CKPN and National Disability Insurance Agency

CKPN and National Disability Insurance Agency [2022] AATA 4397 (30 November 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s):2021/5061
Re:CKPN
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member K. Parker (presiding)
Member T. Bubutievski
Date:30 November 2022
Date of written reasons: 30 November 2022
Place:Sydney

The Tribunal sets aside the Decision Under Review and remits this matter for reconsideration by the Respondent with a direction that on or before 14 December 2022, the Respondent facilitate the approval of a new statement of participant supports (SOPS) for the Applicant, CKPN, containing the following:
1.    a provision specifying that the reassessment date is to fall on the 12 month anniversary of the date of approval of a new SOPS for CKPN under this remittal;
2.    a provision specifying that all funding under the new SOPS for CKPN is to be “plan-managed”;
3.    the approval of funding for the following supports:
a.    the provision of support worker assistance to CKPN during school terms of 31.5 hours per week at the weekday daytime rate, and during periods that do not fall during school terms, of 15 hours per week at the weekday, daytime rate;
b.    48 hours of services or therapy to be provided by a paediatric psychiatrist and/or paediatric clinical psychologist including the time required to undertake appropriate assessments and to write progress reports;
c.     12 hours of psychological therapy and assessment by her treating registered psychologist, P1;
d.    27 hours of speech pathology, including the time required to undertake assessments and write progress reports;
e.    48 hours of occupational therapy including the time required to undertake assessments and write progress reports;
f.   20 hours of clinical leadership by an allied health professional as part of a multi-disciplinary team as determined by the members of CKPN’s treating team in accordance with CKPN’s needs; noting the recommendations that this team should be led by a Paediatrician or Occupational Therapist; and
g.    replication, on a pro basis, of all other existing supports in CKPN’s current SOPS except for the supports referred to in subparagraphs 3a. to f. above.

..............................[SGD]..........................................
Senior Member K. Parker and Member T. Bubutievski
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of decision relating to approval of Applicant’s statement of participant supports (SOPS) under his NDIS plan – child participant has severe gastro-oesophageal reflux disease (GORD), redundant length colon with poor gut motility, avoidant/restrictive food intake disorder, sensory processing issues, insomnia with underlying anxiety disorder, and chronic pain – request for additional funding for allied health interventions and support worker assistance – whether “reasonable and necessary supports” criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) are met – Tribunal satisfied that most, but not all, requested supports meet those criteria and should be included in Applicant’s SOPS – Decision Under Review set aside and remitted with direction to facilitate the approval of a new SOPS for the Applicant
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Re CKPN and National Disability Inusrance Agency [2021] AATA 3447
FRCT and National Disability Insurance Agency [2019] AATA 1478
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Secondary Materials
American Pyschiatric Assocation: Diagnostic and Statisical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association 2013 (DSM-V)
NDIS Operational Guidelines - Reasonable and necessary supports | NDIS
REASONS FOR DECISION
Senior Member K. Parker
Member T. Bubutievski
30 November 2022
INTRODUCTION

The Applicant, CKPN,[1] is a four-year-old child participant of the National Disability Insurance Scheme (NDIS). When this application was first lodged, CKPN sought review of a decision made on 19 July 2021 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), affirming a decision made on 4 May 2021 under s 33(2) of the NDIS Act to approve a statement of participant supports (SOPS) forming part of CKPN’s NDIS plan. On 27 July 2022, following a remittal by the Tribunal under s 42D of the Administrative Appeals Tribunal 1975 (Cth) (AAT Act), the Respondent, National Disability Insurance Agency (NDIA), made a decision to approve a further statement of participant supports resulting in the commencement of a further NDIS plan for CKPN. CKPN elected to proceed with this application and the remittal decision became the decision under review in this proceeding.
[1] Refer paragraph [5] of these Reasons for Decision.
The Tribunal’s jurisdiction to review this application arises under s 25(1) of the AAT Act, operating in conjunction with s 103 of the NDIS Act.
CKPN was granted access to the NDIS on the basis that she met the “early intervention requirements” under s 25 of the NDIS Act, as well as the age requirements and residency requirements under ss 22 and 23 of the NDIS Act respectively. A request was made on behalf of CKPN that this application proceed with expedition. The NDIA sought to arrange an independent assessment of CKPN by a child psychiatrist and occupational therapist. Given the early intervention supports being requested, and the connection between those supports and ongoing health of CKPN in respect of her nutritional intake and resulting growth, the Tribunal granted the request for expedition and the hearing took place as soon as practicable on 1 to 3 February 2022 inclusive. At this time, the primary reason for granting expedition was that CPKN was seeking funding to participate in an intensive feeding program (IFP) to assist her. As explained below, the NDIA subsequently agreed to fund this support, following an exchange of correspondence between the parties and the Tribunal, and CPKN has now completed the IFP. The parties remain in dispute about whether further funding should be approved to provide CPKN with additional hours of support worker assistance and allied health intervention.
CKPN was represented in this proceeding by her mother (Ms CKPN) and father (Mr CKPN) (referred to collectively as the Parents).[2] Both Parents are practising Australian lawyers and were the main advocates for CKPN at the hearing. The Parents received some support from a disability advocate, Mr Nabil Mohammad, but the assistance provided by him at the hearing was minimal. The Parents were competent and effective when articulating and arguing CKPN’s case before the Tribunal.
[2] They both have parental responsibility for CKPN (within the definition of s 75(1)(a) of the NDIS Act) and for this reason, by operation of s 74(1)(a) of the NDIS Act, they may do the things permitted to be done by or in relation to CKPN under the NDIS Act.
At the hearing, the Respondent was represented by Ms Melissa Fisher of counsel.
The Parents applied for confidentiality orders to be made under s 35 of the AAT Act. Given this application involves a child participant of the NDIS, the Tribunal made such orders the effect of which is to maintain the confidentiality of the Applicant. In accordance with those orders, the pseudonym, CKPN, is used in place of the Applicant’s name in this Decision and Reasons for Decision. The Tribunal has also omitted or anonymised other information in these Reasons for Decision that might lead to the identification of CKPN. To implement this measure, the Tribunal has used a further set of pseudonyms in place of the names of certain persons (such as the medical and clinical experts and persons from CKPN’s preschool), in accordance with the legend set out in Confidential Annexure A to these Reasons for Decision.
BACKGROUND
CKPN has been a participant in the NDIS since 2018, when it was determined that she met the “early intervention” requirements set out in s 25 of the NDIS Act.
CKPN lives with her Parents and her maternal grandmother in Sydney, New South Wales. CKPN began attending a mainstream preschool in May 2021 and in about February 2022 had increased her number of attendance to three days per week, with support from a support worker who attends preschool with her. On 31 October 2022, the Parents confirmed she had consistently attended preschool three days per week since 2022. The Parents intend for CKPN to transition to a mainstream primary school in 2023.
CKPN’s treating paediatric gastroenterologist, PGE1, has diagnosed CKPN with the following conditions:
(a)severe chronic gastro-oesophageal reflux disease (GORD);
(b)cow’s milk/soy protein intolerance and allergic colitis;
(c)bile reflux induced gastritis; and
(d)redundant length colon.[3]
[3] Refer T-Documents T1H.
PGE1 says that CKPN is:[4]
…in a large cohort of my dysmotility patients who have a cluster of slow motility, hypermobility, redundant length colon and anxiety. Therefore our focus is not just the aggressive medical treatment, it has also been aggressive ongoing early intervention of occupational therapist/speech pathology/psychology input in order to improve on [CKPN]’s management.
[4] Refer Exhibit R3, Letter of PGE1, 14 January 2022.
CKPN’s treating paediatric sleep physician, PSP1, has diagnosed CKPN with chronic insomnia disorder with underlying anxiety disorder.[5]
[5] Refer Exhibit A2, page 173, Letter of PSP1, 14 September 2021.
CKPN’s treating clinical psychologist, CP1, has diagnosed CKPN as suffering from chronic pain.[6]
[6] Refer Exhibit A2, page 175, Letter of CP1, 11 June 2020.
CKPN’s treating allied health professionals also include:
(a)a registered psychologist, P1;
(b)an occupational therapist, OT1; and
(c)a speech pathologist, SP1.
CKPN takes a stool softener, OsmoLax, to assist with her bowel motions. She does not take any other prescribed medication.
First NDIS Plan – October 2018
On 10 October 2018, a delegate of the CEO of the NDIA (CEO) approved a statement of participant supports (First SOPS), resulting in the commencement of an NDIS plan for CKPN on 10 October 2018 (First NDIS Plan).[7] The First SOPS was for a notional duration of six months. This plan provided for capacity building supports for CKPN, but not for core supports. CKPN requested a review of this plan.
[7] Refer ST-Documents, page 227.
Second NDIS Plan – February 2019
On 22 February 2019, a new statement of participant supports (Second SOPS) was approved for CKPN for a notional duration of three months (Second NDIS Plan).[8] This plan included core supports for in-home assistance, as well as capacity building supports.
[8] Refer ST-Documents, page 201.
Third NDIS Plan - October 2019
By letter dated 9 October 2019, the CEO approved a further statement of participant supports (Third SOPS) resulting in the commencement of a further NDIS plan for CKPN on 9 October 2019 (Third NDIS Plan).[9] This notional duration of the Third SOPS was 12 months.
[9] Refer T-Documents, T5.
Fourth NDIS Plan – February 2020
By letter dated 11 February 2020, the CEO approved a further statement of participant supports (Fourth SOPS) resulting in the commencement of a further NDIS plan for CKPN on 11 February 2020 (Fourth NDIS Plan).[10] The notional duration of the Fourth SOPS was 12 months.
[10] Refer T-Documents,T6.
Fifth NDIS Plan – April 2020
By letter dated 21 April 2020, the CEO approved a further statement of participant supports (Fifth SOPS) resulting in the commencement of a further NDIS plan for CKPN on
[11] Refer T-Documents, T7.
21 April 2020 (Fifth NDIS Plan).[11] The notional duration of the Fifth SOPS was 12 months. This plan included both core supports (including care assistance in the home), and capacity building supports. The plan allowed for 40 hours per week of support worker assistance, early childhood intervention, 35 days of attendance at a feeding program, behaviour management, dietitian consultation and diet plan development, and support coordination. The total approved funding in this plan was $117,164.60 in core supports, and a further $65,216.64 for capacity building supports, over the notional plan period of 12 months.
Sixth NDIS Plan – May 2021
By letter dated 4 May 2021, the CEO approved a further statement of participant supports (Sixth SOPS) resulting in the commencement of a further NDIS plan for CKPN on
[12] Refer T-Documents, T8.
4 May 2021 (Sixth NDIS Plan).[12] The notional period of the Sixth SOPS was 12 months. This plan included capacity building supports only for the provision of early childhood intervention, using a “key worker” model which may include a psychologist or physiotherapist. It also included support coordination for only three months, with the intention that support coordination be handed over to the Parents. The total plan value was $20,947.65. There was no provision in the Sixth SOPS for core supports, and in particular no provision for a support worker or therapy assistant. There was also no provision for an intensive feeding therapy program, although such a program had been approved in the previous plan (but had not yet been accessed).
Internal review decision – July 2021
On 24 May 2021, CKPN’s mother made a written request for an internal review under s 100 of the NDIS Act to be undertaken in relation to the Sixth SOPS.[13] In this request, Ms CKPN sought funding for the following supports:
(a)$1,000 for low cost, low risk assistive technology items;
(b)50 hours of support worker assistance per week;
(c)speech therapy, psychology, and occupational therapy, as per the respective recommendations in reports by treating professionals;
(d)intensive feeding therapy;
(e)support coordination, as per the funds provided in the Fifth NDIS Plan; and
(f)funding for a paediatric dietitian and nutritionist.
[13] Refer T-Documents, T1J.
Ms CKPN also sought a change in plan management from “plan-managed” to “self-managed”, and a change to the description of CKPN’s goals and aspirations as stated in the Sixth Plan.
On 19 July 2021, a “reviewer” made an internal review decision under s 100 of the NDIS Act, affirming the decision to approve the Sixth SOPS (Decision Under Review).[14] The reviewer considered that the requested supports did not meet the “reasonable and necessary” criteria under the NDIS Act.[15] The reviewer was also of the opinion that the statement of goals and aspirations contained in the plan were not a reviewable decision within the meaning of s 99 of the NDIS Act and therefore, were not part of the internal review under s 100 of the NDIS Act.
[14] Refer T-Documents, T1M
[15] Ibid.
AAT application for review
On 23 July 2021, the Parents signed and lodged an AAT Application for Review of Decision form (Application Form) with the Tribunal seeking that CKPN’s Fifth Plan be “reinstated”, to “continue her progress and gains in early intervention”.[16]
[16] Refer T-Documents, T1.
Seventh NDIS Plan – October 2021
The CEO approved a further statement of participant supports (Seventh SOPS) resulting in the commencement on 26 October 2021 of a further NDIS plan for CKPN (Seventh NDIS Plan).[17] The notional duration of the Seventh SOPS is six months. This plan incorporates the changes to the statement of goals and aspirations sought by Ms CKPN. This plan contains core funding of $37,559.38 (equivalent to $75,118.76 per annum), including for flexible support with daily activities within the home. It also contains capacity building funding for skills development by allied health therapeutic interventions. The total capacity building funding approved was $12,192.24 (equivalent to $24,384.48 per annum). The plan specified that the approved funding for core supports was to be “plan-managed”, the funding for improved daily living was to be “self-managed”, and the funding for support coordination was to be “NDIA-managed”.
[17] Refer Exhibit R2. The Seventh SOPS and Seventh Plan was lodged at the time of the final hearing.
Eighth NDIS Plan – July 2022
While this matter was reserved the Parents wrote to the Tribunal and the NDIA and explained that an offer of a placement had come up in the IFP, for which CKPN was seeking funding. In the Parents’ email of 20 July 2022, they requested that the Tribunal make a decision in relation to this support only and decide upon the other supports in dispute at a later stage.[18] The Tribunal wrote back to the parties to indicate that it did not consider that it had the power under the AAT Act to decide this matter in part and instead, that it was required under s 43(1) of the AAT Act to affirm, vary, or set aside the Decision Under Review. Given the urgency of this situation and the IFP being sought was an early intervention support, the Tribunal foreshadowed its expectation that it was likely to make a finding that this support was a “reasonable and necessary support” under s 34(1) of the NDIS Act. Once that indication had been provided to the parties, the NDIA of its own volitiion decided that it would approve a new SOPS for CKPN to include funding for the IFP, and sought a remittal. The Tribunal granted this request and remitted this proceeding under s 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
[18] The Parents, on behalf of CKPN, had sought funding for CKPN (with her Parents and one support worker), to attend a program in South Australia offered by Lively Eaters (Lively Eaters Program), whereas the NDIA considered that funding for CKPN to attend an alternative program offered by the Talbot Centre based in Sydney (Talbot Centre Program), where CKPN and her Parents live, was sufficient.
Pursuant to this s 42D remittal, the CEO approved a further statement of participant supports (Eighth SOPS) resulting in the commencement on 27 July 2022 of a further NDIS plan for CKPN (Eighth NDIS Plan).[19] The total funded supports in this plan is $124,000.16 over the plan’s notional duration of 12 months. This includes:
(a)$81,748.76 for Core Supports, including $79,748.76 “allocated for flexible support within the home, which may include, but is not limited to Assistance with personal care and assistance with other activities of daily living. Flexible funding within this budget to allow maximum choice and control”;[20] and
(b)$35,558.37 for Improved Daily Living (CB Daily Activity), within the Capacity Building Supports budget, to be used as follows:[21]
Funding for support and assistance from Allied Health Professionals for skill development, training, assessment and therapy ($17,459). Allied Health Professionals will work closely with you to increase independence. It is expected that these supports will include progress reports on outcomes of current goals/objectives and ongoing functional needs at Scheduled Review. $18099.27 for Feeding therapy as per quote from Lively Eaters Feeding Therapy
(c)$5,207.28 for support coordination services.[22]
[19] A copy of this plan was lodged with the Tribunal on 29 July 2022 and has been received into evidence and has now been marked as Exhibit R5.
[20] Refer Eighth SOPS at page 7.
[21] Ibid at page 9.
[22] Ibid.
The plan specified that the approved funding for Core Supports, Improved Daily Living Funding and Support Coordination was to be “plan-managed”, whereas the funding for Improved Life Choices was to be “NDIA-managed”. Pursuant to s 42D(4) of the AAT Act, this application is taken to be an application for review of the new decision to approve the Eighth SOPS (Decision under Review).
ISSUES
The Tribunal must undertake merits review of the Decision Under Review. The Tribunal will stand in the shoes of the original decision-maker who made a decision to approve a SOPS for CKPN, containing supports, a reassessment date, and stipulations as to how the funding and other aspects of the plan are to be managed.
The Parents’ requested supports by the end of this proceeding

