CRWR and National Disability Insurance Agency

CRWR and National Disability Insurance Agency [2024] AATA 3506 (2 October 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2022/2054
Re:CRWR
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Hon. P Goward AO, Senior Member
Date:2 October 2024
Place:Sydney

DECISION
Pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review is set aside and remitted to the Respondent with the direction that the Applicant’s statement of participant’s supports be varied so as to specify the following as reasonable and necessary supports:
(a)30 hours annually psychology support;
(b)12 hours annually physiotherapy support;
(c)52 hours annually occupational therapy support, and additionally, 26 hours support for occupational therapist travel;
(d)80 hours annually for other therapies (inclusive but not limited to music therapy, speech therapy, exercise physiology, hippotherapy and swimming);
(e)30 hours annually for behaviour support plan, including development and training;
(f)70 hours annually Support Coordination (Level 2);
(g)$2,321.00 to fund the purchase of a ‘freedom wheels modified bike’ in accordance with the quotation provided.

.........................[sgd]...............................................
The Hon. P Goward AO, Senior Member
Catchwords
National Disability Insurance Scheme – Reasonable and necessary – expert or advocate – independence of expert evidence – evidence, probative value – parent disability – music therapy – independent – autism level 2 – responsibilities, expectations of parents – representation by parent with disability – internet access – decision under review set aside and remitted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
BIJD and National Disability insurance Agency [2018] AATA 2971
Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634
Mulligan and National Disability insurance Agency [2015] FCA 544
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Secondary Materials
NDIS Operational Guidelines - Reasonable and necessary supports, dated 6 October 2023
The National Disability Insurance Scheme Pricing Arrangements and Price Limits 2023-24
REASONS FOR DECISION
The Hon. P. Goward AO, Senior Member
2 October 2024
INTRODUCTION

