children in the event that she became a paid support worker for the Applicant. Ms Hazell indicated she did not consider a nanny would cause problems for the younger children. She could not explain to the Tribunal why the presence of another adult in the form of a nanny would be appropriate in the home, but not a support worker.[61]
[61] Transcript Day 2, p43.
Ms Hazell confirmed it was reported to her that support workers can only support the Applicant at a 2:1 ratio. She agreed with the proposition that one of the Applicant’s parents could be one of the two supports she had recommended. When asked why she had included other treating practitioners’ recommendations in her own report she replied, “So that’s just the way I’ve kind of been taught how to write them, is to include, like, the overall recommendations in collaboration with others, yes”.[62] She agreed with the proposition that she had essentially accepted what everyone else said and wasn’t necessarily expressing a clinical judgement on those recommendations by including them in her own report.[63]
[62] Transcript Day 2, p39.
[63] Transcript Day 2, p39.
Mr Jacob Bryant – physiotherapist
Mr Bryant indicated he has been working with the Applicant for about 2 years. He authored a report in June 2023 and April 2025.[64] His name was included in two other reports written by OT, Ms Middlebrook however the extent of his contributions to these reports is unclear.[65] He recommends 104 hours of aquatic physiotherapy or twice weekly sessions.[66]
[64] See T20 of T-Docs and C81 of JHB2.
[65] See T37 and T48 of T-Docs
[66] A81 of JHB2, p410.
Mr Bryant told the Tribunal the Applicant has made some slow progress and can now follow basic instructions.[67] For example, in March 2023, the Applicant “required full assistance to float, swim and climb out of the pool” and he would “not listen to any instructions given during the session, was very distracted and would continuously act on impulse”.[68] By June 2023, the Applicant “listened to one-step instructions when asked once or twice” and in April 2025 the Applicant could follow “instructions such as ‘swim to the edge’ or ‘pick up the toys from the bottom of the pool’. [The Applicant] still act (sic) impulsively when given free time but tends to stay focused when given continual instructions”.[69]
[67] Transcript Day 2, p49.
[68] T20 of T-Docs, p193.
[69] A81 of JHB2, p404.
Mr Bryant told the Tribunal the Applicant can tread water and slowly paddle across the pool – about 15 meters. Mr Bryant explained swimming is great for building the Applicant’s limb and core strength however he still struggles to pull himself out of the pool. Mr Bryant said he had not given the Applicant’s parents an exercise program or routine to implement at home but regularly speaks with support workers. He explained that getting in and out of the pool would be a good strength-based exercise for the Applicant to practice at home.[70]
[70] Transcript Day 2, p49-50.
Noting the nature of his role as a pool-based physiotherapist, it is unclear to the Tribunal on what basis Mr Bryant made recommendations in his April 2025 report for support worker and respite hours, ratios of support, and for the Applicant’s parents to provide active overnight support.[71]
[71] A81 of JHB2, p410.
Dr Kasia Lewandowska – psychiatry registrar and family friend
Dr Lewandowska became a generalist medical practitioner in 2020. She has medical qualifications from Notre Dame University. Dr Lewandowska is currently in her third year of a five-year postgraduate psychiatry training program and currently works at the Gold Coast University Hospital.[72]
[72] Transcript Day 2, p79-80.
Dr Lewandowska was the family’s neighbour during 2023, before the family moved to their new rental property. She continues to catch up with the family on a monthly basis. She has not assessed the Applicant.[73]
[73] Transcript Day 2, p81.
In her letter dated 18 December 2024, Dr Lewandowska wrote:
Due to these complexities, [the Applicant] and his family require increased 2:1 support to address the significant risks of harm to himself and others, including his family, that stem from his behavioural challenges. We strongly advocate for his mother… to be included as one of his support workers. As a qualified support worker, [the Mother] possesses an unmatched understanding of [the Applicant’s] specific needs, which even the most experienced professionals may find challenging to replicate.[74]
[74] A62 of JHB2, p335.
Dr Lewandowska reported the Applicant often requests his Mother to assist with personal care tasks such as using the toileting or bathing. She claimed the Mother being a paid support worker would safeguard the Applicant’s dignity and reduce the stress associated with repeatedly building trust with new caregivers for intimate tasks.[75]
[75] A62 of JHB2, p335.
Dr Lewandowska appeared to the Tribunal to be unaware that parents providing paid support to their children under the NDIS is relatively rare and subject to operational guidelines. In any event, she opined the benefits of the Applicant’s family providing support promoted his dignity and safety and outweighed the risks or other alternatives. Dr Lewandowska did not identify any risks associated with the parents providing paid support to the Applicant.[76]
[76] Transcript Day 2, p82 – 83.
Dr Lewandowska confirmed she was advocating for the Applicant and expressing personal views rather than making recommendations as a medical practitioner. She also told the Tribunal she had not reviewed the proposed roster or schedule and wasn’t sure how it was intended to work in practice. She noted meeting many different support workers during the period she has known the family.[77]
[77] Transcript Day 2, p87-88.
Dr Joanne Lawrence – paediatrician and friend
Dr Lawrence is a registered specialist medical practitioner (paediatrics) and was first registered a general medical practitioner in 2005. She has a Bachelor of Medicine and Surgery from the University of Auckland.[78]
[78] Transcript Day 2, p91.
Dr Lawrence first met the Mother approximately 13 years ago through a mother’s group. Dr Lawrence has not treated the Applicant but worked in the same Melbourne hospital as some of the Applicant’s treating doctors before the family moved to Queensland. Dr Lawrence previously supported the Mother in some medical consultations with her colleagues to help bridge the medical knowledge gap. She noted the Mother’s medical knowledge has evolved over the years.[79]
[79] Transcript Day 2, p91-92.
Dr Lawrence wrote a letter dated 9 November 2023 noting parental burnout in the context of a failing business, financial difficulties, and inadequate supports for the Applicant.[80]
[80] T1D of T-Docs, p18.
Dr Lawrence told the Tribunal she had observed the Applicant over many years, with his communication and self-regulation difficulties becoming more apparent as he got older. Dr Lawrence recalled observing the Applicant hit his Mother and being surprised because she hadn’t seen his physical aggression before:
[H]e was unhappy… I can’t remember the details, but I remember being impressed how firmly she sort of redirected his attention, got him to a place where he felt safer, let him know that behaviour wasn’t okay, but could also interpret that behaviour of him being non-verbal, [but] clearly having a stressor present.[81]
[81] Transcript Day 2, p93.
Dr Lawrence told the Tribunal it was not within her remit to comment on the appropriateness of whether the Mother should be a paid support or not. “I know that if [the Mother] can’t be at home with [the Applicant] in a paid fashion, that does put more financial pressure on the family”. Dr Lawrence indicated she had not encountered parents being paid as support workers before and understood it was an “unusual request”. She also expressed the view that in circumstances where the Mother is a paid support worker for other people, it seemed a shame that she can’t be there for her own child, particularly given the family’s financial difficulties.[82]
[82] Transcript Day 2, p93-94.
Ms Crystal Cope – speech therapist