A key issue in this proceeding relates to the type and level of supports that should be included in CKPN’s SOPS. Specifically, the supports remaining in dispute between the parties include the following:
(a)support worker assistance – the Parents request, on behalf of CKPN, 40 hours per week and the NDIA considers that 4.5 hours per week are sufficient;
(b)allied health therapeutic intervention, including:
(i)speech therapy – the Parents request 27 hours per annum and the NDIA considers that 12 hours per annum are sufficient;
(ii)psychological therapy – the Parents request 50 hours per annum of therapy provided by registered psychologist, P1, for Applied Behavioural Analysis (ABA) and “standard anxiety treatment”, and the NDIA considers that 48 hours of services provided by a psychiatrist and/or clinical psychologist for “insecure attachment” are sufficient;[23] and
(iii)occupational therapy – the Parents request 72 hours per annum (comprising 48 hours of single sessions and 24 hours of peer-to-peer socialisation sessions) and the NDIA considers that 48 hours are sufficient.[24]
[23] Refer CKPN’s Closing Submissions at [11].
[24] Ibid. The Tribunal notes that Ms CKPN had requested 80 hours of occupational therapy per annum when she gave evidence at the hearing, but this was changed in CKPN’s Closing Submissions to a request for 72 hours.
Reassessment date (notional duration of the plan)
CKPN’s parents requested that the notional duration of any new plan for CKPN should be 12 months. The NDIA did not object to this proposal. The Tribunal is satisfied that 12 months is an appropriate notional plan duration given that CKPN will continue to have significant support needs both in the home and in the community, including while she is in her place of learning, and specifically, as she undertakes the important transition to primary school at the start of 2023. For this reason, the Tribunal considers that the reassessment date on the new plan for CKPN should fall on the 12 month anniversary of the date of approval of the SOPS forming part of that plan.
Management of funding in plan
The NDIA contends that the entire funding in CKPN’s plan should be “plan-managed”. Originally the Parents had requested that the plan be “self-managed”. By the end of the proceeding, the Parents changed their original request indicating they were content for the entire funding in CKPN’s plan to be “plan-managed”. The Tribunal accepts the joint proposal by the parties in this regard and decides that it is appropriate that the entire funding in CKPN’s plan is to be plan-managed.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
A participant’s plan must be prepared in accordance with the NDIS Act and regulations made under s 32A of the NDIS Act. It must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules).
Section 33(5) of the NDIS Act requires that the CEO (or delegate), in deciding whether to approve the SOPS under s 33(2), have regard to a number of factors including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are “reasonable and necessary supports”.
Section 34(1) of the NDIS Act requires six mandatory criteria to be met before a support is considered to be a “reasonable and necessary support”. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision-maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.
Should a different approach be taken where participant was granted access on the basis that they met the “early intervention” requirements under s 25
In this proceeding, the Parents contend that the basis upon which a participant is granted access as a participant of the NDIS should be taken into account when a decision-maker decides whether certain supports meet the “reasonable and necessary supports” criteria under s 34(1) of the NDIS Act. Or, in other words, this is the “prism” through which the decision-maker should make their decision. The Parents contend that the basis upon which a participant is granted access is a “necessary context”, given that a person who becomes a participant under the “early intervention” requirements is only required to establish that they have a “developmental delay”, not a “disability”.[25]
[25] Refer CKPN’s SFIC, Pages 1, 21-22 & 30; CKPN’s Opening Statement, Pages 1 & 21-50 & CKPN’s Legal Reply.
The NDIA drew the Tribunal’s attention to judicial reasoning in the Federal Court of Australia decision in Mulligan v National Disability Insurance Agency [2015] FCA 544 (Mulligan), in which Mortimer J stated:[26]
It is clear from the legislative scheme that the decision whether a person is or is not a participant is the threshold decision under the scheme, and the decision which enables access to the majority of benefits and funding available under the NDIS. However, what benefits and supports are provided, and how they are funded is subject to a separate decision-making process.
[26] Refer paragraph [34].
The NDIA contends that this constitutes clear Federal Court authority that the statutory task of deciding whether access to the NDIS should be granted, and the statutory task of deciding what are the reasonable and necessary supports to be funded in the statement of participant supports, are to be kept separate. The NDIA also references the reasoning in National Disability Insurance Agency v WRMF [2020] FCAFC 79, that further supports the view that s 25 of the NDIS Act should not inform how section 34(1) of the Act should be applied.[27]
[27] Refer NDIA’s Legal Closing Submissions, Pages 1-2.
Mortimer J in Mulligan held that:[28]
Threshold provisions such as section 24 operate not on the concept of disability, but on the concept of impairment, which … is generally understood as involving the loss of or damage to a physical, sensory or mental function.
[28] Refer paragraph [51].
The Parents contend that the NDIA has put forward an erroneous view that it is necessary for “disability” to be established, rather than a “developmental delay”; and it appears to hold contradictory positions about this.[29]
[29] Refer CKPN’s Opening Statement, Page 1; CKPN’s Legal Reply, Page 1.
The Tribunal is satisfied that the existing authorities as referred to above make it clear that there are two, quite distinct, decisions to be made in relation to scheme participants. The first is whether they meet the threshold access requirements under ss 21 of the NDIS Act (First Decision). In this case, there is no dispute that CKPN has been granted access to the NDIS on the basis that she meets the threshold for participation in the scheme under the early intervention criteria in s 25. The second, and separate, decision, is what supports are reasonable and necessary supports for that person in the context of the available evidence which should be included in their SOPS (Second Decision). The Tribunal considers that how a participant entered the scheme does not inform the Second Decision or the NDIS Act would have specified as such. Having said that, the Tribunal must consider the nature and severity of a participant’s functional impairments as part of assessing their specific disability-related support needs. The decision the Tribunal is required to make as part of reviewing this application is the Second Decision, and it rejects the Parents’ contention that it should do so through the prism of the outcome of the First Decision.
EVIDENCE AND SUBMISSIONS
Hearing and witnesses
The Parents both gave evidence at the hearing. The following additional eight witnesses were called to give oral evidence at the hearing:
Called by the Parents
(a)the Director of the pre-school attended by CKPN, (PS Director);
(b)SW1;
(c)PGE1;
(d)P1;
(e)OT1; and
(f)SP1;
Called by the NDIA
(g)an independent psychiatrist who conducted an independent assessment of CKPN in a clinical setting (IP1); and
(h)an independent occupational therapist (IOT1), who conducted an independent “in-home” assessment at CKPN’s home.
Documentary evidence
Both parties in this matter did not show any restraint or judgment when selecting the volume of documentation to be placed before the Tribunal. Collectively, the parties lodged in excess of 4,000 pages of evidence, summonsed documents, and submissions. Toward the end of the proceedings, it became appropriate for the Tribunal to impose page limits on the number of pages of submissions that the parties were permitted to lodge with the Tribunal. This approach in review proceedings before the Tribunal is unwelcome and is likely to cause delays. The parties should bear this in mind in the event that they are involved in future review proceedings before this Tribunal. Further, in the course of bringing the matter to hearing the Respondent requested the issue of 16 summons. The Parents opposed this request. On 22 September 2022 the Tribunal made an interlocutory decision to issue most of the requested summons on the basis that they cold reasonably be expected to shed light on the issues to be determined in the application: see CKPN and National Disability Inusrance Agency [2021] AATA 3447. In this decision, the Tribunal noted that “both parties have approached this proceeding to date in an overly adversarial manner”.[30] The Tribunal reminded the parties that an expedited hearing had been granted in the matter and they needed to act in a collaborative and non-adversarial manner to take best advantage of that expedition. Nonetheless, this adversarial approach continued from both parties in the substantive hearing and subsequent to hearing, despite the Tribunal’s comments in this regard in the interlocutory decision.
[30] Refer CKPN and National Disability Insurance Agency [2021] AATA 3447 at [12].
Pursuant to its obligations under ss 37 and 38AA of the AAT Act, the NDIA lodged a set of documents on 19 August 2021 (T-Documents) comprising 273 pages, and a further set of documents on 5 October 2021 (ST-Documents) comprising a further 240 pages.
The NDIA lodged a hearing tender bundle (NDIA’s Tender Bundle), comprising 980 pages, including (among other things) the reports resulting from the independent assessments of CKPN and the following further documents:[31]
(a)extract from NDIS website in relation to education (NDIS Education Webpages);
(b)publication entitled “Commonwealth Department of Education – Disability Standards for Education” (Commonwealth Disability Standards);
(c)publication entitled “Commonwealth Department of Education – Disability Standards for Education Fact Sheet” (Commonwealth Disability Standards Fact Sheet);
(d)publication entitled “NSW Department of Education – Adjustments to teaching and learning” (NSW Education Adjustments);
(e)publication entitled “NSW Department of Education – Personalised learning and support” (NSW Education Learning and Support);
(f)publication entitled “NSW Department of Education – High learning support needs funding guidelines” (NSW High Learning Support Guidelines);
(g)publication entitled “NSW Department of Education – Disability and inclusion program guidelines” (NSW Disability and Inclusion Guidelines); and
(h)publication entitled “The NDIS and its interface with school education” (NDIS and School Education).
[31] Refer Exhibit R1.
In addition, the NDIA lodged a large number of documents produced under summons and combined into a summons tender bundle (Summons Bundle), comprising 1,997 pages.[32]
[32] Refer Exhibit R3.
The NDIA also lodged an email dated 11 March 2021 in relation to CP1, and CKPN’s NDIS plan which commenced on 26 October 2021.[33]
[33] Refer Exhibit R2 & R4.
The Parents relied up on the following documentary evidence:
(a)expert reports prepared by SP1 dated 21 December 2021[34] and 31 January 2022;
[34] Refer Exhibit A1.
(b)email from the Parents to PS Director dated 26 November 2021;[35]
[35] Refer Exhibit A3.
(c)expert reports prepared by PSP1 dated 14 September 2021, 21 December 2021, and 30 January 2022;
(d)CKPN’s Tender Bundle lodged on 31 January 2022 (CKPN’s Tender Bundle), comprising 980 pages, containing, among other materials:[36]
[36] Refer Exhibit A2.
(i)a comprehensive portfolio of academic papers and support materials;
(ii)National Guidelines, Best Practice in Early Childhood Intervention, Early Childhood Intervention Australia, February 2016;
(iii)National Guideline for the Assessment and Diagnosis of Autism Spectrum Disorders in Australia, Autism CRC, October 2018;
(iv)two witness statements by Ms CKPN dated 25 October 2021 and
31 January 2022;
(v)witness statement by Mr CKPN dated 30 January 2022;
(vi)witness statement by SW1 dated 16 November 2021;
(vii)
two witness statements by PS Director dated 15 December 2021 and