The Applicant is a 16-year-old boy with Autism level 2 (ASD) who became a participant in the National Disability insurance Scheme (the Scheme) several years ago.
On 1 September 2021 the Respondent approved a statement of participant supports, included in a NDIS plan. The plan included core supports, capacity building supports and funding for capital supports (a bicycle) once a quote for assistive technology had been provided.
On 30 November 2021, the Applicant, through his father and Child Representative lodged an application for review of the decision. The decision was then reviewed internally and varied by the Respondent. A statement of participant supports was approved on 6 January 2022, with a review date of 1 January 2023.
On 10 March 2022, the Applicant applied to the Tribunal for review of the internal review decision. For a range of reasons, including non-appearances at direction hearings by the Applicant’s Representative and extensive delays in the provision of evidence, the case then languished. Meanwhile, the Applicant’s plan was “auto extended” by the Respondent on 6 January 2023 and 6 January 2024, meaning the Applicant’s existing supports were continued. The Tribunal notes “auto-extension” is a term adopted by the Respondent to describe continued funding in circumstances where funded supports are disputed by the Applicant, but that it has no legal meaning, thus the Respondent’s use of inverted commas. Rather, it is an administrative contrivance (since made redundant by legislative amendments) applying to those many cases where the Respondent’s decision was delayed beyond a plan’s expiry date.
The Respondent canvassed whether the Tribunal had jurisdiction in written submissions to hear this matter but concluded that the “auto-extensions” did not invalidate the Applicant’s request for review of the Respondent’s decision of 6 January 2022, which remains the reviewable decision under section 103 of the National Disability Insurance Scheme Act 2013 (the Act).
The Tribunal accepts the Respondent’s contentions, which were not challenged by the Applicant, and concludes that it has jurisdiction to hear this matter.
Issue
The Tribunal is required to determine whether the disputed supports are reasonable and necessary, so meeting the requirements of section 34 of the Act.
For completeness, and after several attempts at negotiation between the parties, the requested supports were updated in the Respondent’s Statement of Facts, Issues and Contentions of 30 August 2024. The Applicant was understood to have identified the following requested supports in addition to those already agreed or provided by the Respondent:
·Support coordination – 30 hours per year of Level 3, and 70 hours per year of Level 2 (to replace the 50 hours already funded);
·Specialist behavioural intervention – 30 hours per year (to replace the 20 hours already funded);
·Speech therapy – 50 hours per year of therapy and 25 hours of provider travel;
·Hippotherapy – 52 hours per year;
·Swimming – 52 hours per year;
·Physiotherapy – 26 hours per year of therapy (to replace the 12 hours already funded) and also 13 hours of provider travel;
·Exercise physiology – 26 hours per year of therapy and 13 hours of provider travel;
·Occupational therapy – 50 hours per year of therapy and 26 hours of provider travel;
·Psychology (hours not stated);
·Support worker assistance – 22 hours per week during school term (to replace the 12 hours already funded);
·Support worker assistance - 18 hours per week during school holidays;
·Music Therapy support - 70 hours per year, 1.5 hours per week;
·Freedom Wheels customised bike - $2,321;
·Car cycle rack - $2,200; and
·Sensory items (such as fidget toys) - $1,816.
The Respondent, in the Statement of Facts, Issues and Contentions of 30 August 2024, offered to include the following additional supports:
·Support coordination at Level 2 rate - 70 hours per year (total);
·Physiotherapy - 15 hours per year (total);
·Occupational Therapy - 52 hours per year; and
·Behaviour Management Plan, including training - 30 hours per year (total).
In the absence of any other definitive written statement from the Applicant about requested supports, and some errors in the submissions of the Respondent, it has been difficult to determine exactly which supports remain in dispute. However, the Tribunal considers the following to have been the exhaustive list of disputed supports at the outset of the hearing:
·30 hours case coordination support at Level 3 in addition to the 70 hours of case coordination at Level 2, which is not disputed between the parties.
·Music therapy support, 70 hours per year;
·Support Worker assistance of 22 hours per school week (an additional 12 hours per week);
·Support Worker assistance of 18 hours per weekend (currently, there is no weekend assistance);
·14 hours of additional physiotherapy annually (currently 12 hours) and 13 additional hours of travel;
·26 hours of exercise physiology annually and an additional 13 hours of travel;
·50 hours of psychology support annually, an increase of 20 hours annually, and 25 hours of travel;
·A Freedom Wheels modified bike, cost $2,321;
·A modified car bike rack (price uncertain at commencement of hearing);
·52 hours each year of swimming and hippotherapy;
·A consumables budget of $1,816 for items such as fidget toys; and
·50 hours of speech therapy annually and 25 hours of travel.
·26 hours of travel assistance support to be provided for the occupational therapist
The Tribunal accepts the Respondent agreed to fund 80 hours of other therapies, in which the Applicant’s requested supports of music therapy, speech therapy, exercise physiology, hippotherapy, swimming, could be included in some combination. With respect to these requested supports, the Tribunal’s task is to determine whether any of these should be treated as separate items, with additional and specified funding provided.
The issue of additional travel hours for therapists to attend the Applicant’s home will be treated separately to the requested supports themselves.
The Respondent advised during the hearing that the request for the Freedom bike was agreed now that a quote had been provided. The Tribunal accepts that this support is no longer in dispute, and this will be noted in the final decision.
The Tribunal had before it the following written evidence;
a Joint Tender Bundle;
Supplementary Joint Hearing Bundle;
a letter from the father’s GP dated 5 September 2024;
a report from the father’s occupational therapist dated 5 September 2023;
16 pictures (including screen shots) of conversations between the OT and the father;
an updated Freedom Wheels Voyager Quote dated 10 September 2024;
an updated NDIS Report from Mr Cody Barrett dated 24 11 2023 amended on 17 09 2024.
The Tribunal’s approach to the additional material provided after the hearing had concluded is discussed in later paragraphs of this decision.
The Tribunal also heard evidence from the Applicant’s father, Mr Graham Shaw, Psychologist, Ms Emma Townsend, Music Therapist, Ms Paige McGowan, Behaviour Therapist, Mr Cody Barrett, Physiotherapist, and Mr Josh Stubing, Occupational Therapist. After the music therapist, Ms Emma Townsend, had appeared before the Tribunal, she provided, as requested, additional evidence, which was accepted by the Tribunal. The Applicant’s Representative sought leave to file a reply to this submission and this was granted. The Tribunal’s approach to this additional material is discussed in later paragraphs of this decision.
BACKGROUND
The Applicant lives with his father nine days a fortnight and spends the remaining five days each fortnight with his mother and other family, who live approximately one hour away.
The Applicant attends a local high school in a supported learning class but is apparently an intelligent young man with strong interests in history and music. He is graded in karate. He is independent in mobility and self-care, although his father considers his son’s ASD compromises his self-care and his failure to perform household tasks such as meal preparation. He is isolated socially and has difficulty with social communications, although limited evidence was available about social interactions at his mother’s home.
The Applicant’s father is a former nurse; he is also, reportedly, a participant in the Scheme. Since the father’s impairments are significant considerations in this matter, for completeness they are, as described in a 2023 Occupational Therapy by Daniel Martin of Community Therapy: Schizophrenia (in remission), Major depressive Disorder, Post Traumatic Stress Disorder, Autism Spectrum Disorder Level 1, fracture to L5 vertebrae, L4/L5 disc herniation and compression, asthma, and allergy to mould. The Tribunal notes the fracture is an injury and while no date was provided for the injury, the first reference known to the Tribunal dates from a medical certificate of 13 January 2020, provided by reliance Medical Practice, so the fracture is well over four and a half years old.