Ms Cope is a certified speech pathologist with 5 years’ experience. She previously worked as a behaviour therapist with autistic children.[83] She began working with the Applicant in February 2024 and authored 5 reports since December 2024.[84]
[83] Transcript Day 2, p102.
[84] See A67, A80, A98, A105 and A118 of JHB2.
Ms Cope indicated the Applicant’s communication is like a child aged 18 months,[85] describing his speech and language skills as follows:
[85] A105 of JHB2, p606.
[The Applicant] is minimally speaking and currently communicates through single words, grabbing items, facial expressions, and vocalisations and behaviours (i.e., screaming, crying). He is often only understood by familiar communication partners (i.e., family members, and classroom teachers). [The Applicant] has a severe speech sound disorder which impacts his ability to be understood through verbal communication. His speech errors mean that he is highly unintelligible, as he omits sounds at the beginning, middle, and end of words, and omits sounds in clusters.
…
[The Applicant] requires access to appropriate Augmentative and Alternative Communication (AAC) to enable him to develop effective, independent communication skills which allow him to achieve greater choice and control over his lifetime.[86]
[86] A118 of JHB2, p665.
Ms Cope told the Tribunal that her approach to working with the Applicant involves teaching him how to use an AAC device, modelling keyword signs and improving verbal communication. She explained the Applicant is unable to put words and sentences together. For example, when the Applicant says ‘McDonalds’ it sounds like ‘dog’ which can be very confusing for people who don’t know him well. An AAC software/application will assist the Applicant communicate his preferences and is installed on a physical/hardware device.[87]
[87] Transcript Day 2, p106-107.
A number of Ms Cope’s letters were undated; however it appears her more recent recommendations include twice weekly speech sessions focused on receptive and expressive language through AAC, weekly speech sessions focused on swallowing and feeding, 5 hours for review and assessment reports, 10 hours for carer and parent training and 10 hours for stakeholder meetings.[88]
[88] A105 of JHB2, p105.
The Tribunal will address the balance of Ms Cope’s evidence under the request for an AAC application and communication device below.
Ms Emma Middlebrook – occupational therapist (OT)
Ms Middlebrook graduated from Southern Cross University and is a registered OT. She has approximately 7 years’ experience.[89]
[89] Transcript Day 3, p82.
Ms Middlebrook authored 12 letters or reports as part of these proceedings. She confirmed she had also written other letters for the Mother but wasn’t sure if they had been submitted yet. The Tribunal acknowledges that some reports were in response to questions from the Respondent, noting the Mother requested new supports over the course of the proceedings.
Ms Middlebrook has not had direct contact with any of the Applicant’s treating practitioners except the physiotherapist Mr Bryant (who works for the same organisation) and the behaviour therapist, Ms Campey.[90]
[90] Transcript Day 3, p85.
In her first report dated 3 October 2023, Ms Middlebrook recommended aquatic physiotherapy, OT, speech pathology, psychology, behaviour therapy, exercise physiology, podiatry, dietician and music therapy.[91] In her oral evidence, Ms Middlebrook indicated to the Tribunal she had formed her recommendations based on her observations, discussions with the Mother and the reports of other practitioners. She endorsed the other practitioner’s recommendations, but alone recommended OT, music therapy, support coordination and assistive technology consisting of an iPad and “resources” totalling $2500. In relation to music therapy, she stated:
[91] T37 of T-Docs, p340.
Because… in collaborating with his mum and also looking at [the Applicant’s] needs and what he enjoys and what he responds to, that’s why I recommended the music therapy because I thought it would help him in his everyday life.[92]
[92] Transcript Day 3, p85-85.
In the same report, Ms Middlebrook asserted that the level of risk associated with the Applicant’s behaviours required 2:1 support “within the home and the community” and “6 hours of daily overnight support”.[93] She stated:
[93] T37 of T-Docs, p339.
[The Applicant] has limited informal supports whom have limited capacity. [The Applicant] is at immediate risk of breakdown of supports. Without additional support, it is likely that a breakdown of supports will ensue and there is a potential care will be relinquished.[94]
[94] T37 of T-Docs, p339.
At hearing, Counsel inquired as to how Ms Middlebrook formed her opinion and recommendations regarding the risk of parental relinquishment. The following exchange took place:
Counsel:But my concern is the source of this actual text. Do you recall relying on anything else?
Ms Middlebrook:         That was my own opinion from my clinical education, from my clinical opinion. I haven’t based it on anything else.
Counsel:Associate, can we go to document T-29 and specifically page 241, the numbered paragraphs.
…
This is a document from the behaviour support practitioner and the date of this is the 1^st September 2023, which is approximately 1 month before your report. You’ll see there at the bottom of that paragraph ‘without additional support, it is likely that breakdown of supports will ensue and there is a potential care will be relinquished’?
Okay, now that is word for word what was included in your report?
Ms Middlebrook:         Yes
Counsel:This next part of the cost to the government, that’s not in your report, but the next paragraph and in particular the recommendation about support worker hours again is word for word?
Ms Middlebrook:         Yes, that may have now that you’ve said that. I can see that. Yes, I may have got that information as well from the behaviour therapist report as well.
…
Counsel:[B]ut you will agree that this type of – let’s just call it issue between reports coming from practitioners does raise a concern about the independence of recommendations that are being made?
Ms Middlebrook:         Yes, I understand that.[95]
[95] Transcript Day 3, p86 – 87.
In her second report dated 13 November 2023, Ms Middlebrook recommended the Mother be considered a paid support worker for the following reasons:
(a)The Applicant’s severe intellectual disability and inability to communicate his needs, anxiety or experiences, resulting in an increased risk of neglect and abuse.
(b)The Mother has been a victim of abuse resulting in high levels of anxiety when the Applicant is not in her care because he can’t communicate his experiences.
(c)“For [the Applicant] to live in peace [the Applicant’s] inherent ‘rights to freedom of thought, conscience and religion or belief’ must be considered when appointing an appropriate carer for him”.
(d)“The Applicant shows strong personal views about his care, privacy and dignity relating to showering, toileting and other daily activity needs that he needs help with. [The Mother] also shows strong personal views about [the Applicant’s] privacy and dignity in these areas”.[96]
[96] T48 of T-Docs, p376.
In her third report dated 18 December 2023, Ms Middlebrook recommended the Applicant have 2:1 support when not at school. She reported that the Applicant wakes up 4 to 12 times each night because of toileting accidents and suspected seizure activity.[97]
[97] T1J of T-Docs, p38-39.
In her fourth report dated 23 April 2024, Ms Middlebrook recommended twice weekly OT sessions which would involve parental and carer guidance, monitoring and counselling. She also recommended quarterly liaison between practitioners to ensure a consistent team approach.[98]
[98] A17 of JHB1, p81-82.
In her fifth report dated 16 August 2024, Ms Middlebrook provided further explanation in support of the Carrot 300 car seat (discussed further below). She wrote the Applicant “is also able to unbuckle himself from the 5-point harness, creating a significant safety risk for himself and passengers in the car, as he unbuckles himself and moves around the car when in motion”.[99] Curiously, despite asserting that the Respondent’s failure to fund the car seat places the Applicant and other vehicle occupants “at extreme and immediate risk”, she did not recommend a buckle guard. The Tribunal understands a seat belt is a legal and necessary minimum requirement for safe travel in a vehicle.[100] Ms Middlebrook confirmed in her seventh letter dated 20 September 2024, that “the use of a seat belt guard on a person with disability during transportation, that does not restrict their free movement, is not considered a restrictive practice, as it ensure the person is complying with state and territory laws”.[101] As already noted, there is no evidence the parents have installed a seat belt buckle guard.