28 January 2022;
(viii)expert report prepared by CP1 dated 11 June 2020;
(ix)an expert report prepared by PSP1 dated 14 September 2021;
(x)two expert reports prepared by SP1 dated 21 December 2021;
(xi)initial assessment report by Paediatric Speech Pathologist, Lively Eaters, and quote dated 13 December 2021;
(xii)expert report prepared by Speech Pathologist, Feeding Specialist, The Talbot Centre, dated 20 October 2021;
(xiii)letter by PGE1 dated 14 January 2022;
(xiv)expert report prepared by OT1 dated 14 January 2022;
(xv)Consumer Medicine Information statement for fluoxetine hydrochloride (Prozac);
(xvi)Daily Schedule – hours of support beyond that of a child the same age; and
(xvii)Weekly Schedule – Allocation of Hours.
The Tribunal also had before it a set of emails and documents in response to joint questions asked by the parties from the In-Home Care Support Agency (IHCSA) in relation to the eligibility of CKPN’s family for support for CKPN under the In-Home Care Program.
Submissions
The following submissions were lodged by the parties in this matter:
(a)CKPN’s statement of facts, issues and contentions dated 16 November 2021 (CKPN’s SFIC), comprising 34 pages;
(b)CKPN’s written opening submissions lodged on 1 February 2022 (CKPN’s Opening Statement), comprising 38 pages;
(c)NDIA’s statement of facts, issues and contentions dated 29 October 2021 (NDIA’s SFIC), comprising 36 pages;
(d)NDIA’s further submissions dated 24 December 2021, comprising 10 pages;
(e)NDIA’s further submissions dated 24 January 2022, comprising 18 pages;
(f)NDIA’s submissions in relation to plan management dated 27 January 2022, comprising 12 pages;
(g)NDIA’s closing submissions on substantive issues dated 16 March 2022 (NDIA’s Closing Submissions), comprising 15 pages;
(h)CKPN’s outline of closing submissions lodged on 17 March 2022 (CKPN’s Closing Submissions), comprising 15 pages;
(i)NDIA’s closing submissions on legal issues dated 16 February 2022;
(j)CKPN’s submissions in reply on the legal issues lodged on 23 June 2022;
(k)CKPN’s submissions in reply on the substantive issues lodged on 23 June 2022 (CKPN’s Reply Closing Submissions);
(l)CKPN’s submissions seeking a standalone decision on the intensive feeding program dated 20 July 2022 (CKPN’s IFP Submissions);
(m)NDIA’s submissions in reply in respect of the intensive feeding program dated 20 July 2022 (NDIA’s IFP Submissions); and
(n)CKPN’s further submission on 31 October 2022 providing information as to CKPN’s participation in the Lively Eaters IFP.
CKPN’s MEDICAL AND CLINICAL BACKGROUND
The Tribunal will start by outlining some of the medical and clinical background in relation to CKPN’s medical conditions, gastrointestinal dysfunction, feeding aversion, emotional regulation and mental health issues, pain and sleeping issues.
Evidence by treating Paediatric Gastroenterologist – PGE1
The Tribunal had before it a letter from CKPN’s longstanding treating gastroenterologist, PGE1, dated 11 March 2021 (PGE1’s Letter),[37] and his expert report dated 14 January 2022 (PGE1’s Report).[38] In PGE1’s Letter he states that CKPN’s medical conditions included Chronic GORD, redundant length colon, cow’s milk/soy protein intolerance and feeding aversion. PGE1 states he has been treating CKPN since she was four months old. He refers to extensive investigations including an endoscopy which had confirmed chronic oesophageal reflux, bile reflux induced gastritis and (radiologically proven) redundant length colon. He confirms that these conditions have led to “severe feeding aversion, sleep disturbance and a degree of developmental delay”.[39]
[37] Refer T-Documents, Page 71.
[38] Refer CKPN’s Tender Bundle, Pages 316 & 317.
[39] Refer T-Documents, Page 71.
In PGE1’s Letter he states that CKPN was being treated aggressively with “a long list of medications, dietetic input and specialised speech pathology input”. He explains that this treatment has been “to avoid invasive medical intervention including assisted nasogastric tube feeding or surgery”. PGE1 states that there had been “some improvement” but CKPN “still requires an intense degree of assistance”. The reason for this was stated to be “stooling issues due to her poor motility and a degree of anxiety”. PGE1 also states in this letter as follows:[40]
[CKPN] is likely to require further intensive psychology input from Clinical Psychologist [CP1]. [CP1] is also part of the chronic pain team Sydney Childrens Hospital which will prove helpful as we continue to manage [CKPN’s] pain. There are concerns about sensory processing problems particularly in relation to her reflux disease so occupational therapy will also be required in the near future.
[40] Ibid.
In PGE1’s Report he provides a summary of a conversation that he had with the independent psychiatrist, IP1, as part of this proceeding. In this report, he explained that all patients suffering GORD will experience bile reflux from the duodenum back into the stomach causing symptoms. He also refers to further reflux from the stomach into the oesophagus that causes discomfort, pain and feeding difficulties. PGE1 states in the report that gastro-oesophageal reflux involves a loose lower oesophageal sphincter, and it is “essentially lifelong”. He says it is “extremely difficult to set a prognosis for as it is about managing the disease via various strategies including lifestyle, dietary intake and medication along with Allied Health therapy”.[41]
[41] Refer CKPN’s Tender Bundle, Page 316.
PGE1 states in this report that the redundant length colon causes increased symptoms in terms of abdominal pain and bloating. He states that it makes the management of constipation even more difficult. PGE1 referred to CKPN having different forms of pain including oesophageal discomfort, gastritis pain in the epigastric region and large bowel pain.[42]
[42] Ibid.
The concern with feeding aversion is whether CKPN is receiving sufficient nutrition. In PGE1’s Report, he records that CKPN was now in the 25^th percentile in terms of her growth, whereas she was previously in the 3^rd percentile. PGE1 offers the following opinion:[43]
In my opinion, any withdrawal of assistance would be detrimental to her overall health and development. In particular, it will certainly lead to deterioration in her nutritional status and potentially the need to introduce assisted feeding with enteral tubes. We are still a long way from total success as each meal takes in excess of an hour for CKPN to complete.
[43] Ibid at page 317.