The Applicant’s father presented as a caring parent, calm, fluent and informed, but apparently unable to provide information and evidence in a timely and organised manner. He appeared to recognise his difficulties in managing the NDIS process and pointed out several times during the hearing that it would have been better had his son received legal representation and that he felt overwhelmed by the process.
The Applicant’s father was also strongly of the view, as he expressed several times during the hearings, that he and his son were being denied appropriate supports through the lack of case coordination and discrimination against them on the grounds of Indigeneity. He omitted to advise the Tribunal that a support coordinator, Level 2, had commenced working with the Applicant and himself, which the Tribunal has inferred from on an email received from the Support Coordinator providing additional evidence on behalf of the Applicant after the hearing’s conclusion.
From the outset, the Applicant’s father complied sparingly with Tribunal requests. I will list them here because the difficulties this presented for the Tribunal in adequately hearing his son’s matter were significant.
(i)The Applicant’s father was first advised to seek assistance from Legal Aid by the Tribunal early in the proceeding but did not do so until seven weeks before the substantive hearing in September 2024. At the start of the hearing the father confirmed that Legal Aid had been refused.
(ii)The Applicant’s father claimed his back injury prevented him from sitting and, on that basis, he could not be available for an in-person hearing in Sydney.
(iii)The Applicant’s father claimed his back pain prevented him from driving to a local advocacy service to use their video-conferencing facilities, which was necessary because, as he advised the Tribunal, he could not afford to have internet connected at his house. Accordingly, a few days before the substantive hearing, he advised he would only attend by telephone. Taking the Applicant to a particular part of the evidence during the hearing relied upon the Applicant finding the correct page in the hearing bundle while standing with his phone to his ear.
(iv)The Applicant’s father claimed he had difficulties reading and writing and could not easily follow or note the evidence being provided at the hearing. Note taking was compounded by his difficulty in sitting for any protracted period. For completion, counsel for the Respondent slowed her presentation and the Tribunal checked regularly with the father to ensure he understood what was being said.
(v)Several weeks before the hearing the Applicant’s father requested that the hearings conclude at 2 pm each day to enable him to collect his son from school. The duration of this drive was said to be at least 15 minutes, which was also the claimed extent of the father’s pain tolerance while driving. The father told the Tribunal that his son was dismissed from school at 2:55 pm on some days and 2:30 pm on others. When requested, the father declined to ask the school to care for the child so that the hearing time could be maximised. The Respondent drew up a hearing schedule with the usual closing time of 4 pm, which the Applicant failed to correct until the first hearing day. Consequently, the schedule needed significant modification as the hearing was underway.
(vi)The Applicant’s father claimed that he could not afford the internet and had no access to a computer. All documents were required to be delivered to him by registered mail. At the commencement of the hearing, the Applicant reported he had only received the hearing bundle that morning, because he had been away for the previous weekend. Accordingly, he claimed not to have read any of the materials and was unprepared with questions or an opening statement. The Tribunal has been advised that the first (and most comprehensive) bundle of evidence was despatched by registered mail and Australia Post reported it being delivered to the Applicant’s front doorstep on 2 August 2024 at 12:36 pm. This was five weeks in advance of the hearing on 9 September 2024. The supplementary hearing bundle was also posted using registered mail. Australia Post recorded it as delivered at 1:46 pm on Friday, 6 September 2024. The Tribunal questioned the discrepancy between the Applicant’s claim and Australia Post records, but it remained unresolved. It is sufficient for the Tribunal observe that the Applicant’s father’s difficulties in preparing for the hearing extended to not addressing the materials provided in advance.
Without notice or leave of the Tribunal and after the hearing had concluded, the Applicant provided additional evidence from the Applicant’s physiotherapist, Mr Cody Barrett, about the additional number of therapy hours recommended and additionally, an estimated cost of a custom-made bike rack for the Applicant’s father’s car.
The Respondent contended, and the Tribunal accepts, that Mr Barrett was not cross-examined on his recommendations of additional hours and that it would be procedurally unfair to admit the further evidence. The Tribunal accordingly affords the recommendations little weight.
The provision of an estimated cost of a bike rack after the conclusion of the hearing was also contended to be procedurally unfair to the Respondent, which had no opportunity to cross examine the provider of the quotation. The Respondent also noted that the request for a bike rack required consideration of other matters, including the capacity of the mother and stepfather, which had not been put to the Tribunal. The Tribunal accepts those contentions and notes there is reference to the provision of a bike rack in the Applicant’s father’s OT report and it is therefore unclear whether this request is already being considered by the Agency with respect to the Applicant’s father’s supports.
The Tribunal considers the provision of both pieces of additional evidence (relevant to the swimming, hippotherapy and the bike rack) could have been provided before the hearing and been properly tested at the hearing. That the Applicant’s father had over two years to prepare this evidence cannot be overlooked and the flurry of further evidence arriving during and after the hearing only contributed to the Tribunal’s difficulty in considering this matter.
The father’s disabilities became central to his son’s application for additional supports. Not only because his father considered his disabilities prevent him from providing the parental support a child would normally expect, but also because they significantly impacted upon the conduct of the hearing and the appropriate provision of evidence.
In listing the difficulties in conducting this hearing, the Tribunal is not seeking to humiliate the Applicant’s father but rather, accepting that the father genuinely cares about his son’s wellbeing, to note the significant additional complexity of the Tribunal’s task because of the father’s impairments. The Tribunal has not concluded that either the father intended to mislead and frustrate the Tribunal in the interests of his child, or that he was simply unable to do what was asked of him by dint of his own impairments, but that, whatever the reason, the father’s conduct has contributed significantly to the protracted and irregular nature of these proceedings. The Tribunal will return to this conclusion at the end of this decision.
The Tribunal, in continuing to hear the matter, was mindful of the importance of ensuring that the Applicant, a 16-year-old boy on the verge of adulthood, receive all reasonable and necessary supports. This concern is compounded by the two-and-a-half-year journey to hearing. However, the hearing had before it the reports of several clinicians who had either assessed the Applicant or were his current therapists. The Tribunal considered that their evidence, properly considered, would enable it to come to the correct and preferrable decision.
The Applicant’s mother, with whom he stays for five nights each fortnight and part of the school holidays, did not participate in the proceeding. Evidence was not sought from her by the Respondent and the Applicant’s father was dismissive of her efforts to care for her son. Since at least some of the supports being sought would have been provided at his mother’s house, this added to the difficulties faced by the Tribunal in determining whether they were reasonable and necessary.