[99] A29 of JHB1, p164.
[100] A29 of JHB1, p164. See also A36 of JHB1, p194.
[101] A36 of JHB1, p199.
On the 18 October 2024, Ms Middlebrook described how the Applicant’s use of the Proloquo AAC at school has increased his communication skills. “When using Proloquo to communicate, [the Applicant’s] behaviours of concern are reduced, his ability to complete tasks is increased, he is able to communicate his needs more effectively, and he maintains in a self-regulated state for longer”.[102] She did not provide any concrete examples beyond these assertions.
[102] A44 of JHB1, p251.
Ms Middlebrook indicated she has not been in the home since around December 2024. Over a 6-month period last year, she observed a high changeover in staff and a chaotic and inconsistent environment with respect to how workers provided support to the Applicant.[103]
[103] Transcript Day 3, p85 – 86.
The Tribunal asked Ms Middlebrook if she could provide an estimate of how much time had been spent on reports and letters for these proceedings. She replied, “god, there’s so many”.[104] She indicated Legal Aid had sought more information and clarification about various matters but could not remember whether Legal Aid had contacted her directly. Ms Middlebrook confirmed she had not calculated the number of therapy hours requested.[105]
[104] Transcript Day 3, p95.
[105] Transcript Day 3, p95.
Ms Tenarra Campey – Behaviour Support Practitioner
Ms Campey graduated with a Bachelor of Psychological Science in 2023 and is currently undertaking an Honours year. She started work with Aruma as a behaviour support practitioner in 2023. She previously volunteered at Headspace and began direct support as a support worker in 2019.[106]
[106] Transcript Day 4, p54-55.
Like Ms Middlebrook, Ms Campey authored at least 10 documents that were filed in evidence. She confirmed at hearing that she had spent significant time preparing letters and reports for the proceedings.
Ms Campey prepared a behaviour support plan dated 24 April 2024.[107] She told the Tribunal that Aruma doesn’t have a behaviour support plan that focuses specifically on children and restrictive practices.[108]
[107] A23 of JHB1, p100.
[108] Transcript Day 4, p57.
In the behaviour support plan, Ms Campey wrote:
[The Applicant’s] behaviours have been assessed through the collection and analysis of data over three weeks. The process involved the completion of a functional assessment to determine setting events, antecedents and appropriate positive support strategies. This information has been used to determine future support needs, goals and areas for skill development, teaching strategies and recommendations.[109]
[109] A23 of JHB1, p103.
Ms Campey told the Tribunal that the data collection process involved quantitative and qualitative data.
So interview and – you know, observations are part of our data collection process. There is often limitations with families because they’re often under-resourced by the NDIS and do have limitations on what kind of data they can provide. So sometimes we are creative in how we get the information that we need to be able to formulate the plan.[110]
[110] Transcript Day 4, p58.
Ms Campey explained the data collection method should ideally focus on each behaviour, however it is impractical to collect data that way when there are so many behaviours.[111] She confirmed data was collected in the period from 28 August 2023 to 17 September 2023,[112] contained in a four-page document.[113] The Tribunal did not receive any other behavioural data, said to be collected in a systemised manner.
[111] Transcript Day 4, p58.
[112] Transcript Day 4, p60.
[113] See T59 of T-Docs, p407-410.
Ms Campey indicated the behavioural data had been collected by family members. She agreed with Counsel that the handwriting appeared to be the same throughout the data collection document.[114] The Mother had previously given evidence that it was her handwriting in the document.[115]
[114] Transcript Day 4, p65-66.
[115] See T59 of T-Docs, p407-410.
In a letter dated 1 September 2023, Ms Campey wrote in support of the Applicant’s change of circumstances as follows:
[The Applicant] has been observed to have intense and frequent behaviours of concern and harm, both to himself and others. A scatterplot has been used to collect data over 3 weeks, and it was found that behaviours were occurring every hour for most hours.[116]
[116] T29 of T-Docs, p238.
Significantly, this letter was written only a few days after the scatterplot data collection process was initiated and well before it was complete. When asked by Counsel about this discrepancy, Ms Campey indicated she often uses templates, suggesting the date may have been wrong on the template.[117] Curiously, an almost identical letter was provided on 9 November 2023 with the added inclusion of ‘frequency of behaviour’ graphs.[118]
[117] Transcript Day 4, p67.
[118] T1E of T-Docs, p21.
The Tribunal does not accept Ms Campey’s explanation that her September 2023 letter was simply an error in the template. The Tribunal is satisfied that she expressed opinions and recommendations on data that did not exist at that point in time. The Tribunal observes that in her November 2023 letter, Ms Campey indicated the behaviours occur across several contexts including the home, bus, car, school and community, however she failed to acknowledge that the Mother was the sole source of the quantitative data. Given the rate of alleged behaviours across the day, there was a noticeable lack of reports or data from the Applicant’s school – a place where he spends a significant portion of his week.
Ms Campey indicated she had conducted online training with support workers who had provided positive feedback on the efficacy of the strategies contained in her behaviour support plan.[119] She noted:
[119] Transcript Day 4, p61.
The barrier to it is that when someone’s having such frequent behaviours, it is incredibly difficult to remain in a regulated space to be able to co-regulate. Hence, him needing more funding and why the focus has been trying to get that funding, because there isn’t a human that can remain regulated after experiencing so many behaviours of concern for periods of time.[120]
[120] Transcript Day 4, p61.
Ms Campey later clarified that she thought the support workers had received a condensed version of the behaviour support plan rather than the full plan. She was unsure whether providing a cloth for the Applicant to bite when he was engaged in self-injurious behaviours was included in either document. She recommended the following strategies in response to the Applicant’s “crisis behaviours” which include biting his hand, kicking property and hitting his head on walls or floors:
- Safety first
- Give time and space to calm down
- Keep self, others and customer safe
- Monitor from a distance
- Seek additional supports if needed.[121]
[121] A23 of JHB1, p143.
Counsel took Ms Campey through a range of her suggested proactive strategies including the use of colourful cleaning tools and a spinning ‘chore wheel’ to make cleaning tasks ‘more fun’. The Tribunal observed such strategies to be seemingly inconsistent with the Applicant’s reported level of functional capacity. Ms Campey noted the Applicant could now put a toothbrush in his mouth because a support worker came up with the idea to play a favourite song as part of the routine. It was not apparent this innovation was prompted by her behaviour support plan.
On 24 April 2024, Ms Campey recommended an increase to the Applicant’s behaviour support hours. She opined that an increase would result in “improved socially appropriate behaviours in the community, especially in shopping centres or other environments where incidental social interactions with strangers occur” and will assist him to “learn effective coping strategies and self-regulation techniques”.[122] Ms Campey also indicated she coached the Mother and was in regular contact with the Applicant’s therapists through video conferencing and email.[123]
[122] A21 of JHB1, p96-97. A24 of JHB1 appears to replicate the contents of A21 using a different font.
[123] A21 of JHB1, p97.
On 29 October 2024, Ms Campey prepared a 2:1 ratio workload document which set out examples of the various tasks that two support workers would complete over the course of a day. For example, during breakfast, two support workers could do the following:[124]
[124] A46 of JHB1, p256.