At the hearing, PGE1 was asked to explain what had caused CKPN’s chronic constipation and toileting issues. He said that it was due to a genetic variant where the:[44]
…gut works in a different way so that some people have to do more in order to stay on top of their stool output … CKPN happens to have a type that, in my opinion, are quite complex and often can be quite difficult to stay on top of and it's a life-long management of it …
[44] Refer Transcript, Page 128-129.
PGE1 explained that CKPN’s feeding refusal came from discomfort and pain with feeding. PGE1 said that CKPN “does not look on feeding as enjoyable” and then, “it becomes an ongoing struggle”. PGE1 said, in his view, in CKPN's case it is not a lack of trying, but that she has so many complex factors and she looks at feeding differently to other children of her age.[45]
[45] Ibid, Page 129.
PGE1 explained that CKPN is particularly complex because she is more than “just your general motility patient with reflux and constipation problem”. He said she also has “hypermobile joint syndrome”, so all the sphincter tone and core muscle inside of CKPN is looser, and he said she has a “very redundantly long colon”. He added that she is also a “highly intelligent young lady, who has a degree of anxiety”. He said that this makes it “hard to manage her” and he explained as follows:[46]
…So every single part is a chess game that we have to keep on winning in order to get on top of this. And then you saw at the end of the year that last regression post-infection - as soon as you get a fissure, we're back to square one again. She will go straight back to withholding, and then we have to start from scratch. …
[46] Ibid, Page 147.
When asked at the hearing whether PGE1 had the condition of Ehlers Danlos Syndrome, PGE1 said it has not been excluded for CKPN, but that the management would be the same if that was the diagnosis.[47]
[47] Ibid.
PGE1 said that CKPN’s sleep disruption relates to her gut, and he explained as follows:[48]
…In her case whenever the gut is not sort of optimised with her treatment, she will then have a lot more disturbance and then after that there'll be other things that can come from just having lower iron level can all sorts of parameters leading to things like parasomnia, so then you'll start to have nightmares, night terrors and other disturbances. …
[48] Ibid, Page 129.
PGE1 was of the opinion that CKPN has pain in a number of different areas, including her upper gut and stomach, wind pain and constipation-related pain. He thought that her perception of pain was likely to be altered, and that she has the classic “chronic pain syndrome”. PGE1 said he believes that CKPN’s predisposition to pain is ongoing, but the severity and frequency of her pain is varied. He said that this is difficult to manage in “the younger age group”.[49]
[49] Ibid, Page 129-130.
PGE1 was asked about the professional opinion of IP1 that CKPN required a paediatrician “as soon as possible”, and that PGE1 would be the best person to advise on this. PGE1 said that his personal opinion is that “the best paediatrician should be found” and “not just the fastest appointment”.[50] The Tribunal notes that in PGE1’s Report, he refers to CKPN being on the waiting list to see a particular General Paediatrician and Developmental Specialist, but COVID-19 had made this more difficult.[51] At the hearing, PGE1 confirmed that CKPN was on the waiting list to see Pead1.[52]
[50] Ibid, Page 130.
[51] Refer CKPN’s HTB at page 317.
[52] Refer Transcript, Page 138.
The Tribunal asked PGE1 about CKPN’s chronic pain. PGE1 confirmed that, in his view, CKPN has a “chronic pain syndrome” and that is why a psychologist was involved in her care. PGE1 said that there is no established multi-disciplinary team that “would deal with an infant”. He said he had used the pain management team frequently but had not known them to accept a two- or three-year-old patient. PGE1 advised that the pain management team will accept children of kindergarten age, and this may be an option for CKPN in a year or two. PGE1 said that he had involved CP1, who he referred to as a psychologist who is also part of the pain management team. PGE1 gave evidence that whenever CP1 considered it was the right time to refer CKPN to the “pain service”, he would do so.[53]
[53] Ibid, Page 131.
PGE1 confirmed that he is aware that CKPN is being treated by SP1, and that he would defer to SP1 in terms of feeding strategies for CKPN:[54]
…I think [SP1's] one of two of the highest level speech pathologists who specialises in feeding difficulty and aversion in Sydney, so I almost always only use the two most experienced people in Sydney for dealing with all patients that are like [CKPN] in terms of feeding issues. …
[54] Ibid, Page 133-134.
PGE1 acknowledged that CKPN is currently “adequately nourished” and this has been achieved without tube feeding.[55] He agreed that his clinical notes indicate that he reviewed CKPN during 2019 on four occasions, and then from the beginning of 2020, CKPN went to six-monthly reviews, with some telephone calls in between if CKPN experienced trouble. PGE1 confirmed that usually, he reviews CKPN every six months, and that this is ongoing.[56]
[55] Ibid, Page 138.
[56] Ibid, Page 139.
PGE1 confirmed that he referred CKPN to CP1 in 2020, and that it remains an option to refer CKPN to the pain clinic.[57]
[57] Ibid, Page 144.
PGE1 confirmed that CKPN’s family is working very hard to avoid her having to be tube fed. He explained that tube feeding has negative consequences and will worsen the reflux and cause ongoing medical trauma. PGE1 said that he is extremely keen to continue the ongoing interventions to avoid the “more traumatic pathway”.[58]
[58] Ibid, Page 147-148.
The Tribunal notes that there is no evidence which contradicts PGE1’s evidence about CKPN’s medical needs. He said there is no prospect of any significant remission in her medical symptoms, and they will continue to need to be managed on an ongoing basis. The Tribunal accepts this evidence.
Evidence by treating Psychologist – P1
At the hearing, P1 gave evidence that she is a registered psychologist and a board-certified behaviour analyst. P1 said she is a founding member of the Association for Behavioural Analysis Australia, and its current Treasurer.[59] P1 said she has a Masters of Science in Applied Behaviour Analysis in Autism.[60] P1 confirmed the contents of her written reports lodged with the Tribunal. She also confirmed that she would defer to SP1 in relation to feeding recommendations for CKPN.[61]
[59] Ibid, Page 149.
[60] Ibid.
[61] Ibid, Page 155.
P1 gave evidence of the long history of recurrent pain which had led to CKPN having “very regular and difficult experiences, from a very early age”.[62] She said when CKPN is experiencing that pain, it had resulted in anxiety for her as well as anxiety “in anticipation of that pain occurring”.[63] P1 explained that this then, “generalises to anxiety”, around the precursors to that pain such as food and sleep.[64]
[62] Ibid, Page 150.
[63] Ibid.
[64] Ibid.
P1 said that in treating CKPN, she has not solely focused on anxiety. She said she has provided support across a range of domains for CKPN and her family, “to enable better functioning”. She said this has included daily routines. P1 said they have worked on anxiety, specifically as CKPN has become older. P1 said they are also working on “skills building using principles of applied behaviour analysis”.[65]
[65] Ibid.
On questioning, P1 confirmed that she is a registered psychologist, not a clinical psychologist. She considers that she is able to make diagnoses of conditions “within her scope”. She said she specialises in autism, and would make this diagnosis frequently, often in conjunction with a Paediatrician. P1 said that in her opinion, in many cases, there would be no measurable difference between a registered psychologist and a clinical psychologist. When asked whether a diagnosis made by a clinical psychologist who has a masters degree is more reliable than the diagnosis of a registered psychologist, P1 said that “It would depend upon the processes that those individuals go through to determine the rationale for that diagnosis”.[66] The Tribunal does not accept this proposition. There is a significant difference between the two. A psychologist may only register as a clinical psychologist if they have met certain additional requirements, such as being awarded a relevant Masters-level postgraduate qualification.
[66] Ibid, Page 152.
P1 explained that she had not made a diagnosis of autism (spectrum disorder) for CKPN, for many reasons related to her developmental history. She also said that the developmental period between the ages of four and five is very important to consider in diagnosing this condition. She said that many children have such “early quirks”, and they are gone by age five. P1 said that she has made over 100 “autism” diagnoses in her practice.[67]
[67] Ibid, Page 153.
P1 explained that she believed the therapies used on CKPN had been effective. She said that they started with little things and had to move slowly, but that CKPN’s family reported that these had made a big difference in understanding which of CKPN’s behaviours are related to pain, and those which are not. P1 said she was of the view that CKPN has made significant progress based on her trajectory.[68]
[68] Ibid, Page 154.
P1 did not disagree with IP1’s expert opinion that CKPN meets the DSM-V criteria for “separation anxiety disorder”.[69] However, she said her opinion was that CKPN’s fear of separation from her parents, is only one of CKPN’s fears. P1 said that CKPN could also meet the criteria for a “specific phobia”, “generalized anxiety disorder”, and “agoraphobia”.[70]
[69] “DSM-V” is a reference to the American Pyschiatric Assocation: Diagnostic and Statisical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association 2013.
[70] Ibid, Page 166.