The Applicant was reported by his father to frequently not attend school because he did not like the hour of travel each way on a school bus for students with disability and, consistent with his ASD impairments, found the journeys distressing. Independent verification of these claims was not provided.
CONTENTIONS
While the Applicant contended that all requested supports were reasonable and necessary, the Respondent contended that the case had not been made that each of the disputed supports was reasonable and necessary, variously relying on section 34 (1) (c), (d) and (e) and Rules 3.1; 3.2; 3.4; 5.1 (b), (c). The contentions will be addressed in more detail as each requested support is considered in the following section.
Reasons for Decision
At the outset, the Tribunal notes that the Respondent offered additional hours of behaviour support to develop a new Behaviour Support plan for the Applicant. Although the Applicant did not request such a support, the behavioural therapist, Ms Paige McGowan, told the Tribunal the Applicant’s plan needed updating. It had not been updated for two years and the Applicant was expressing increasing concern about his independence.
The Tribunal accepts the Respondent’s proposal for an updated Behaviour Support Plan of 30 hours per year, including training, replacing 20 hours for planning and finds there is sufficient evidence that this expanded support is reasonable and necessary.
The Tribunal accepts that the Respondent offered to fund specified therapies, to be made up from a combination of 30 hours of psychology; 15 hours of physiotherapy and the funding of a new support in the form of 52 hours of occupational therapy. There are gaps of several hours in the hours requested by the Applicant for psychology and physiotherapy which the Tribunal will address.
Additionally, the Respondent agreed to fund a global 80 hours of other therapies, in which the Applicant’s requested supports of music therapy, exercise physiology, hippotherapy, swimming, could be included in some combination. With respect to these requested supports, the Tribunal’s task is to determine whether any of these should be treated as separate items, with additional and specified funding provided.
The issue of additional travel hours for therapists to attend the Applicant’s home will be treated separately to the requested supports themselves.
Case Coordination
While the Respondent offered to provide 70 hours of case coordination at Level 2 standard, the Applicant considered that his complex needs, when combined with those of his father (who is also a NDIS participants) warranted 30 hours case coordination at the higher standard of Level 3, with a further 70 hours at Level 2 acceptable to him.
The Applicant’s Representative advised the Tribunal that he, as a participant in the Scheme, was already in receipt of Level 3 support coordination, but that it had been difficult to find case coordinators. As he told the Tribunal:
“[W]e’ve engaged probably over the last seven years something like 20 level 2 support coordinators and out of those I would say that perhaps three have actually given it a good attempt to do their job and then have come unfortunately, they’ve either had a resignation in the company and weren’t able to provide the level of support that [the Applicant] needed or realised that his needs were beyond their capabilities”.
The Respondent contended that the Applicant was physically able and did not meet the physical criteria for complex case coordination. When the Applicant’s father was pressed in cross examination to give examples of the complexities involved, the Applicant made a general statement:
“[I]t seems that a lot of the level 2 support coordinators have been struggling with providing the level of support that we need …we’ve had, as I said the advocates and Mr Shaw and the occupational therapists as well and all recommend level 3 support coordination”.
Josh Stubing, the occupational therapist who assessed the Applicant and advised 100 hours of support coordination, explained to the Tribunal:
“[I]t seems like it’s going to be quite a lot of work to get [the Applicant] the services, organise the clinicians, organise the support teams. I think it would be quite a lot of meetings also. I would recommend – the support coordinator often leads those, and kind of gets updates from all of the clinicians and whatnot also, collates all that data. … but I would expect that after the initial phases of [the Applicant’s] new plan to be set up, that that can definitely drop back from 100”.
When Mr Stubing was asked about the need for Level 3 support coordination, replied:
”Look, I don’t have an opinion on it, to be honest. I have a lot to do in regards to therapy with the support coordinators, and liaising with them, but in relation to exactly what they do, in specifics to the levels, I wouldn’t really be able to comment’”.
The Applicant’s music therapist, Ms Emma Townsend, when asked by the Applicant about the complexity of providing case coordination, made this observation to him:
“So I know that, [the Applicant’s father] with your own disability, that that’s limiting as well. The fact that [the Applicant] is from a split household as well, he’s between two places, and there are lot of different dynamics there, particularly with [the Applicant’s father], with his own physical disability, not able to travel to access supports”.
“[…]I mean, the transport is a big thing. The internet service delivery, not having access to that; you’ve got your family dynamics, and – yes. And then, [the Applicant] being in school, and then having to travel, these are all things that are going to impact”.
The psychologist, Graham Shaw, recommended in his report that the Applicant receive 104 hours of specialist support coordination annually, reflecting, as he wrote, the difficulties resulting from:
[…]Coping with the school environment and commute and the challenges that his parents have when navigating the complexities of the NDIS. Further difficulties noted include lack of internet access, lack of support services, difficulty with communication, isolation from family, Aboriginal medical Services and lack of access to indigenous cultural activities, challenges living between both parents’ homes …difficulties with transitions….lastly, the Applicant’s father …lives with ASD, physical disability and mental health issues…which make it difficult for him to navigate the NDIS…These complexities warrant a higher level of support coordination for 104 hrs. per year.
Before the Tribunal, Mr Shaw observed that he had understood from both the Applicant and his father that he “just doesn’t engage outside of the home environment” but that he could not remember why he came up with a recommendation of two hours every week or 104 hours annually.
In closing submissions, the Respondent contended that the evidence suggested there were liaison problems between therapists and that the availability of services in the home, while an issue, was not an issue of support coordination.
The Applicant contended that a high level of support coordination would mean the coordination would have “high responsibility, they have to have a speciality, and they’ve got to be recognised and quite often licenced in that speciality…it’s the support coordinator’s role to have collaboration between all of the services”.
The Applicant did not provide independent corroboration of the requirements of high-level support coordination and which applied at Level 3, but not Level 2. The mother’s role in assisting with the task of coordinating supports, including those provided on days when the Applicant resided with her, was also unclear. The Applicant dismissed her involvement and told the Tribunal she was, effectively, unreliable. Since the Agency had not sought to obtain evidence from the mother, this claim remained untested.
The Tribunal finds, based on the evidence before it, that there is an informal consensus between the Applicant’s clinicians that support coordination is necessary because of the Applicant’s living arrangements, his father’s difficulties, and the need for therapy to be provided at the Applicant’s home.
There was no evidence provided about the work of the current support coordinator which might have assisted further. The Applicant’s father told the Tribunal he had recently been approved for Level 3 support coordination, but it was not clear whether the current coordinator was working on the father’s behalf or the son’s, noting the Applicant is already eligible for 50 hours of support coordination annually but accepting the Applicant’s advice that there had been long periods without support coordination.
The Tribunal finds there is insufficient evidence that the support coordination be provided at the higher level. No probative evidence was provided about the failings of previous support coordinators, even their number and duration, which might have assisted the Tribunal to determine if one hundred hours of case coordination, including 30 hours at Level 3, were reasonable and necessary. However, the Tribunal finds there is sufficient evidence that the Applicant’s father lives in a chronic state of disorganisation which makes case coordination critical for this Applicant.