Support Worker 1

Support Worker 2

1. Support [the Applicant] to choose what he wants to eat for breakfast. This would involve [the Applicant] going to the fridge and pulling out what he likes and wants. Encourage [the Applicant] to choose food that is recommended by the dietician and speech therapist.

143.     1. Prepare food items for [the Applicant], ensuring they are easy to manage.

144.       2. Assist [the Applicant] in sitting at the table, using verbal prompts: “Let’s sit and have breakfast together!” Be aware that [the Applicant] will try to get every bit of utensils out of the cupboard and dump it. He needs encouragement to only get one out. Show [the Applicant] how to use utensils and guide his hand if needed (hand-over-hand for the spoon).

145.     2. Show [the Applicant] how to pour milk into the cereal or spread butter on bread, allowing him to participate where possible.

146.       3. Encourage him to take one bite at a time, celebrating every success (“Great job, [name]! Let’s take another bite.”)

147.     3. Physically assist with serving food onto [the Applicant’s] plate.

Despite being a child with a severe intellectual disability, Ms Campey recommended the support workers encourage the Applicant to get his prescription medication from its designated spot.[125]
[125] A46 of JHB1, p259.
Support Worker 1 was tasked with assisting the Applicant to brush his teeth with assistance while Support Worker 2 was advised to “be ready” to use calming techniques and remove items which the Applicant might throw if escalated.[126] The document did not, in the Tribunal’s view, provide a compelling basis for 2:1 paid support in the home.
[126] A46 of JHB1, p261.
On the 11 November 2024, Ms Campey wrote a further letter purporting to explain the impact of the Applicant’s behaviours of concern on his siblings which “are reduced when he is sufficiently supported, particularly in a 2:1 ratio”.[127] She cited a range of articles which referenced sibling bullying and sibling violence, however it was unclear whether the studies focused on behaviour that might be characterised as family violence, criminal behaviour or behaviours of concern arising from an intellectual disability. Ms Campey opined the effects on siblings would be the same. The following exchange took place:
[127] A47 of JHB1, p279.
Counsel:You’ve provided the summary throughout, and then you’ve got – there are four studies… And then the last one, Danchev and Wolk, in a study that’s been published in Developmental Review, so siblings, conflict and bullying. You’ve read that study?
Ms Campey:I believe so. I would have. It’s been some time, though.
Counsel:I’m going to put this to you, and I want to see what your response is. When I go to the journal Developmental Review and look at 2019 and indeed volume 51, there is no such article.
Ms Campey:I’m unsure.
Counsel:When I go to Google and do an exact phrase search for the title ‘Siblings, conflict and bullying’, there’s no such document. It’s actually the blankest Google result I’ve ever seen. What is the source of this? Do you have the papers on file?
Ms Campey:I don’t have the papers on file.
Counsel:And the letter itself, you authored?
Ms Campey:Yes, that’s correct.
Counsel:So there’s no element of generative AI being used in the production of this letter?
Ms Campey:I do use AI occasionally to edit my letters.
Counsel:A particular program?
Ms Campey:Well, there’s a couple that I use. I use Grammarly for one.
…
Counsel:Okay, because I am familiar with that one in terms of sentence structure and so forth. I’m thinking more in terms of the generation of content itself rather than the expression element of it.
Ms Campey:Sorry, you’re going to have to be more clear.
Counsel:The use of generative AI to generate the content itself?
Ms Campey:Not generate content itself. Feedback, different ideas, making it into a coherent letter.
…
Counsel:The second study, so this is Bowes, Wolk and Jolson, et cetera, that study does exist but not in that journal. The citation itself is wrong.
Ms Campey:Ok
…
Counsel:Just finally, Ms Campey, this letter, how long do you estimate it would take you to have written it?
Ms Campey:I don’t, I don’t know.
…
Counsel:I’ve just received instructions that the Agency has looked at its payment records and that for this letter, 11 November 2024, there’s a payment claim for three hours at the full rate. Would that sound right?
Ms Campey:Doesn’t mean that’s all I did during that time. I often will, if I do charge, charged for an entire amount for work provided on that day. It doesn’t mean that I’ve charged three hours for this document?
Counsel:So what other activities might you have undertaken at this time?
Ms Campey:It really depends on what day is. I can’t recall.[128]
[128] Transcript Day 4, p71-73.