In P1’s report of 30 January 2022 (P1’s January 2022 Report), under the heading “7(b)”, P1 provides some information about her observations of the attachment between CKPN and her Parents. P1 says that despite “countless hours of testing” prior to her involvement with CKPN, none of the reports that predate her involvement with CKPN identify attachment concerns. She said that early observations of CKPN’s family did not identify a need for further assessment of potential attachment issues. P1 also provides a table which sets out the observed signs of parent-child interaction. This table did not appear elsewhere in the documents before the Tribunal. P1 confirmed that it was created for the purpose of P1’s January 2022 Report and was based on her initial screening questions and her recollection of those interactions. P1 said that this information not been specifically written down at the time, because no further action was needed. P1 confirmed that in P1’s January 2022 Report she had stated there were no attachment issues, and that there were no observed or reported concerns about potential attachment disorder.[71]
[71] Refer Transcript, Page 166-167.
P1 acknowledged that she had observed CKPN wanting to stay close to her mother, and that their interactions were warm and close. She did not agree that this is “excessive attachment” but noted that it was natural for CKPN to have remained close to Ms CKPN given her early pain experiences and limited opportunities to go to others.[72]
[72] Ibid, Page 168.
P1 was referred to Ms CKPN’s statement dated 25 October 2021, where at paragraph 150, Ms CKPN refers to CKPN's attachment issues and separation anxiety in the context of her going to preschool. P1 said that there is a difference between attachment issues, versus an insecure attachment. On questioning, P1 said she was of the view that therapy specifically for attachment would not impact on the dynamic between CKPN and her Parents. She considers that CKPN needs a lot of therapy and only one avenue based on attachment theory. P1 said that they are currently trying to make the most of a combination of parent involvement and CKPN's sessions. P1 said she did not think that family therapy (specifically for the purpose of repairing or building or strengthening a bond between family members), is necessarily where time and money should be invested right now.[73]
[73] Ibid, Page 170.
Evidence by treating Speech Pathologist – SP1
At the hearing, SP1 told the Tribunal she has a Bachelor of Applied Science degree in Speech Pathology and a Masters degree in Health Science Education. She said she is a member of the Speech Pathology Association of Australia and a certified practicing speech pathologist.
SP1 said she has been treating CKPN since she was three months of age. She said CKPN was referred to her because she was not gaining weight, refusing to feed, and having difficulty swallowing. She said there was real concern at that point that CKPN would progress to using a nasogastric tube. SP1 said she has been “working in feeding” for 36 years and is also a “specialist in communication disorders”.[74] She said that in her opinion, CKPN does not have any of the eight expected feeding milestones for a four-year-old.[75]
[74] Refer Transcript, Page 201.
[75] Ibid.
SP1 explained that CKPN required significant assistance to initiate, maintain her meals, to facilitate chewing, and to work towards those skills as a typically developing four-year-old. She said there is a lot more parental involvement with CKPN in terms of food preparation and selection, but also in the supervision of, and managing, the mealtimes to initiate and prompt CKPN, and to manage the avoidance that she displays. SP1 said it is quite challenging and has been observed by her, both in clinic sessions and by watching home videos. SP1 said it is very hard to initiate and maintain CKPN’s eating without creating pressure on her.[76]
[76] Ibid.
SP1 explained that CKPN has difficulty coordinating drinking continuously from a cup, and also has an aversion to drinking generally, due to the knowledge that the OsmoLax may be in her drinks. She said they have tried to separate the OsmoLax administration from normal drinking, but she still needed to be prompted and drinks slowly. SP1 said she considers the manner in which the OsmoLax is being administered is an appropriate medical intervention, but she said it does not teach her the drinking skills she needs.[77]
[77] Ibid, Page 201-202.
SP1 confirmed that a normal mealtime for CKPN is 30 minutes, but she is aware from Ms CKPN that CKPN’s gut issues impact on her willingness to eat, which has often resulted in longer meals for her, as her parents distract her when she is fed. SP1 said she thinks there is also an issue with CKPN using avoidance strategies at home.[78]
[78] Ibid, Page 202.
On questioning, SP1 explained that she had recommended the Lively Eaters program because she has shared a lot of patients with Lively Eaters and has presented at conferences with the founder, Ms Lively. She said she knew a lot about Ms Lively and her tube reduction programs, and intensive feeding programs. She said they have had successful outcomes from clients who had attended an intensive program.
SP1 described the program as unique as a residential and intensive program and that it is the best approach for some clients.[79] SP1 said the goal is that CKPN would become a more independent self-feeder, that she will eat the food that is within her capability and maintain her nutrition within a reasonable timeframe. She said she thought that the program would work because there is a paediatrician to manage her gut, as well as dieticians and speech therapists. She said that CKPN would need to be monitored and have ongoing therapy, after completing the IFP; as well as requiring the support of a support worker and other people to facilitate the strategies learned through intensive feeding program across preschool and other environments. SP1 thinks that the program will assist Mr and Ms CKPN to “sit back and then get the support of CKPN moving forward”, to decrease the length of her feeds, and for CKPN to be more independent.[80]
[79] Ibid, Page 202-206.
[80] Ibid, Page 206-207.
SP1 said that the impact that a severe feeding disorder has on a family is not easily recognised. She said that for CKPN’s family it has been a prolonged traumatic event and they are still not getting sleep after four years. She said that treatment for CKPN’s anxiety may assist with her eating issues as it may mean she is more engaged, and perhaps less avoidant, but she will still have physical issues around constipation and oral motor skills in feeding.[81]
[81] Ibid, Page 215-16.
SP1 said that after CKPN attends the IFP, she would return to her treating team of occupational therapist, psychologist, and speech pathologist. SP1 explained that she would get a handover from Lively Eaters’ dieticians and speech pathologists. SP1 explained the IFP is intended to teach CKPN to sustain her nutrition and eat independently, but there will still be a lot of other work, such as expanding her range of foods.[82]
[82] Ibid, Page 216.
Evidence by treating Occupational Therapist - OT1
OT1 issued four reports dated 30 October 2020, 1 March 2021, 14 January 2022 and 31 January 2022 regarding her assessment and treatment of CKPN.
In those reports, OT1 opined that CKPN has quite significant sensory processing challenges in a number of different sensory areas. In particular, she highlighted CKPN’s difficulty with inter-receptive awareness, which is her ability to cue into and process the internal sensations that are coming into her from her body, like hunger, thirst, and feelings of pain. OT1 also opines that CKPN has tactile, auditory, and visual challenges; and those combined, have led to challenges with her emotional regulation. OT1 said these challenges impact on CKPN in every aspect of her day and cause her to have anxiety, because she feels overwhelmed.[83]
[83] Ibid, Page 174-175.
Evidence by Independent Child Psychiatrist – IP1
At the hearing, IP1 told the Tribunal he is a Doctor of Medicine, Child Health and a Fellow of the Royal Australian and New Zealand College of Psychiatrists with a Certificate in Childhood and Adolescent Psychiatry. He said he has been practising as a child and adolescent psychiatrist since 1988.[84] IP1 issued a report in respect of CKPN on 19 January 2022 (IP1’s Report).
[84] Refer Transcript 3 February 2022, Page 250-251.
In IP1’s Report, he opined that CKPN’s various diagnoses could be better understood collectively:[85]
In my view, the most pertinent ICD11 diagnosis to describe [CKPN’s] overall presentation would be “6B4Y-Other specified disorders specifically associated with stress” which is equivalent to the DSM5 diagnosis “Other Specified Trauma- and Stressor-Related Disorder (early recurrent pain)” (309.89). These diagnostic labels indicate traumatic experiences which have led to mental disorder but the symptoms do not conform to other specific trauma diagnoses such as Post-Traumatic Stress Disorder.
Further, I would rate this disorder as of at least moderate, possibly severe degree.
[85] At Page 7.
At the hearing, IP1 said that he had not fully appreciated that the barrier to CP1 assisting CKPN was not funding, but her age. He said that the substance of his recommendation remained the same, but that it would obviously not be CP1 who delivered that treatment. In IP1’s report, at page 24, he told the Tribunal he wanted to strike out the lines commencing with "If that is so then [CP1] should be asked to assist," to the end of that paragraph, and to replace this phrase with something like, "Another expert in psychological management of pain should be consulted".[86]
[86] Refer Transcript, Page 251.
IP1 also said he wished to remove the word “disorganised” from the third paragraph of page 10 of his report. This paragraph begins with phrase, “the impression I get”, and concludes with the phrase, “the problem is not excessive or exclusive attachment, it is insecure or anxious or disorganised attachment”. IP1 explained that this is a different form of attachment issue, and not what he thinks CKPN experiences. He said that “insecure attachment” and “anxious attachment” are used synonymously.[87]
[87] Ibid, Page 285.