The Tribunal concludes that 70 hours per year of case coordination at Level 2 be provided initially, noting that there has allegedly been no case coordination available to this Applicant for several years and the family has, nonetheless, managed to institute therapies for the Applicant at school and home. The Tribunal notes that the coordinator’s task of organising the Applicant’s supports and coordinating therapists might be demanding in the early stages, although some supports, such as music therapy, physiotherapy, and behaviour support, are already part of the Applicant’s routine. Once a case coordinator is in place and should the hours available then be demonstrated to be unsatisfactory, the number of hours and level of coordination can be revisited by the Agency immediately or in preparation of the Applicant’s next plan.
Seventy Hours per year of Music Therapy
The Applicant’s Music Therapist, Ms Emma Townsend, attends the house weekly for an hour’s therapy with the Applicant and provides music therapy for the Applicant’s father.
Ms Townsend recommended 70 hours of music therapy (plus two hours for report writing) based on the Applicant’s “enthusiasm” and “progress”. She recorded progress in the domains of emotional regulation, language and communication, cognitive function and physical/motor development. She said the Applicant had continued to develop his capacity for emotional regulation, fine motor skills, social and communication skills. Miss Townsend’s report advised that the Applicant:
“Finds music therapy a motivating and engaging way to develop his skills. Increasing time given to this particular therapy will allow [the Applicant] to be supported further and make consistent improvements.”
The Respondent’s position at the outset was that 70 hours per year of music therapy was not value for money since the evidence did not show that the support will build the Applicant’s functional capacity with daily living tasks or engagement in the community. Nor, contended the Respondent, did the evidence show how the support will increase the Applicant’s independence or reduce his support needs, because despite engaging in this therapy since 2021, his therapist has advised he requires increased support (that is, more hours) to make further improvement.
During the hearing, Ms Townsend carefully distinguished between music therapy and music teaching and the technical nature of the music therapist’s role. Reasonably, the Tribunal asked for technical assessment reports, with diagnostic tools, which might clarify her claims that the Applicant’s functioning in domains related to his impairments had improved.
After the hearing had concluded, Ms Townsend provided the Tribunal with a series of annual one-page reports, dating from 2020, in which the Applicant’s achievements on various domains such as “Communication through vocalisation”, “Plays/sings with pitch awareness”, “Clarity of Speech”, were scaled from one to five. Handwritten scores were provided, although how they applied to the measures was unclear. For example, the outcome of “Composes” was scaled from “not at all”, to “often”, to “always (independently)”.
The Tribunal found these reports unhelpful and entirely lacking in any explanation of the assessment methodology which might assist the Tribunal to understand how the outcomes related to the Applicant’s impairments and how they were determined. Providing background papers, such as meta-analyses, on the general benefits of music therapy was inadequate to the task and the Tribunal considers Ms Townsend, who told the Tribunal she had a master’s degree in music therapy, might have put more effort into describing the assessment methodology, assuming such a methodology exists, and how the Applicant’s scores related to the outcomes listed.
The Respondent was provided with the same material, however accepted the methodology and contended there had been a dramatic increase in the Applicant’s scores over the five years of reports. Particularly, the Respondent noted the Applicant was scored to “often” or “always” to meet each of the specified outcomes in 2024. From these, the Respondent concluded that the Applicant did not need to continue music therapy at the intensity he was undertaking since the support had done its work and increased hours of therapy could not be “reasonable and necessary”. The Tribunal is inclined to consider this contention overlooks the impact of ongoing reinforcement, as suggested by Ms Townsend in cross examination.
Since Ms Townsend provided this material after her appearance as witness and could not be examined on it, the Tribunal considers it must be treated as having little probative value for the purposes of this decision.
In cross examination, Ms Townsend explained that the extra fortnightly session she had proposed in her report would:
”Create that continuity and for people who are autistic, it creates structure and just into their environment which helps with all sorts of things”
Later, when asked about the expectation that the Applicant’s father should encourage his son to practice, Ms Townsend agreed: “I would expect so”. She also agreed in cross examination that many of the skills could be practiced by the Applicant “independently”.
In cross examination, Ms Townsend agreed that her therapeutic rapport with the Applicant would have assisted the Applicant among other things but disagreed that observed improvements in his communication were the result of natural maturation. As she said:
“He has a diagnosis that makes attention incredibly difficult, and memory incredibly difficult. And so the therapies that he has will support him here”.
In the absence of any detailed information about the level of the Applicant’s impairment, and indeed some conflicting evidence regarding his coordination and cognitive abilities, as evidenced by his involvement with karate, the Tribunal finds there is insufficient evidence that Ms Townsend’s decisive rejection of the role of maturation in improving the Applicant’s communications should be accepted by the Tribunal. The Tribunal also accepts the Respondent’s contention that Ms Townsend stands to gain commercially from the provision of more hours and her conflict of interest cannot be overlooked altogether.
The Applicant contended that the evidence of the past five years demonstrated the positive impact of music therapy on the Applicant’s communication skills and that, as advised by the therapist, more hours of therapy would be more beneficial.
The Tribunal finds, on the evidence before it, that the Applicant has valued the music therapy, enjoys the relationship with the music therapist and responds to it favourably. No doubt this has assisted the Applicant, but the extent is uncertain and therefore it is not possible to determine if the support is value for money in satisfaction of Rule 3.1, Value for Money, which states:
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Regarding the request for further hours of music therapy to enable the Applicant to have more structure and continuity, the Tribunal finds, on the evidence before it, that the father can institute the practice recommended by the therapist, consistent with Rule 3.4, Reasonable family, carer and other support, which relate to the care expected to be provided by parents and carers. For completeness Rule 3.4 requires that the following matters are to be considered:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and
(ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
The role of the mother in providing continuity to her son’s practice of music therapy was also unclear.
Overall, while music therapy might constitute a more productive component of the Applicant’s package of 80 hours of therapy than some other therapies sought, there was insufficient evidence that the hours of music therapy should be funded separately or increased from the present number of 50 funded hours to the requested 70 hours.
The Tribunal concludes that the provision of 70 hours of music therapy does not meet the requirements of s 34 of the Act and is not reasonable and necessary but may be funded as part of the 80-hour package of additional supports already provided to the Applicant.
Support Worker Assistance
The Applicant sought an additional 10 hours of support worker assistance during the week, and 18 hours on weekends, primarily because of the Applicant’s father’s limited ability to transport his child to school and to social activities on weekends. The father described his pain to the Tribunal but said had not been able to receive treatment because he could not travel to a specialist:
“[I]t’s very uncomfortable for me even after five minutes of sitting down let alone 15 minutes. By that stage- by the 15 minute stage, we’re talking about loss of feeling to my limbs, spasming and …difficulty to be able to operate the accelerator and foot brake”.