The Tribunal will consider the requested supports in line with this approach.
Request for sensory necklaces totalling $822.72 per year
There was limited evidence before the Tribunal about the nature of the sensory necklaces. Ms Middlebrook wrote that without the necklace, the Applicant “resorts to behaviours of concern such as spitting, biting his hand, and constant chewing of his shirt” which becomes wet from saliva within a few minutes.[327] The Mother claimed the Applicant “will soak around 5-10 tops daily as he almost always holds them in his mouth” and goes through “8 cheer necklaces per month”.[328] She requested 4 pieces per month at a cost of $822.72, but did not provide a quote for the product.
[327] A38 of JHB1, p212.
[328] A102 of JHB2, p588-589.
Ms Starr gave evidence that she gives the Applicant a clean cloth to chew. She also gave evidence about packing extra underpants / tracksuit pants for school, but not extra t-shirts.
Without detailed particulars of the requested support, it is difficult for the Tribunal to determine if the support falls within Schedule 2 of the Transitional Supports Rules. It could be that the sensory necklace is captured by Item 4(g) (toys) or Item 5(a) (jewellery) of Schedule 2 which would mean it is not a NDIS support.
As the Tribunal is unsure, it elects to proceed to Schedule 1 of the Transitional Support Rules which lists supports considered a NDIS support. Of the 36 categories of support, the Tribunal was unable to identify an obvious category capable of incorporating a sensory necklace.
The Tribunal finds a sensory necklace is not a NDIS support by operation of Schedule 1 of the Transitional Rules. Section 34(1)(f) is not met.
Sustagen Hospital Formula totalling $1,455.00 per year
The Respondent contends that Sustagen hospital formula at a cost of $1,455.00 per year is a health product that falls within Item 3(a) of Schedule 2 of the Transitional Supports Rules. This includes food, beverage, cleaning, household and health products.
The Tribunal agrees. Sustagen hospital formula is not a NDIS support. Section 34(1)(f) is not met.
Clothing
The Mother seeks $10 per day for durable clothing. She did not provide further particulars regarding durability or explain how she arrived at a figure of $10 per day. There was no evidence the clothing was adapted or modified to address the functional impairments of the Applicant pursuant to section 4 of the Transitional Supports Rules.
The Respondent submits that Item 5(c) of Schedule 2 of the Transitional Supports Rules excludes standard clothing as a NDIS support.
The Tribunal agrees. A $10 daily budget for clothing is not a NDIS support. Section 34(1)(f) is not met.
Other Assistive Technology totalling $500
The Mother seeks funding for “basic utensils to prepare a meal”[329] and modified cutlery.[330]
[329] A115 of JHB2, p649
[330] A102 of JHB2, p589.
The Respondent contends that $150 is sufficient funding to cover any low-cost assistive technology. Ms Rutherford reported observing the Applicant eat pasta using a standard fork.
The Tribunal agrees that $150 is sufficient to cover any low-cost assistive technology including modified cutlery. The Tribunal is not satisfied that utensils to prepare a basic meal are supports for the participant. Accordingly, section 34(1)(f) is not met.
Volkswagen Caravelle Van
The Mother seeks a Volkswagen Caravelle vehicle. In the alternative, she seeks to rent, rather than purchase the vehicle.
Item 6(b) of the Schedule 2 of the Transitional Supports Rules excludes motor vehicles from being considered a NDIS support. A motor vehicle is not a NDIS support and section 34(1)(f) is not met.
Item 6(g) of Schedule 1 of the Transitional Supports Rules includes transport assistance to participants who cannot travel or use public transport independently. This includes transport to community-based activities, school and costs associated with the use of taxis.
The Mother did not specify any particular activities for which a rented vehicle would be used to transport the Applicant. Rather, the Tribunal understands she was seeking to rent the vehicle full time. The Tribunal observes that the form of expenditure does not change the nature of the support and therefore vehicle rental is also excluded by Item 6(b) of Schedule 2.
The Respondent further contends that the transport of children is a reasonable support for parents to provide pursuant to section 34(1)(e). The Tribunal agrees.
Cleaning
The Applicant has been funded 3 hours per week for cleaning.
Item 23 of Schedule 1 of the Transitional Supports Rules states:
Supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability. This includes the following:
(a)Meal preparation and delivery
(b)House or yard maintenance
(c)Cleaning and laundry
The Respondent contends that the request for cleaning support is premised, not on the Applicant being unable do it himself, but rather, the need for more cleaning because of his disability.[331] The Respondent further contends there is insufficient evidence available to separate out the Applicant’s cleaning support needs from the rest of the family’s needs.
[331] A12 of JHB3, p277.
In the Respondent’s further submissions, it is contended that sections 34(1)(aa), (b), (c),(e) and (f) are not met.
In relation to the last point, the Respondent notes that the requirement under item 23 (household tasks) of Schedule 1 to the Transitional Rules is for supports (such as cleaning) to provide assistance with essential household tasks that a participant is not able to do themselves because of their disability are NDIS supports.[332]
[332] Respondent’s further submissions dated 21 July 2025, p1.
The Tribunal considers that although many 13-year-old adolescents do not necessarily undertake significant chores around the home, they do not create the same level of mess or need for cleaning as the Applicant. There was clear evidence that the Applicant has toileting accidents in his bed, that he gets poo on his hands and touches other surfaces, has difficulty wiping his bottom and splashes water around in the bathroom. He also drops food in and around the kitchen when eating.
In these circumstances, the Tribunal is satisfied that because of his disability, the Applicant does create more mess, and by necessity, more cleaning that is distinguishable from the rest of the family. The Tribunal is also satisfied that because of his disability, he is unable to wash his sheets, clean up poo, dry the bathroom after his bath, wipe kitchen surfaces and clean the kitchen floor.
However, the Tribunal considers that incidental cleaning and tidying up after the Applicant already forms part of the support worker hours found to be reasonable and necessary for the Applicant. Support worker records indicate they routinely tidy up after the Applicant, particularly in the morning and provision for this is already incorporated into the 2 hours of personal care in the morning and 2 hours for personal care in the evening on weekdays. Ideally, the Applicant should be encouraged to assist with some of these tasks as part of day-to-day capacity building and active support.