In IP1’s report, at page 16, he observes that P1 has provided 90 sessions of psychological therapy in respect of CKPN. He advised that the usual practice in a mental health setting, would be to offer 12 sessions and then conduct a review to determine how much progress has been made. He said that if there was a reasonable suggestion that the participants were properly engaged, and that there was significant progress, but more intervention was needed, then something like another 12 sessions would typically be offered. IP1 said his opinion was that once you get to 25 sessions, if the problem is not resolved, one would conduct quite an in-depth review, which would generally involve some sort of peer review process. IP1 said his view was that if the problem is not “significantly better” after 25 sessions, something needs to be changed and consideration would need to be given to what ought to be changed. IP1 said that CKPN’s ongoing physical challenges would not affect that. He noted that in children's hospitals, that all the children have got physical health problems, but he said it still needs to be asked – “what is the psychological intervention adding? What impact is it having on the presentation?”[88]
[88] Refer Transcript, Page 252.
IP1 said that the critical issue, in his recommendation, is that it is better to have the Parents providing the psychological support at preschool, than to have a support worker doing that, for the following four reasons:
(a)the “normal and natural process” when children face stressful life circumstances is that they are comforted and supported by their parents. IP1 said that should not be deviated from without compelling theoretical justification or compelling evidence that the support worker is somehow more effective than the Parents;
(b)it will refine the interaction between the Parents and CKPN, to make sure that that is working, and is modified and develops in the most optimal way;
(c)the support worker is an employee who could leave which would add a further stressful experience and so having the support worker assist CKPN at school would be to rely on something that is unstable; and
(d)from CKPN’s point of view, the lesson she is learning is that “when life is at its hardest, when life is really tough, which is in this case the attendance of preschool, my parents are not there for me. Instead, there's another person there for me and that person will abandon me.”[89]
[89] Ibid, Page 253-254.
IP1 opined that a support worker could be used instead of the Parents if there is compelling evidence that the support worker is somehow more effective than the Parents, but there is no such evidence in this case. His view was that there had been no proper collection of data which would allow such a conclusion to be drawn. At the hearing, IP1 confirmed, as stated in his report at page 13,[90] that the only quantitative account on CKPN’s progress from all her therapy is a PEDI-CAT summary, cited by IOT1 at page 11 of her report.[91]
[90] Refer NDIA’s Tender Bundle, Page 705.
[91] Refer NDIA’s Tender Bundle, Page 644 and Transcript, Page 254.
IP1 said that this is the only piece of standardised data collection in the records. There were references to an assessment on 16 September 2019 and one on 18 September 2019, although he said it was unclear why “the same measure” would have been repeated two days apart.[92] A further assessment had been carried out nine months later on 14 April 2021. He said that this is the only example of before and after data he could find, and he considered it important because there are “T scores” and “norms”, which allowed for a comparison between CKPN’s functioning compared with her peers. He explained that was a way to see if changes in CKPN's behaviour are attributable to treatment or maturation. IP1 said: “So, what this allows one to consider is, is the child becoming closer to her peers or further behind from her peers.” In the domain of “daily activities”, IP1 noted in the “T score” column, CKPN had scored 31 for both assessments on 16 September 2019 and 14 April 2021. IP1 said that “the only conclusion you can come to from that is that in comparison to her peers there's no change, no significant change.”[93]
[92] Ibid.
[93] Ibid, Page 255.
IP1 noted that he was unable to reach any conclusions arising from the results of those three tests on 16 and 18 September 2019 and 14 April 2021.[94] IP1 said that in his view, the use of standardised widely used measures, which he said had not really been done with CKPN, would give a more reliable result. He said: “Broadly speaking, you know that the terminology is reliable, it's got what we call interrelated reliability which means different raters should score similarly”.[95] He said that using standardised measures is essential to making valid inferences about whether things are getting better or not, and is “vastly better than just impressionistic anecdotal accounts and opinions”. In IP1’s Report, at pages 15 and 16, he noted that he had referred to the need for this and had referenced published works “about why you can't rely on that kind of data”.[96]
[94] In the domain of “mobility”, CKPN scored 30, 40 (which he thought odd), and then back to 33 which he said indicated no significant change. In the “social/cognitive” domain this changed from 26 to 49, (again, which he thought very strange), and then it dropped back to 43. He said that depending on whether the 26 or the 49 is more accurate, there may have been some progress in that area, or there may not have been. Regarding the domain of “responsibility” it changed from 35 up to 41 and then, down to 29. He remarked: “So overall … what appears to be shown … you couldn't really conclude anything on”.
[95] Refer Transcript, Page 255.
[96] Ibid, Page 255-256.
IP1 explained his opinion that CKPN's symptoms do not conform to other specific diagnoses, such as PTSD, because the definition of PTSD requires exposure to one or multiple discrete traumatic events, which does not fit CKPN’s circumstances. He was of the view that “general trauma”, or “complex trauma” were a better fit to CKPN’s experience. He thought that most other psychiatrists would agree with his opinion, but that some may label the condition as PTSD. He said that in the end, diagnoses like these are not that precise, and psychiatrists would know that there was no need to argue one diagnosis over another.[97]
[97] Ibid, Page 256.
In IP1’s Report, at page 7, IP1 suggested that CKPN's overall global functional impairment is somewhere in the range of 30 to 40 out of 100. At the hearing, IP1 confirmed this. Regarding CKPN’s medical diagnosis he said that his view was that insecure attachment was simply “a hypothesis about mechanism”. In his view, the mechanism for CKPN’s mental health issues is not critical:[98]
…because whatever the outcome of debates that we might have about … what's the best explanatory models, none of that changes any of my recommendations about what ought to be done, and I assume the decisions that the AAT - that the tribunal … has to make - about NDIS supports. …
[98] Ibid, Page 258.
IP1 explained that his recommendation that the Parents should go to preschool with CKPN rather than the support worker, is not conditional upon a finding that there is an insecure attachment between CKPN and Ms CKPN. He said that even in the absence of an insecure attachment, he would remain of this view. IP1 said he thought that even if CKPN had a strong bond with a support worker, it still sent “the wrong message” to CKPN, that her parents are not there for her. If the support worker was to be withdrawn from the preschool and replaced with the Parents, IP1 said this would need to be a gradual process. He did not think that CKPN would function if the support worker was withdrawn and not replaced.[99]
[99] Ibid, Pages 258-260; Pages 263-264.
At the hearing, IP1 gave evidence that he was unaware that CKPN had been able to increase the amount of time that she was spending at preschool, was able to leave preschool each day whenever she wanted to, and had a particularly close relationship with SW1. He said that was “good to hear”, but that part of what he had been asked about was whether he considered that CKPN’s treatment is working. He said that “preparedness for school” of all the other children was also increasing, and in the absence of good data collection, he could not say if CKPN was catching up with her peers or falling further behind.[100]
[100] Ibid, Page 264-265.
At the hearing, IP1 explained that the “nub” of secure and insecure attachment is:
(a)the capacity of the child to separate comfortably from the primary attachment figures, to explore the environment comfortably, appropriately for their age, and to return to the attachment figures comfortably; and
(b)the capacity of the child to establish appropriate trust, that is, to not be too trusting, nor too distrustful or anxious to trust, with others, appropriate to their age.
IP1 said that had he formed a view that there was an insecure attachment between CKPN and Ms CKPN because CKPN’s symptoms directly correlated with the “nub” of what is attachment, and because the process that leads to secure attachment was severely disrupted. His view was that the causal processes are there, and the symptoms are there, which is enough to establish the hypothesis.[101]
[101] Ibid, Page 262; Page 282.
P1 did not agree with IP1’s hypothesis that CKPN displayed insecure attachment in respect of her Parents. P1 said that she had observed a secure, loving, warm interaction between CKPN and her parents, and that CKPN shows a strong preference for Ms CKPN.[102]
[102] Ibid, Page 149-150.
The Tribunal put to IP1 that the Parents say that the bond between CKPN and Ms CKPN is a very strong bond and that IP1 is incorrect. IP1 said he thought that the Parents had misunderstood what he meant by insecure attachment. He said that it is not a criticism and:[103]
…insecure attachment is not a consequence of any neglect or inappropriate behaviour on the part of the mother, of the Parents. It's not about whether the Parents and the child love each other. It's not about whether they have a strong bond. That's not what it's about. It's about what I've said it's about. It's about the capacity of the child to separate confidently and to establish trust confidently. …
[103] Ibid, Page 262-263.
When IP1 was asked about his recommended treatment for the separation anxiety experienced by CKPN, he referred to page 18 of his report. He said that the first task is to get the management and coordination right. He said the second is to address the trauma and the third is to specifically treat the anxiety, as set out on pages 21 and 22 of his report.[104]
[104] Ibid, Page 266.
IP1 confirmed that he recommended that there be further assessment of CKPN by a psychiatrist or psychologist. He said that there are “substantial constraints” on what can be assessed and learned about family interactions and emotions in a medico-legal framework. He also said that the assessment needs to take place with proper engagement by the family and the psychiatrist (which he described as an “ordinary clinical therapeutic alliance”), and not arising out of a medico-legal process. He said that such an assessment could examine issues such as separation and attachment, and the relationships between all members of the household, including in CKPN’s case, the maternal grandmother. He said it was more than just testing, and further information is required before an assessment of CKPN and her family could be fully completed.[105]
[105] Ibid, Page 267.
IP1 confirmed that he was confident in his opinion that CKPN does not meet the diagnostic criteria for autism spectrum disorder (ASD). He said that he is “well aware” of the discussion of the differences in presentation of girls and boys with ASD but noted there are not separate diagnostic criteria for girls. He opined that a diagnosis of ASD is more in the realm of a psychiatrist or clinical psychologist, but that a psychologist could diagnose the condition provided they were sufficiently qualified and experienced.[106]
[106] Ibid, Page 267-271.
IP1 gave evidence that in his opinion, CKPN does not have “serious deficits of social and emotional reciprocity”, but rather has “very sophisticated” social and emotional reciprocity, which is “ahead of her peers”. He said CKPN is able to detect her parents’ emotions and accurately describe the personalities of people. He said Ms CKPN described CKPN as “witty”. IP1 said CKPN is also able to make “abstract connections”, such as what she had been told by the treating psychologist and the contents of a book. He did not think that further assessment of CKPN would show that she is seriously deficient in these areas, and absent this, he considers that a diagnosis of ASD does not apply. IP1 said that CKPN does have some “autistic characteristics”.[107]
[107] Ibid, Page 271-272.
IP1 was directed to a table contained in the report of IOT1, which describes CKPN’s individual skills against age-appropriate norms. IP1 said that he was not familiar with the particular tool used, but it did appear to be data of a type that he would be looking for. He said that under the domain of “self-care”, it is stated in that table that CKPN requires:[108]
…total assistance for eating; grooming, maximal assistance; bathing, moderate assistance; dressing, maximal assistance; toileting, maximal assistance; bladder management, modified independence; and bowel management, supervision. …
[108] Ibid, Page 275.
IP1 opined that CKPN’s abilities in these areas would be influenced by her mental state and psychological treatment would have “some influence” on her scores, although it would not affect her physical conditions such as GORD. He noted that some psychological conditions can “accentuate or ameliorate” constipation, although he said in CKPN’s case, there are physical reasons for her constipation. He also acknowledged that there is an association between sensory processing issues and anxiety, and pain and anxiety.[109]
[109] Ibid, Page 275-277.
IP1 noted that this is a very complicated problem which warrants further assessment and a second opinion, as CKPN’s “psychological problems remain intense” and other approaches may be needed. He considers that psychotropic medication should be considered, and “could have a major impact on her disabilities”, although he said he did not specifically recommend medication. He considers that Sertraline “might be the first candidate” in respect of anxiety, but that would need to be explored with the Parents. IP1 said that the family had not yet consulted “the right person” to advise about medication.[110]
[110] Ibid, Page 277-280.
IP1 confirmed that in his view the best approach to school readiness for CKPN is to add (to the team of treaters) a paediatrician and a child psychiatrist, and then seek further psychological advice (perhaps from a specialist in pain management) including in relation to medication for CKPN. He said that in his experience it is also extremely valuable to have a collaborative relationship between the treating psychiatrist, psychologist and CKPN’s school.[111]
[111] Ibid, Page 282.
IP1 acknowledged that in terms of pharmacotherapy, the potential benefits of medication must be “weighed against the severity of the problems as they currently stand”. He said he had prescribed anti-anxiety medications “hundreds of times” and in his experience there is a good outcome, about 60 to 70% of the time.[112]
[112] Ibid, Page 283-285.
IP1 stated that he believed that NDIS supports should be given for impairments rather than for diagnoses so whether or not CKPN is diagnosed with ASD at some point in the future is not relevant. The Tribunal agrees with IP1’s view and confirmed with the parties at the hearing that its decision will not hinge in any way on whether the Applicant is to be diagnosed with ASD.[113]
[113] Ibid, Page 286-287.
While there may be disagreement about the cause of CKPN’s severe anxiety, the Tribunal agrees with IP1 that the cause of the anxiety is irrelevant for current purposes. In this case, the parties agreed that CKPN requires psychiatric and/or psychological support and a coordinated model of care to be able to support CKPN to improve her daily living skills, to address her feeding issues and to function independently. IP1 recommended that CKPN receive psychiatric assessment, family therapy, potential medication trials, and ongoing oversight by a psychiatrist.
The Tribunal has noted IP1’s opinions referred to above that the Parents rather than the support worker should support CKPN at preschool. However, CKPN’s family have already embarked on a well-established routine of having a support worker (who has built up a close relationship with CKPN) attend preschool with CKPN, under the advice of P1. CKPN’s progress at preschool has been reportedly positive, with her increase in number of days at the time of hearing from two to three day per week. At the hearing, IP1 was asked what the impact on CKPN’s pyscosocial functioning would be, if the support worker assistance at preschool was withdrawn. IP1 advised that if the support worker assistance was withdrawn, and not replaced with assistance provided by her Parents, he said “my understanding is she wouldn't function at all”. He said that if it was changed from assistance provided by the support worker to assistance provided by the Parents, it would have no adverse impact at all and that “certainly would have a number of advantages”.[114] As CKPN transitions to mainstream primary school in 2023, the objective will be for this additional support currently provided by the support worker to be withdrawn in a controlled manner at some point in the future.
[114] Ibid, Page 282.
The Tribunal considers that IP1’s view that CKPN has had a great deal of therapy with very little objective evidence of improvement is a valid concern. Other than anecdotal reports, the Tribunal could see little evidence that CKPN has made significant improvements with her current regime despite its high intensity. The Tribunal agrees with IP1’s observations about there being a need for more regular and effective assessment and ongoing evaluation of CKPN’S progress if supports continue to be requested by her Parents under the NDIS.
Evidence by Independent Occupational Therapist – IOT1
IOT1 advised that she has been working as an occupational therapist since 2007, in community practices, private practices and inpatient and outpatient departments. She is currently working as a paediatric occupational therapist at a children’s hospital. IOT1 said she had worked in private practice for six or seven years with children with sensory processing difficulties, eating disorders and eating restrictions. She said they ran a feeding program based on the SOS principles, and IOT1 led two of the weekly groups.[115]
[115] Ibid, Page 293.
IOT1 has provided two reports dated 17 December 2021 (IOT1’s 2021 Report); and a supplementary report dated 28 January 2022 (IOT1’s 2022 Report).[116]
[116] At the hearing, IOT1 advised that the only amendment she wished to make to IOT1’s 2021 Report is on page 3 where she incorrectly attributed an initial assessment report of Emily Lively to OT1 – refer Transcript, Page 292.
In November 2021 IOT1 did a full functional assessment of CKPN at her home. She also observed CKPN being administered OsmoLax. She described this as being done by CKPN’s father taking her outside to distract her with water jets and water guns. CKPN was then administered the OsmoLax in a syringe. IOT1 observed that CKPN would have one or two syringes at a time, and then would have a break. IOT1 asked Ms CKPN why she did not continue the administration and was told that CKPN needs some time; otherwise she gags and vomits it up, which means they would have to start that whole process again. CKPN was given a tiny bit of a lolly snake as a reward halfway through, which she took a long time to chew and eat. IOT1 observed that it took about half an hour to administer the OsmoLax, not the fluid. She noted that CKPN took a toilet break while feeding and that IOT1 thought it was likely an avoidance technique.[117]
[117] Refer Transcript, Pages 293-294; Page 299.
CKPN’S SUPPORT NEEDS