He admitted he had not pursued medical treatment for his pain and that this was not possible:
[…]” without any assistance with transport…and the lack of specialists on the central coast”.
The Applicant’s father also advised that he considered the back injury to be permanent:
[…]”I have had a CT scan since [COVID] …and it continues to show the same…impingement of the …nerves and herniation of the disc…it’s a permanent disability I have”.
The Tribunal notes that despite the father’s back pain, he collected his son from school each day of the hearing, necessitating the shorter hearing days he requested. No corroborative evidence, such as CT scans, a recent medical certificate or occupational therapy assessment, was provided about the permanency and impact of the back injury on the Applicant’s driving capacity, despite this being flagged by the Respondent’s written submissions of 20 May 2024, ample time for the Applicant to provide updated information. The Tribunal accepts the Respondent’s contention that the two-paragraph letter from the father’s GP (written almost five years ago) lacks sufficient detail to constitute probative evidence that he is unable to drive for longer than 15 minutes. The Tribunal also notes that bone fractures heal.
The Tribunal finds, based on the evidence before it, that the Applicant’s father’s injuries are not sufficient reason for the father to be unable to drive his son to and from school or to other social outings, as other parents and carers would be expected to do, consistent with Rule 3.4, Reasonable family, carer and other support. The capacity of the mother or her household to transport the Applicant to school on days when the Applicant resided with her was not known to the Tribunal, because little information was provided about the mother’s role in the Applicants life.
The Applicant already has ten hours of support worker assistance during the week, which, while not referenced by the father in written submissions, is presumably to assist the Applicant prepare for school. His father described the lengths to which he went to prepare his son in the mornings, and it is difficult to envisage there were any remaining tasks being performed by the support worker. Arrangements when the Applicant is at his mother’s house were not explained.
The Applicant submitted that the support worker would be required to drive him to and from school each day because the length of time and the behaviour of other students on the school bus provided for students with disability were difficult for him to cope with and he experienced dysregulation. There was no independent evidence provided of this dysregulation, or of the additional cost of funding a support worker to provide a vehicle for these journeys. The Applicant’s father told the Tribunal he had requested individualised transport for his son from the state education department but that it was only for those who
“[W]ould be a danger to the driver, themselves or other passengers, and that’s not really the case with [the Applicant].”
The Applicant’s psychologist, Mr Graham Shaw reported that the Applicant experienced emotional distress associated with the commute but was unable, during the hearing, to recall any detail provided by the Applicant. He acknowledged several times that his report was based on the father’s claims, such as the following comment:
“[Applicant’s father] reported that [the Applicant] exhibits emotional distress associated with his daily bus commute, where he is triggered by crowds and loud noises.”
The Applicant’s reflections on the school transport were not recorded in the report.
Mr Shaw recommended seven hours daily of support worker assistance to help the Applicant build his capacity for daily living tasks and ensuring he has more support to confide in when experiencing emotional distress. He also recommended a transport allowance so that the Applicant can access family and appropriate Aboriginal Health Services as well as accessing social groups and activities.
The Respondent contended that the support worker could accompany the Applicant to school on the bus and assist with any dysregulation. It would also help prepare the Applicant for an adult life using public transport. The Respondent did not provide further evidence of how this assistance would be provided; if it was likely to be successful and how the support worker was supposed to do this twice each day within the ten hours of support worker assistance currently provided.
The Occupational Therapy (OT) Report provided by Josh Stubing reported the Applicant had a 50% (school) attendance rate, which he attributed to the Applicant’s reported dysregulation during school bus commute time of 50 minutes and consequent school refusal. The OT recommended NDIS-funded transport. Mr Stubing confirmed in cross examination that the attendance rate figure had been provided to him by the Applicant’s father. Despite several requests made by the Tribunal for the father to seek evidence of school attendance provided by the school, the Applicant’s father did not do so.
Mr Stubing told the Tribunal he had not had the opportunity to conduct a functional assessment of the Applicant, and his report was based on reported data, not observed data. However, he explained his recommendation that the Applicant receive 16 hours of support worker assistance was based on the Applicant’s need for assistance preparing for school and completing the school drop-off in a two-hour morning shift and additional six hours per week to enable the Applicant to attend therapy appointments. During school holidays he had recommended 14 hours of support worker assistance. (He also agreed there had been an error in referencing thirty hours of support worker assistance, weekly, which had been relied upon by the Applicant.)
Mr Stubing had only hazy recollections of seeing other independent reports and the Applicant’s father reminded him that he had sent photographs of phone photos providing details of his NDIS plan, a quote for the recommended bike and the behavioural support plan recommendations. It was also unclear whether Mr Stubing had relied on the photographs in drawing his conclusions. The Tribunal found the photographs, when provided, to be of little further assistance other than confirming that the Applicant’s father could send and receive text messages, which might have been helpful in preparing for hearing.
The behaviour support practitioner, Paige McGowan, who assisted the Applicant with skills development at school, had also reported the Applicant’s difficulty travelling on the school bus, based, as she admitted in cross examination, not on independent observation but:
“[B]ased on reports from-yes-the family and [the Applicant].”
Ms McGowan went on to discuss her suggestion that sensory supports “like headphones” would help him to regulate his behaviour on the bus. Her proposal that the Applicant receive four hours a day support worker assistance on weekdays and five to six hours on weekends was:
“[B]ased on [the Applicant’s father] indicating that he needed increased support to support [the Applicant] with his daily routines and, I guess, community access, because he, I believe, has a disability himself and was struggling”.
[…]”my personal observations of having contact with [the father] …I believe [the father] would have challenges supporting [the Applicant]…and probably from ongoing conversations with [the Applicant] …getting his evaluation on how things go at home, I think that the need for support is definitely warranted now”.
Ms McGowan agreed she was not basing this on an independent assessment of the father, but on her own belief. She considered the Applicant to be very aware of his challenges and that additional support worker assistance would enable him to “go out into the world” and become more independent.
Ms McGowan spoke with real concern and enthusiasm for the Applicant and conveyed her understanding of his social isolation and growing appreciation of his approaching adulthood and independence. She clearly did not consider his father was able to meet his emerging needs and for her, additional support worker hours were one answer to the gaps in his life. Ms McGowan was aware of the Applicant’s affection for his mother and observed that he enjoyed being with her. His mother’s efforts to prepare him for adulthood were unclear.
Both Ms McGowan and Mr Stubing referenced their concern for the Applicant’s social isolation and his unpreparedness for independent living. They saw a support worker primarily as a means of getting the Applicant out of the house.
The Tribunal recognises that it has devoted many paragraphs to detailing the evidence of various experts about the requested increase in hours of support worker assistance by an additional 12 hours during the week and 18 hours on weekends. In part, this was to untangle the differences both in recommended hours and the role the support workers would play during those additional hours. What has also emerged is the concerning picture of an isolated young man who will turn 18 early in 2026 and is badly in need of social communication skills and independent living skills.
While the Applicant’s lack of social skills and his social isolation has been identified to the satisfaction of the Tribunal, the Tribunal finds there is insufficient evidence that support workers working with the Applicant for the increased 22 hours each week during school terms and 18 hours each week during school holidays would, in the absence of a well-defined social skills development program, address his social skills deficit.
The Tribunal also finds that there is lack of clarity about how the five days per fortnight at the Applicant’s mother’s house would affect the distribution of the additional support worker hours or even if a support worker would be welcome in the mother’s home.
The Respondent contended and the Tribunal accepts that a child’s social interaction is the responsibility of parents and caregivers. While mindful of the child’s isolation and understanding of his limited opportunities for social interaction at his father’s house, the requirements of Support Rule 3.4, is the usual responsibility of parents and caregivers applies. In this case the Applicant is a teenager without physical disabilities and with a degree of social difficulties which may be attributable to both his impairments and isolation.