To that extent, cleaning is a duplication of supports and is prohibited by Rule 5.1(c).
Car seat x 2 (Carrot 3000)
Ms Middlebrook first recommended a Carrot 3000 car seat for the Applicant in her report dated 23 April 2024:
[The Applicant] displays severe behaviours of concern while traveling in the car such as unbuckling his seatbelt and moving around in the car, opening the car door, winding down windows, pressing buttons, pulling at the gear stick, and kicking, hitting, pinching, and spitting at others also in the car. For [the Applicant’s] safety and the safety of others, it is vital [the Applicant] receive the necessary funding to provide him with 2 x Small Carrot 3000 Car Seats (one for his family car and the other for the school bus). Lower cost alternatives do not provide the required safety features and accessories needed for [the Applicant’s] safety while in the car.[333]
[333] A17 of JHB1, p87-88.
In her oral evidence, Mr Middlebrook explained that the main reason for recommending the car seat was for postural support and not for behaviour.
Counsel suggested to Ms Middlebrook that there was no mention of postural support in her first letter dated 23 April 2024 regarding the car seat, which focused on the Applicant’s safety arising from behaviours of concern. Ms Middlebrook insisted she referenced postural support in a letter prior to the 23 April 2024. She was unable to locate the document while giving her oral evidence. Ms Middlebrook was invited to send it to the Respondent’s lawyers and the Tribunal; however this evidence was not forthcoming.
In her oral evidence, Ms Middlebrook confirmed the car seat would not address behaviours – he could still pinch, pull hair and kick. However, she insisted the car seat was for the Applicant’s safety and the safety of those around him. She conceded that she had not considered a dividing screen to help mitigate the impact of behaviours on the driver.
Ms Middlebrook observed one attempt to use a Houdini harness on the Applicant and was of the view that a harness was not appropriate. She gave evidence the Applicant sat in the Carrot 3000 seat but they were unable to go for a drive for insurance reasons.
Ms Rutherford provided the following description of the Applicant’s seated position:
During the assessment, [the Applicant] typically sat with significant posterior pelvic tilt, and in a twisted position with his knees rotated to left, and his feet under his thighs. This was observed both when sitting on a chair and on the floor. Clinically, this positioning is typically observed when a person requires a wider base of support to provide stability due to poor core strength… Providing seating with more postural supports may improve his sitting posture and comfort and subsequently enable him to sit longer, however, this would need to be trialled as it is likely this has now become his preferred sitting position, and he would resist the introduction of any positioning supports that impact his legs.[334]
[334] R10 of JHB3, p199.
When in the car, Ms Rutherford noted the Applicant requires a buckle guard to prevent him from removing his seat belt – a legal requirement for travel in a vehicle.
The parents informed Ms Rutherford that they had recently obtained a Houdini Harness. It has anti-submarining straps to prevent the Applicant from sliding down the seat. She noted that while the Houdini Harness may not be ideal for positioning, it may have positive effects on behaviour and is unlikely to cause any harm given the amount of time the Applicant spends in the car. One model includes additional car tether straps, enabling easy and cost-effective use across multiple vehicles. Ms Rutherford acknowledged that putting on the harness may trigger behaviours of concern, particularly if the Applicant doesn’t want to go somewhere.[335]
[335] R10 of JHB3, p199-200.
In relation to the Carrot 3000 car seat, Ms Rutherford noted this seat would inhibit the Applicant from adopting his preferred leg position, which could also trigger behaviours of concern. “He will need to cooperate to get into the seat and allow the 5-point harness to be secured.[336] Ms Rutherford noted that Ms Middlebrook’s reported dated 16 August 2024 did not state that a Carrot 3000 had been trialled with the Applicant. She thought it important to trial the seat to ensure he tolerates the seated positioning.[337]
[336] R10 of JHB3, p200.
[337] R10 of JHB3, p200.
The Father indicated to the Tribunal that he thought the Houdini Harness made the most sense in terms of being able to use it across multiple vehicles.
The Respondent submitted Ms Middlebrook had not worked through the options to ensure the least restrictive practice was identified. In the Respondent’s submission, when assessing options, there needs to be a clear weighting of safety issues alongside the least restrictive practice.
The Tribunal is not satisfied on the evidence that the Carrot 3000 was recommended by Ms Middlebrook for postural reasons. The Tribunal is not satisfied that the Carrot 3000 is the least restrictive practice nor the most effective in terms of mitigating the Applicant’s behaviours. It would seem a safety screen may prove to be a more effective measure in terms of creating a physical barrier between the Applicant and the driver.
Given the safety issues raised in this application, it is unclear why the minimum safety requirement to prevent the unbuckling of the Applicant’s regular seat belt while travelling has not been implemented and included in the behaviour support plan.
The Tribunal is not satisfied the Carrot 3000 x 2 is effective and beneficial having regard to good practice which includes identifying the least restrictive practice. Section 34(1)(d) is not met. Further, to the extent that the request is premised on the Applicant’s behaviours associated with severe emotional dysregulation, section 34(1)(aa) is not met.
Request for an apology and compensation from the Respondent
The Respondent submits that the Tribunal has no jurisdiction to consider these matters because under section 103 of the NDIS Act, the decision before the Tribunal relates to a decision about the Applicant’s SOPS made pursuant to section 33(2) of the NDIS Act.
The Tribunal agrees.
CONCLUSION
The Tribunal understands the Mother may find parts of this decision confronting. The Tribunal acknowledges that there are a range of stressful factors impacting the Mother’s life and does not seek to diminish the love, care and support that she has provided to the Applicant and her other children over many years. The Tribunal hopes that the end of these proceedings combined with the funded supports will enable the family to move forward in a way which promotes Applicant’s continued development, independence, wellbeing, and safety.