In conclusion, the Tribunal considers that for the next 12 months, the provision of support worker assistance to CKPN during school terms of 31.5 hours per week at the weekday daytime rate, and during periods that do not fall during school terms of 15 hours per week at the weekday, daytime rate, meets all of the criteria under s 34(1) of the NDIS Act and should be included in CKPN’s SOPS and funded under the NDIS.
Allied health services
As detailed in paragraph [30] above, the Parents have requested 27 hours per annum of speech therapy, 50 hours per annum of psychological therapy, and 72 hours per annum of occupational therapy (comprising 48 hours of single sessions and 24 hours of peer-to-peer “socialisation” sessions).
The question of whether CKPN should continue to receive allied health interventions over the next 12 months; and if so, which type and at what level, was difficult to assess due to the paucity of objective measures that had been undertaken to measure CKPN’s progress as a result of those interventions while factoring in the progress she would have made, as other children make, as result of maturation.
Occupational therapy
The Parents, on behalf of CKPN, contend that 72 hours of occupational therapy are necessary, made up of 48 individual sessions and 24 group sessions per annum. They contend the peer sessions are said to have been “crucial and effective” for CKPN’s transition to preschool.[304] CKPN’s transition to preschool is now well advanced, and she is about to transition to primary school.
[304] Refer CKPN’s Closing Submissions at paragraph [28].
At the hearing, OT1 recommended fortnightly sessions for CKPN, being a combination of individual therapy and peer sessions. OT1 explained that peer sessions are to work on CKPN developing the ability to engage with and have the confidence to be able to be regulated and interact with one other child. She said it is hoped that CKPN will be able to translate that skill to preschool.[305]
[305] Transcript, Page 176.
The OT1 was aware that CKPN is being treated by SP1 for feeding issues. She was also aware that a written preschool transition plan had been developed but said that she had not had input into that plan. OT1 said that it was not unusual that she was not involved in designing that plan, as each preschool is different, and the occupational therapist usually works with the family. She remarked that while it would have been optimal for her to be consulted about such an important transition, it was not standard practice. She said that she would “more typically” be called in, if there had been a “disaster”. OT1 said she was aware of CKPN’s regression in the toileting area late last year.[306]
[306] Ibid, Page 183.
OT1 confirmed that she had recommended 48 hours of individual occupational therapy, and a further 24 hours of occupational therapy in a social setting.[307]
[307] Ibid, Page 184.
OT1 is aware that CKPN has been diagnosed with ARFID and an IFP had been recommended. She said, in her view, CKPN could receive occupational therapy support as part of an IFP and also receive her services, as the therapy she provides is not focussed on CKPN’s eating issues but on her sensory processing regulation and social emotional issues. OT1 said that feeding was only a small part of it. She agreed that she should not replicate the work of the other occupational therapist around feeding.[308]
[308] Ibid, Page 189.
At the hearing OT1 explained to the Tribunal that she was working with CKPN on a number of issues, including her chronic pain and how to regulate herself when experiencing pain. OT1 said they were using the “DIR Floortime model”, which looked at the underlying social, emotional, and developmental levels that all children go through from birth into their primary school years.[309] Based on this explanation and the evidence of OT1 and IOT1, the Tribunal is satisfied that the continuation of delivery of occupational therapy to CKPN would be both effective and beneficial to her; and that it constitutes value for money especially as she is trying to develop her independence and number of days of attendance at preschool this year, and transition to primary school next year.
[309] Ibid, Page 175.
Both OT1 and IOT1 have recommended that CKPN receive 48 hours per annum in occupational therapy (OT), delivered on an individual basis. OT1 also recommended a further 24 hours of OT be provided to CKPN in a group setting, which the Tribunal will address further below. The Tribunal accepts the recommendations of OT1 and IOT1 in relation to how many hours of individual OT that CKPN should be funded for over the next 12 months and that this should be 48 hours. The Tribunal is satisfied that 48 hours per annum of OT will assist CKPN to pursue her goals, objectives and aspirations; to assist her to undertake activities to facilitate her social and economic participation (such as building her skills to attend and remain emotionally regulated and as independent with her self-care as possible while at preschool and at school in 2023). There was no suggestion by the NDIA that this support would not meet the further criteria in ss 34(1)(e) or (f) of the NDIS Act.
Accordingly, the Tribunal concludes that the provision to CKPN of 48 hours of OT per annum on an individual basis meets the criteria under s 34(1) and should be added to her SOPS and funded under the NDIS.
Regarding the additional 24 hours of OT to be delivered in group sessions, as recommended by OT1, the Tribunal was not satisfied, on the evidence, that this support would be beneficial and effective for CKPN, or that it represented value for money. CKPN has not received group OT previously, so there was no demonstrated history that this additional level and type of OT would be beneficial for her. IOT1 did not recommend group OT for CKPN. It was unclear to the Tribunal as to what was sought to be achieved from delivering OT on a group basis with CKPN. The Tribunal is also mindful that the Parents are actively trying to achieve an increase in the number of days and duration of CKPN’s attendance each week at preschool, where she will have dedicated support by SW1 or other support worker; and that there will be ample opportunities for CKPN to socialise with other children at the preschool and primary school where she may develop her capacity to regulate her emotions.
OT1 will be at liberty to pass on guidance and advice during the 48 hours of individual OT sessions, to the Parents and SW1 or CKPN’s other support workers, as to how they may best assist CKPN to achieve this while she is in attendance at preschool in a social setting. The Tribunal is concerned that adding further group activities and new children into CKPN’s life at the present time, through group OT sessions, may prove to be counterproductive. The Tribunal is not persuaded that this additional type and level of group OT therapy meets all of the s 34(1) criteria because it does not meet the criteria under s 34(1)(c) and (d). The Tribunal does not consider it necessary to decide whether the remaining criteria under s 34(1) are met because the six criteria are cumulative.
Accordingly, the Tribunal considers that CKPN should be funded for OT under the NDIS for 48 hours per annum for individual OT sessions with CKPN. The Tribunal concludes that the requested additional 24 hours per annum of OT for group sessions is not a “reasonable and necessary support” under s 34(1) and should not be added to CKPN’s SOPS and funded under the NDIS.
Speech therapy
The Parents have requested funding for 27 hours per annum of speech therapy for CKPN. The NDIA contends that 12 hours per annum is sufficient and should be funded; and that such therapy should be provided in collaboration with the treating professionals providing:
(a)the family therapy addressing CKPN’s attachment issues and consequent anxiety; and
(b)the intensive feeding intervention therapy to allow for consultation, reporting and liaison by SP1 with other treating professionals and education providers.[310]
[310] Refer NDIA’s Closing Submissions at paragraph [70].
The Tribunal has taken into consideration the evidence by SP1 as set out in paragraphs [81] to [89] above in deciding whether the Parents’ request, on behalf of CKPN, for 27 hours of speech therapy should be funded under CKPN’s NDIS plan.
SP1 recommends that CKPN receives a total of 27 hours of speech therapy, comprising:
(a)20 x 45 minutes of speech therapy sessions per annum;
(b)10 hours per annum for training and liaison with other therapists and the staff of the preschool and other environments CKPN attends; and
(c)2 hours per annum of review and planning.[311]
[311] T-Documents, T1G.
SP1 also recommended that CKPN attend a feeding program, preferably Lively Eaters, which has now been funded and provided to CKPN.
The Tribunal acknowledges that CKPN has not previously received speech pathology at the intensity of 27 hours per annum. However, the Tribunal is satisfied from the evidence before it that even though CKPN has now undertaken the Lively Eaters IFP aimed at assisting her with her feeding issues, there remains a proper evidentiary basis for CKPN to continue her treatment by a speech pathologist at this time in relation to her feeding issues at the intensity proposed by the Parents, for the following reasons:
(a)it is critical that the strategies taught during the recent IFP are fully implemented as CKPN returns to her home and schooling environment. In this regard, the Tribunal notes and accepts the evidence of SP1 as set out in paragraph [87] above;
(b)the Tribunal gained an impression from SP1’s evidence there was more work SP1 proposed to do with the Parents to ensure that the approach they and SW1 were taking to CKPN’s feeding and drinking while she is administered the stool softener, was optimal;
(c)continued speech therapy of 27 hours per annum will assist the Parents and SW1 to employ strategies with CKPN to promote her preparedness to eat lunch at preschool and to do so as independently as possible, so that she is able to transition successfully to primary school in 2023; and
(d)CKPN has severe longstanding feeding issues, complicated by her anxieties, which warrant the ongoing involvement and supervision by a treating speech pathologist, until such time as those issues have been substantially resolved so that she receives the nutrition she needs and develops independent feeding skills appropriate to her age.
For these reasons, the Tribunal is satisfied that the requested speech therapy of 27 hours per annum will assist CKPN to pursue her goals, objectives and aspirations; assist her to undertake activities to facilitate her social and economic participation (such as building her independent feeding skills so that she may attend preschool for longer periods and a greater number of days per week, and then, to transition successfully to school in 2023); will be beneficial and effective for her and represents value for money and may in time reduce her need for assistance with feeding by external supports workers. There was no suggestion by the NDIA that this support would not meet the further criteria in ss 34(1)(e) or (f) of the NDIS Act.
Accordingly, the Tribunal concludes that this requested support of 27 hours per annum of speech therapy meets all of the criteria under s 34(1) of the Act and is a “reasonable and necessary support”. The Tribunal concludes that this support should be added to CKPN’s SOPS and be funded under the NDIS.
Psychological therapy
The Parents contend that the psychological therapies provided to date have improved CKPN’s functional capacity, and her support network, and should not be further dismantled. They contend that any funding provided should allow the flexibility for CKPN to engage a registered psychologist, clinical psychologist, psychiatrist and/or infant mental health therapist. The Parents state in CKPN’s Substantive Reply after the hearing that “trauma therapy” has already commenced.[312]
[312] Refer CKPN’s Closing Submissions at paragraph [32].
P1 has recommended that CKPN should receive 26 hours of psychological therapy per annum (fortnightly sessions), plus at least 20 hours per annum of behaviour support and behaviour support plan development.[313]
[313] Refer T-Documents, T1F.
The Tribunal put to P1 that IP1 is of the opinion that CKPN has had a lot of psychology sessions and support with what he considers to be “fairly minimal progress”. P1 said that it is important to consider that P1’s time so far has not only been spent on increasing CKPN’s ability to be away from Ms CKPN. She said it had also been spent on CKPN’s sleeping issues and to help her to leave the house and attend an activity each day, even if she does not participate. P1 said that they had been working on anxiety around a number of issues and peer relationships. P1 said that her applied behavioural analyst role has been part of that as well. P1 said that there may be a number of sessions, but it is only for one hour per week.[314]
[314] Refer Transcript, Page 171.
The Tribunal asked P1 about IP1’s comments, in relation to his view that the various clinical and therapeutic supports being offered to CKPN are not organised or coordinated, as they would be in a normal multidisciplinary team. P1 said that it would be wonderful if within every EI team there was sufficient time, funds, and mental capacity of the family involved to do those things. However, P1 said that, realistically, they cannot fit that in based on CKPN's needs. P1 said that all the therapy providers make a conscious effort to make sure they are not overlapping, and Ms CKPN gives a “snapshot of what is happening in other therapies”. P1 said that she considers Ms CKPN was capable of being objective about CKPN, and that Ms CKPN’s reports over the years have always been accurate, in terms of what was going on. P1 said they were backed up by her own observations.[315]
[315] Ibid, Page 171-172.
P1 confirmed that the degree of benefit that CKPN would get from a feeding program has been discussed by her and feeding specialists. From the perspective of a behavioural analyst, P1 said she was of the view that the feeding approach taken in respect of CKPN, needs to be carefully considered. P1 said she does support and recommend the need for specialised feeding intervention.[316]
[316] Ibid, Page 173.
P1 said she is aware of IP1’s recommendation that CKPN be treated by a child psychiatrist, and that family therapy be part of that treatment (whether delivered by the child psychiatrist or a clinical psychologist). P1 said that they have used elements of the family therapy approach in managing CKPN, including many of the strategies used by Karitane, which was mentioned by IP1.[317]
[317] Ibid, Page 155-156.
SP1 said she had not seen the report of IP1 and the recommendation that the family should undergo family therapy. The Parents acknowledged that SP1 had not been provided with a copy of this report as she was not giving reply evidence and they were fatigued, although they conceded it would have been appropriate for her to have it. SP1 considered that family therapy may be beneficial:[318]
... I think in terms of the impact that CKPN's feeding has had on her family, and then, how that's evolved over time, I would certainly support that they need – the Parents need psychological assistance, or help, in dealing with the trauma they've had with that, and also dealing with, moving forward, how they manage her feeding issues appropriately…
[318] Ibid, Page 214.
The Parents rejected IP1’s hypothesis about the cause and the treatment plan proposed, on the basis that there is insufficient evidence before the Tribunal to support his hypothesis and the proposed treatment plan lacked the necessary detail required to provide any effective implemenation.[319]
[319] Refer CKPN’s Closing Submissions, Pages 8-11.
On balance, the Tribunal is not satisfied that a further 50 hours of psychological therapy with CKPN’s treating psychologist represents value for money. The Tribunal accepts the NDIA’s contention, informed by IP1’s opinion, that the utility of continuing this type of intervention at this level has not been demonstrated. Instead, the Tribunal considers that funding should be provided to CKPN for 48 hours of assessment, treatment and monitoring provided by either a Paediatric Psychiatrist or a Paediatric Clinical Psychologist, including family therapy if indicated by further assessment, for the specific purpose of addressing the issues and CKPN’s building capacity in the areas identified by IP1.
The Tribunal considers that the allied health interventions should be co-ordinated properly through a multi-disciplinary team model with a clinical lead, rather than Ms CKPN, who gave evidence about her state of exhaustion and her other work commitments, working as a lawyer four days per week. Despite the very best intentions of the Parents, it seems possible that the lack of co-ordination of the allied health interventions and CKPN’s other supports to date may have negatively impacted on the past effectiveness of CKPN’s treatment. Mr and Ms CKPN gave the Tribunal the impression they have been quite overwhelmed in their role as carers for CKPN, given her support and medical needs, despite their obvious love for her and tenacity in advocating on her behalf.
In relation to the treatment by P1, the Tribunal acknowledges that the cessation of funding for CKPN to continue her treatment by P1 will cause an initial disruption to CKPN’s routine. However, given the limited evidence of efficacy, the Tribunal is of the view that the benefit to CKPN of continuing on that course has not been substantiated on the evidence. To mitigate against this disruption, the Tribunal considers it appropriate that CKPN be funded for 12 hours of services to be provided by P1 to enable CKPN to be transitioned to alternative set of supports as referred to in paragraph [365] that the Tribunal considers to be “reasonable and necessary” supports for CKPN. This will allow for a structured handover of CKPN’s psychological management from P1 to her new psychiatrist and or paediatric clinical psychologist. If the Parents want further ongoing sessions with P1, they are at liberty to seek a Mental Health Plan funded or subsidised by Medicare from CKPN’s general practitioner for additional sessions with P1 or to fund them privately.
Notional duration of the plan
The Tribunal notes that the parties agreed to a plan length of 12 months. Given CKPN’s considerable needs, the Tribunal was content for this plan duration. It will enable CKPN to have additional support during her transition to primary school, and will support the development of her feeding strategies taught at the Lively Eaters IFP to meet CKPN nutrition needs as she continued to mature.
Non-binding Observation
The Tribunal makes the following non-binding observations based on its consideration of the evidence before it. While it is not the role of the Tribunal to provide parties with advice, this application raises a number of complex issues about the relationship between the Parents and the NDIA. This has been a long, and acrimonious, process. There is potential for damage to the long-term relationship between the Parents and the NDIA, and a loss of trust. It would no doubt benefit CKPN if the parties could treat this Decision as something of a “clean slate”. To that end, the NDIA may wish to give careful consideration to changing CKPN’s case manager to allow fresh relationships to be built between the Parents and the NDIA. Ultimately, it is a matter for the NDIA. Both parties may wish to reconsider their approach to each other when CKPN’s plan next comes up for review or if they participate in any future review proceedings in this Tribunal.
CONCLUSION
The Tribunal concludes that each of the mandatory criteria in s 34 (1) of the NDIS Act are met and that the following supports are “reasonable and necessary supports” and should be included in CKPN’s SOPS over a period of 12 months:
(a)the provision of support worker assistance to CKPN during school terms of 31.5 hours per week at the weekday daytime rate, and during periods that do not fall during school terms of 15 hours per week at the weekday, daytime rate;
(b)48 hours of services or therapy to be provided by a paediatric psychiatrist and/or paediatric clinical psychologist including the time required to undertake appropriate assessments and to write progress reports;
(c)12 hours of psychological therapy and assessment by P1;
(d)27 hours of speech pathology, including the time required to undertake assessments and write progress reports;
(e)48 hours of occupational therapy including the time required to undertake assessments and write progress reports;
(f)20 hours of clinical leadership by an allied health professional as part of a multi-disciplinary team as determined by the members of CKPN’s treating team in accordance with CKPN’s needs; noting the recommendations that this team should be led by a Paediatrician or Occupational Therapist.