The Tribunal also understands that the Applicant’s father wishes to use some of the additional support worker hours to transport his son to and from school and so reduce his dysregulated behaviour and boost his school attendance. This wish was taken up and recommended by several expert witnesses, without any independent confirmation either of the behaviour on the bus or the school attendance. The Tribunal considers this to be a poor reflection on the professionalism of the expert witnesses whose evidence accordingly had limited probative value. In the absence of independent verification, the Tribunal finds there is insufficient evidence to warrant an increase in support worker hours as reasonable and necessary and that Rule 3.1, value for money, and Rule 3.4, Parents and Carers, are not met.
Occupational Therapy
The Applicant has sought 50 hours annually of occupational therapy and 25 hours of travel. The Occupational Therapist, Josh Stubing and other therapists considered the Applicant had several ASD-related deficits in the areas of social skills and self-care which would benefit from occupational therapy, including meal preparation, laundry, personal organisation and tying shoelaces, as well as his fine motor skills.
The Respondent considered that 52 hours of occupational therapy is reasonable and necessary, but not the hours of travel requested.
During Mr Stubing’s cross examination, he explained that occupational therapy would best be done in the home because:
“I have always found it more realistic to do it in a home-based setting because it is, the people that we’re working with, it’s their safe space. And in therapy, that’s where we would be looking to translate the skills to, if that makes sense. For example, if they were working on basic meal preparation it would be challenging to do in a therapy room. But I do think the home-based setting is probably the most beneficial”.
The Respondent did not challenge Mr Stubing’s assertion that these life skills were better taught in a home-based setting and the Tribunal accepts Mr Stubing’s assertion as reasonable. While it might be true that parents should teach independent living skills to teenagers, the Tribunal recognises that this Applicant, with ASD, is on the verge of transition to adulthood. This transition might be extremely difficult without self-care and independent living skills and the Applicant appears to have few of them. In his case, one parent appears to be absent and invisible and the other incompetent.
The Respondent based their opposition to the provision of travel time for occupational therapy on the lack of medical evidence that the Applicant’s father was unable to drive the Applicant, which would otherwise be a reasonable expectation of carers and family members. Generally, the Tribunal has accepted the Respondent’s contention concerning the lack of medical evidence about the father’s disabilities but does not consider it applies in the provision of occupational therapy support, which is more effective, according to the evidence, if provided in the Applicant’s home. The Tribunal finds there is sufficient evidence that the provision of travel for the OT to attend the house is a reasonable and necessary support.
The Applicant sought an additional 14 hours of physiotherapy and 13 hours of related travel. In his report, the occupational therapist, Josh Stubing, recommended an increase in physiotherapy to 26 hours annually, so that the Applicant would receive an hour of physiotherapy each fortnight, including in school holidays.
Mr Stubing based his recommendation on the need to improve the Applicant’s limited fine motor skills which were reduced due to his impairment of ASD, but also
[T]o improve the Applicant’s upper limb and score strength to participate in school and sporting activities (such as martial arts).
The Respondent contended, and the Tribunal accepts, that the goals of increasing the Applicant’s general fitness and his promotion in school and sporting activities are not related to his disabilities, acknowledging that they may improve the Applicant’s confidence to engage in team activities. The Tribunal also accepts that the need for improved fine motor skills, so that he could, for example, tie his shoelaces, is a reasonable request related to the Applicant’s disabilities. The Respondent proposed an increase in physiotherapy hours to 15 annually, which would provide one hour of physiotherapy per month and 3 hours of report writing.
During the hearing, the Tribunal asked if the Applicant’s physiotherapist, Cody Barrett, if could assist the Applicant with his fine motor skills, and was advised that this would not be possible for everyday living skills:
“I can do the fine motor with the catching and the throwing, but I’d definitely recommend an OT for that more day-to-day using his shoelaces, tying – yes.”
In these circumstances, where the OT considers it to be the physiotherapist’s task to improve his fine motor skills and the physiotherapist considers it to be the OT’s task, the Tribunal finds there is insufficient evidence that any additional hours of physiotherapy sought are reasonable and necessary, including the three additional hours supported in the Respondent’s submissions. The Tribunal considers that the additional hours of occupational therapy offered by the Respondent will accommodate the Applicant’s need for improved fine motor skills.
The Applicant requested 26 hours of exercise physiology annually (that is, an hour each fortnight) and an additional 13 hours of travel. The request appeared to be based on the report of Mr Graham Shaw, a psychologist who recommended the Applicant engage with exercise physiology/physiotherapy to help him:
Release anxious energy and improve his physical, mental and emotional well-being.
His recommendation was consistent with that of the Occupational Therapist, Josh Stubing, although neither therapist demonstrated any direct knowledge of the Applicant’s state of physical, mental and emotional wellbeing, other than the results of a self-assessment test. Both therapists commented on the Applicant’s politeness and reserve.
The Respondent contended that the thirty hours of psychology support available to the Applicant should assist with managing the emotional impact of the Applicant’s ASD and there was no evidence about whether physiology support will substantially improve the life-stage outcomes and be of long-term benefit to the Applicant, consistent with Rule 3.1 (a).
In closing submissions, the Respondent also contended that the additional hours sought of physiotherapy and physiology could be covered by the global figure of 80 hours capacity building supports annually.
The Applicant requested that the Exercise Physiologist be added to the list of witnesses at the commencement of the hearing. Again, this was irregular but the Tribunal allowed it in the interests of hearing all the available evidence. In the event, the Applicant did not call the exercise physiologist and Mr Shaw, who had recommended an exercise physiologist in tandem with a physiotherapist, told the Tribunal:
“I think exercise physiology and physiotherapy are essentially the same thing”.
The Tribunal finds this less than helpful but accepts Mr Shaw’s general recommendation that the Applicant receive weekly one-hour sessions of one or the other as a means of addressing the Applicant’s anxiety. He considered these sessions would provide the Applicant with more “structure” given the Applicant’s impairments of dystonia and dyspraxia.
The Tribunal finds there is insufficient evidence the provision of 26 hours annually of exercise physiology is reasonable and necessary.
Similarly, although 50 hours of speech therapy and 25 hours of associated travel were requested by the Applicant, the evidence that this was reasonable and necessary was limited.
The Occupational therapist, Josh Stubing, recommended speech therapy to address expressive and receptive communication concerns. Again, Mr Shaw, the treating psychologist, also considered speech therapy to be necessary but agreed, before the Tribunal, that he had seen no outward speech impediment or impairment and that:
“Outwardly, he did communicate quite well”.
It was Mr Shaw’s view that:
“[T]he more support in those areas that we can give to a client with, you know, ASD and the other diagnoses, apraxia, dystonia, together I think the better for a client to meet their NDIS goals”.
Mr Shaw considered it the role of a speech therapist to assess the required number of hours.
The behaviour therapist, Ms McGowan, confirmed the Applicant had speech difficulties and advised he receive speech therapy. She told the Tribunal:
“[the Applicant] has quite, like, a pronounced, I guess it’s – I’d call it maybe a stutter. I’m not a speech therapist, but he does get quite caught up on his words, and his fluency. And I do believe that, I guess, in terms of, like, [the Applicant] using non-verbal and verbal communication together, that’s probably something he struggles to integrate.”
Mr Stubing, the OT, had recommended speech therapy in his report but could not recall at the hearing whether the Applicant was currently receiving any therapy.
As the Applicant’s father told the Tribunal, there was agreement among therapists that his son needed speech therapy, but he had not been able to find a speech therapist able to assess and treat his son.
The Tribunal accepts that there may be a need for the Applicant to have speech therapy but finds, in the absence of an independent assessment by a speech therapist, the Tribunal lacks the standard of evidence required for it to be “positively satisfied” that this was a reasonable and necessary support, let alone of the requisite number of hours. The Tribunal considers that the regular engagement of a support coordinator might rectify this problem and if speech therapy is recommended it can be included in a future plan.