Date(s) of hearing: 22 - 25 June, 1 August and 4 September 2025 – by video

Applicant: Applicant’s mother

Counsel for the Respondent: Dr Michael Taylor

Solicitors for the Respondent:
Moray & Agnew Solicitors

Annexure A: Overview of Relevant Law
Amendments to the National Disability Insurance Scheme Act

The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Amending Act) came into force on 3 October 2024. Significant changes includes the following:
(a)Section 10 introduced a definition of NDIS support.
(b)Section 34(1)(aa) provides that a support must be necessary to address needs arising from an impairment in relation to which the participant meets the disability or early intervention requirements.
(c)Section 34(1)(f) stipulates a support must be a NDIS support.
Item 129(1) of Schedule 1 of the Amending Act specifies that changes to sections 33, 34 and 35 apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after commencement.
The Minister also made transitional rules which accompany changes to the NDIS Act and take effect from 3 October 2024.
The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Supports Rules) outline supports that are and are not considered NDIS supports for the purposes of section 10 of the NDIS Act. Section 10(2) of the NDIS Act provides that when making rules for the purposes of declaring what are considered NDIS supports, the Minister must be satisfied that the support is appropriately funded or provided through the NDIS.
Further, the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Transitional Miscellaneous Rules) require the decision-maker to also be satisfied that the support is most appropriately funded or provided through the National Disability Insurance Scheme and not another service system.
The Amendment Act does not provide for any changes to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) and they continue to apply.
There are a range of other rules which may apply to an application for review and will be discussed where relevant in the reasons for decision.
National Disability Insurance Scheme Act 2013
The NDIS was established under the NDIS Act. Section 3 sets out the objects of the Act and Section 4 identifies the general principles guiding actions taken under the Act.
For example, sections 3(1)(c), (e) and (g) relevantly state the objectives of the Act are to support the independence and social and economic participation of people with disability, enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
Section 4 principles include:
(a)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development (section 4(1));
(b)People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability (section 4(2));
(c)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. (section 4(3));
(d)…
(e)People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation (section 4(6));
…
Access to the NDIS
A person must meet the access criteria to become a participant of the NDIS (section 21) which includes that the person was aged under 65 when the access request was made (section 22), that they meet the residence requirements (section 23) and either meet the disability requirements (section 24) or early intervention criteria (section 25).
Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made an access request on or after 3 October 2024.
Section 24 of the Act states:
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person’s lifetime, despite the episodic or fluctuating nature of the impairments.
(4) Subsection (3) does not limit subsection (2).
Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).
Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