The Tribunal considers that the reassessment date for the new SOPS should fall on the 12 month anniversary of the date of approval of the new SOPS, and that all funding approved under the plan is to be “plan-managed”.
Accordingly, the Tribunal sets aside the Decision Under Review and remits the matter for reconsideration with a direction that on or before 14 December 2022, the NDIA facilitate the approval of a new SOPS for CKPN containing the reasonable and necessary supports referred to above in paragraph [370] and which includes provisions specifying that all funding under the plan is to be “plan-managed” and the reassessment date is to fall on the 12 month anniversary of the date of approval of a new SOPS for CKPN under this remittal.

I certify that the preceding 372 (three hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker (presiding), Member T. Bubutievski

..............................[SGD]..........................................
Associate
Dated: 30 November 2022

Dates of hearing: 1, 2 and 3 February 2022

Date final submissions received: 31 October 2022

Applicant’s Child Representatives: Mr and Ms CKPN

Advocate for the Applicant: Mr Nabil Mohammad

Counsel for the Respondent: Ms Melissa Fisher

Solicitors for the Respondent: Ashurst

[2022] AATA 4397

30 November 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Procedural Fairness

Jurisdiction

Dates of hearing:	1, 2 and 3 February 2022
Date final submissions received:	31 October 2022
Applicant’s Child Representatives:	Mr and Ms CKPN
Advocate for the Applicant:	Mr Nabil Mohammad
Counsel for the Respondent:	Ms Melissa Fisher
Solicitors for the Respondent:	Ashurst