Similarly, the Applicant’s request for an additional thirty hours of psychology with twenty-five hours of travel, which would provide an hour’s therapy each week in the Applicant’s home, was not supported by independent evidence. Certainly, Mr Shaw recommended additional psychological capacity building to assist the Applicant with psychosocial functioning. Mr Shaw primarily based his recommendation on the Applicant’s father’s description of his son’s behaviour, discussion with his Behaviour Support Practitioner, a Vineland 3 assessment, which was based on his father’s responses, and a DASS-21 assessment, which is a self-report scale of anxiety and stress. Mr Shaw did not recommend a certain number of hours of psychology annually in his report and was aware that the Applicant was receiving weekly behaviour support at school.
The Tribunal finds, based on the evidence provided to it, that the current number of hours of psychology provided annually, 30 hours, are reasonable and necessary but that the additional 20 hours annually requested by the Applicant is not supported by either Mr Shaw’s evidence or any other independent evidence. The Tribunal considers that in combination with the provision of a new Behaviour Support Plan and training in the implementation of that plan, the Applicant may experience additional therapeutic support for the anxiety and other psychological conditions associated with his ASD and that if this is not the case, a request for additional therapy can be made. Again, under the watch of a case coordinator, it will be possible for his treating psychologist to determine if further hours of psychological therapy should be provided. Regarding the travel hours sought, the Tribunal finds there is insufficient medical evidence that the father is unable to drive his son to the appointments.
As previously referenced, the provision of a Freedom Bike has been agreed by the Respondent since it was included in an earlier plan, subject to the provision of a quote, which the Applicant then failed to provide. The Tribunal accepts this and that an appropriate quote has now been provided by the Applicant. Accordingly, this support is reasonable and necessary and notes it will be included in his new plan.
The Applicant also provided, after the conclusion of the hearing, a quote for a modified bike rack to be mounted on the Applicant’s father’s car to assist the Applicant transport a bike. The Respondent contended that the provision of the quote after the conclusion of the hearing had not afforded it the opportunity to examine the quote and there were other related questions, such as the ability of the mother or her partner to move the bike, which had also not been addressed.
The Tribunal accepts that the quote for the bike rack was provided irregularly and denied the Respondent procedural fairness. There remain, as the Respondent contended, other questions pertaining to the provision of a bike rack which would need to be addressed before it could be determined to be reasonable and necessary.
The Tribunal finds there is insufficient evidence to determine if the bike rack is a reasonable and necessary report and notes that the Applicant’s father’s Occupational Therapy report references that a bike rack is to be provided to the Applicant’s father. Again, a case-coordinator should be able to determine the status of this requested support.
The Applicant requested 52 hours annually of both swimming and hippotherapy. The Applicant relied on the recommendations of the occupational therapist and his treating physiotherapist.
The Respondent contended that the evidence of hours required was limited and the recommendations of both therapists were based on the advice of the Applicant’s father, rather than independent clinical evidence. In cross examination, both Mr Stubing and Mr Barrett agreed that they had not carried out independent assessments. Instead, they had relied on the father’s advice that the Applicant had enjoyed and responded to swimming therapy some years earlier and Riding for the Disabled opportunities. The Respondent contend there was no evidence that the Applicant had engaged with hippotherapy (horse-riding therapy) or that he would respond to it and that the Applicant could already swim, having previously received swimming therapy classes.
The Respondent submitted that the provision of supports should not be seen as a shopping list of ‘nice-to-have” by the Applicant and that there be an associated therapeutic contribution demonstrated. The Applicant considers that hippotherapy (in a form provided previously by Riding for the Disabled) and swimming therapy have assisted the Applicant with skills development and that only regular classes, in this case, weekly, will assist him to further those skills.
In cross examination, the Applicant’s physiotherapist, Cody Barrett confirmed he understood the Applicant could already swim, based on the father’s advice. His report recommended swimming classes to provide the Applicant to provide him with greater water safety; he observed that drowning was among the leading causes of death for individuals with ASD. In the absence of a swimming assessment, it was not clear if this risk applied to this Applicant.
As contended by the Respondent, the Tribunal accepts that supports provided to participants in this Scheme are not for general skill development but to address participants’ impairments. The Tribunal, while recognising the Applicant may have had swimming classes funded in previous plans, when he was younger, finds, no case has been made for the role additional swimming lessons would play in addressing his impairments associated with ASD. They may provide him with accomplishments, but to satisfy the requirements of the legislation that they are reasonable and necessary, they need to have therapeutic value.
Mr Barrett further considered Hippotherapy would assist with the Applicant’s sensory needs (his report said it was proven to improve neurological function and sensory input) and gross motor skill development. He agreed he would recommend hippotherapy as a standard therapy for children with ASD and told the Tribunal this recommendation was independent of the father’s advice. The Tribunal notes the Applicant is not a child but an adolescent aged sixteen but accepts that there may be therapeutic value in this support, although how it might assist this Applicant particularly, was not revealed to the satisfaction of the Tribunal.
The Tribunal understands that there are 80 hours annually provided to the Applicant for a range of capacity building therapies in any combination preferred by the Applicant. The Respondent has described this as giving choice and control to the Applicant.
While the Tribunal has concerns that the Applicant is more focused on skills and fitness development deriving from hippotherapy and swimming than on their therapeutic value, the Tribunal finds, based on the evidence before it, that there is some therapeutic value and that they are therefore appropriately included in the Applicant’s 80 hours of capacity building supports, along with the music therapy and for similar reasons.
The Applicant has sought $1816 in consumables for various aides with his impairments. The Applicant provided no breakdown of this very precise amount and the only reference to aides was provided by his behavioural support practitioner, who suggested fidget toys and headphones for use on the school bus. The Tribunal understands the Applicant already receives $1500 annually for consumables and finds, in the absence of any evidence being provided to support this request, that an increase to $1816 is not reasonable and necessary.
CONCLUSIONS
The Tribunal remains concerned that the Respondent apparently has no visibility of the role the Applicant’s mother and her household play in the provision of supports to the Applicant and accepts that she is to be treated as Child Representative in the absence of any evidence that she would not have “parental responsibility” for the purposes of section 75 of the Act, as proposed by the Respondent. Lack of information about the mother’s role became yet another impediment to the Tribunal’s ability to make its determination and, should there be further reviews sought by the Applicant, this oversight might be then corrected. The Applicant’s father has declined to provide the mother’s contact details to the Tribunal and accordingly the mother will not be provided with a copy of this decision.
The Tribunal also notes that the Applicant was approaching 17 years of age by the time of the hearing and yet played no part in these proceedings, other than speaking to some of the therapists who provided evidence. The Tribunal considers that the Agency’s guidelines and Rules regarding children make clear that the Respondent has a duty of care to child participants and encourages the Agency to work directly with the Applicant in preparation of his next plan. Indeed, the Respondent’s duty of care to this child should, in the opinion of this Tribunal member, have played a larger part in the Respondent’s management of this child’s supports, noting the ongoing absence of a care coordinator and the time taken to achieve a hearing. The provision of an appropriate case coordinator will undoubtedly assist this young man to consider his current and future needs for himself.
Having regard to the evidence independently and cumulatively, and for the reasons outlined above, the Tribunal accepts that the Respondent has agreed to four additional supports and is satisfied that these are reasonable and necessary and accordingly satisfy the legislative requirements. For completeness, these are the additional supports of 52 hours annually of occupational therapy, a bike, 70 hours of case coordination annually at level 2 and an additional ten hours for the development of a Behaviour Support Plan and training.
The Tribunal is not satisfied, based on the evidence provided and for the reasons outlined above, that the additional three hours of physiotherapy proposed by the Respondent are reasonable and necessary, satisfying the legislative requirements of section 34(1) of the Act.
The Tribunal is satisfied, based on its findings on the evidence provided, that twenty five hours annually of transport support for the occupational therapist requested by the Applicant, is a reasonable and necessary support and that this satisfies the legislative requirements (or policy) as contemplated by section 34(1).
The Tribunal otherwise concludes, having regard to the evidence and for the reasons outlined above, that the other supports sought by the Applicant and disputed by the Respondent, are not reasonable and necessary and do not satisfy the legislative requirements of section 34(1) of the Act.
DECISION
Pursuant to section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the decision under review is set aside and remitted to the Respondent with the direction that the Applicant’s statement of participant’s supports be varied so as to specify the following as reasonable and necessary supports:
(1)30 hours annually psychology support,
(2)12 hours annually physiotherapy support,
(3)50 hours annually occupational therapy support, and additionally, 25 hours support for occupational therapist travel,
(4)80 hours annually for other therapies (inclusive but not limited to music therapy, speech therapy, exercise physiology, hippotherapy and swimming),
(5)30 hours annually for behaviour support plan development and training,
(6)70 hours annually Support Coordination (Level 2),
(7)$2,321.00 to fund the purchase of a ‘freedom wheels modified bike’ in accordance with the quotation provided.

141. I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of the Hon. P Goward AO, Senior Member.

.....................[sgd].............................
Associate
2 October 2024

Dates of hearing:

9, 10 and 11 September 2024 – By Video

Applicant:

Self-represented

Counsel for the Respondent:

Ms Amy Douglas-Baker

Solicitor for the Respondent:

E Kijagulu, Maddocks

[2024] AATA 3506

2 October 2024

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Expert Evidence

Natural Justice

Procedural Fairness

Standing

Statutory Construction

Dates of hearing:	9, 10 and 11 September 2024 – By Video
Applicant:	Self-represented
Counsel for the Respondent:	Ms Amy Douglas-Baker
Solicitor for the Respondent:	E Kijagulu, Maddocks