If the Applicant does not meet the disability requirements, the Tribunal must consider whether the Applicant meets the early intervention requirements set out in section 25 of the Act:
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer; and
(d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).
Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) (‘the Access Rules’).
In relation to the question of permanency of an impairment, the Access Rules state:
5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person’s functional capacity, including their psychosocial functioning, may improve.
5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.
In relation to substantially reduced functional capacity the Access Rules provide:
5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities—communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c))—if its result is that:
(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or
(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or
(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal, unless there is good reason not to do so.[338]
[338] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
In Mulligan v National Disability Insurance Agency [2015] FCA 544, Mortimer J held that the legislation pertaining to the access criteria requires “a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted”.[339] The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster [2023] FCAFC 11 also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.[340]
[339] Mulligan at [55].
[340] Foster at [44].
NDIS Participants and Plans
A participant’s plan comprises a statement of goals and aspirations, which is prepared by the participant (section 33(1)) and a statement of participant supports (SOPS), which is prepared with the participant and approved by the Agency (section 22(2)).
The SOPS must specify, amongst other things, the reasonable and necessary supports that will be funded under the NDIS (section 33(2)(b)).
In deciding whether to include the requested supports in the participant’s SOPS, the Tribunal must have regard to the matters set out in section 33(5) of the NDIS Act which includes consideration of section 34(1) of the NDIS Act.
The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act when deciding what supports to include in a SOPS.[341] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[342]
[341] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201].
[342] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general
supports that will be provided, and the reasonable and necessary supports that will be
funded, the CEO must be satisfied of all of the following in relation to the funding or
provision of each such support:
(aa) the support is necessary to address needs of the participant arising from an
impairment in relation to which the participant meets the disability requirements
(see section 24) or the early intervention requirements (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and
aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the
participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are
reasonable, relative to both the benefits achieved and the cost of alternative
support;
(d) the support will be, or is likely to be, effective and beneficial for the participant,
having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to
expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention
requirements need to be met is the time the CEO decides to approve the
statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to
which the participant meets the disability requirements or the early intervention
requirements may be affected by a variety of factors, including environmental
factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The term ‘reasonable and necessary support’ is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J made the following observations at [91] (prior to the amendments):
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79, considered the meaning of reasonable and necessary supports:
[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.[343]
[343] WRMF at [149]-[151].
Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary including whether they represent value for money, are effective and beneficial having regard to good practice and take account of what is reasonable to expect families to provide.
Rule 3.1 regarding value for money (section 34(1)(c)) states:
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications;
(ii) whether there are any expected changes in technology or the participants 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).[344]
[344] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).
Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Rule 3.4 outlines the matters to be considered when assessing what is reasonable to expect families, carers, informal networks, and the community to provide under section 34(1)(e).
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and
(ii) whether, because of the child’s disability, the child’s care needs are
substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or
carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s
wellbeing;
(b) for other participants:
(i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and
(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
(A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
(B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
(C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
(iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Part 5 contains general criteria regarding supports and supports that will not be funded. Rules 5.1 and 5.2 provide:
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would no otherwise incur.
5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support will be provided;
(b) a support that consists of income replacement.

See

[2025] ARTA 1956

30 September 2025

Key Legal Topics

Areas of Law

Administrative Law

Disability Law

Legal Concepts

Judicial Review

Reasonable and Necessary Supports

Overutilisation of Funds

Transitional Supports Rules

Severe Emotional Dysregulation

Support Worker 1	Support Worker 2
1. Support [the Applicant] to choose what he wants to eat for breakfast. This would involve [the Applicant] going to the fridge and pulling out what he likes and wants. Encourage [the Applicant] to choose food that is recommended by the dietician and speech therapist.	143. 1. Prepare food items for [the Applicant], ensuring they are easy to manage.
144. 2. Assist [the Applicant] in sitting at the table, using verbal prompts: “Let’s sit and have breakfast together!” Be aware that [the Applicant] will try to get every bit of utensils out of the cupboard and dump it. He needs encouragement to only get one out. Show [the Applicant] how to use utensils and guide his hand if needed (hand-over-hand for the spoon).	145. 2. Show [the Applicant] how to pour milk into the cereal or spread butter on bread, allowing him to participate where possible.
146. 3. Encourage him to take one bite at a time, celebrating every success (“Great job, [name]! Let’s take another bite.”)	147. 3. Physically assist with serving food onto [the Applicant’s] plate.

Date(s) of hearing:	22 - 25 June, 1 August and 4 September 2025 – by video
Applicant:	Applicant’s mother
Counsel for the Respondent:	Dr Michael Taylor
Solicitors for the Respondent:	Moray & Agnew Solicitors