CXZS and National Disability Insurance Agency

CXZS and National Disability Insurance Agency [2021] AATA 511 (16 March 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2019/7327
Re:CXZS
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:16 March 2021
Place:Sydney

The decision under review, made by the National Disability Insurance Agency on 28 August 2020, is affirmed.
.................................[sgd].......................................
Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary support – where applicant diagnosed with autism spectrum disorder requiring substantial support – Applied Behaviour Analysis (ABA) therapy for 20 hours per week – program supervision for six hours per month – whether requested supports are reasonable and necessary – whether supports represent value for money – whether supports will be or likely to be effective and beneficial – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975(Cth) s 42D
National Disability Insurance Scheme Act 2013(Cth) ss 3, 4, 31, 33, 34, 100, 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013(Cth)
CASES
FRCT and National Disability Insurance Agency [2019] AATA 1478
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
WKZQ and National Disability Insurance Agency [2019] AATA 1480
SECONDARY MATERIALS
Ariane V. S. Buescher et al, ‘Cost of Autism Spectrum Disorders in the United Kingdom and the United States’ (2014) 168(8) JAMA Pediatr 721-728
Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)
Doreen Granpeesheh et al, ‘Applied behavior analytic interventions for children with autism: A description and review of treatment research’ (2009) 21(3) Annals of Clinical Psychiatry 162-173
John W. Jacobson et al, ‘Cost-benefit estimates for early intensive behavioural intervention for young children with autism – General model and single state case’ (1998) 13 Behavioral Interventions 201-226
Operational Guideline – Planning
Susan L. Hyman et al, ‘Identification, Evaluation, and Management of Children With Autism Spectrum Disorder’ (2020) 145(1) American Academy of Pediatrics 1-64
REASONS FOR DECISION
Dr L Bygrave, Member
16 March 2021
INTRODUCTION

The applicant, CXZS, is currently aged nine and a half years old. He was assessed and diagnosed with autism spectrum disorder when he was two and half years old.
On 9 June 2016, the applicant’s father and representative, Dr ‘A’, completed an access request form for the applicant to become a participant in the National Disability Insurance Scheme (the NDIS). The applicant’s first NDIS plan commenced on 10 October 2017.
The matter under review relates to the applicant’s requested funding for the following Applied Behaviour Analysis (ABA) therapy supports in his NDIS plan that commenced on 12 August 2019:
ABA Therapist 20 hours at $40 / hour = $800 per week = $38,400 for 48 weeks
Program Supervisor 6 hours per month $170 / hour = $1020 per month = $12,240 per year
- Total = $50,640 per year[1]
[1] Exhibit T-T11, page 88.
On 12 August 2019, the National Disability Insurance Agency (the NDIA) decided to provide capacity building daily activities funding of $10,087.48 in the applicant’s NDIS plan that commenced on 12 August 2019 and had a review date of 11 August 2020. This funding for improved daily living was for ‘an allied health professional or therapist to assess and provide support in assisting [the applicant] to meet [his] goals…’.[2]
[2] Exhibit T-T18, page 140.
On behalf of the applicant, Dr ‘A’ sought review of this decision in accordance with section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the Act).
On 18 October 2019, the NDIA decided not to increase the applicant’s capacity building daily activity budget (the internal review decision). The internal review decision sets out the NDIA’s reasons for deciding not to increase funding for capacity building daily activities to include provision of ABA therapy.
Dr ‘A’ subsequently made an application on 7 November 2019 to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review of the internal review decision.
On 27 August 2020, in accordance with section 42D of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal (differently constituted) remitted the internal review decision to the Chief Executive Officer (CEO) of the NDIA for reconsideration.
On 28 August 2020, the NDIA determined the applicant’s NDIS plan that commenced on 12 August 2019 and had a review date of 11 August 2021 comprised funding for capacity building daily activities in the total amount of $20,147.40.[3] It is this decision made by the NDIA on 28 August 2020 that is now the decision to be reviewed by the Tribunal. Notably, this decision simply extended the applicant’s NDIS plan for a further 12 months and added funding in the amount of $10,059.92 for the applicant’s capacity building daily activities.
[3] Exhibit R4.
The matter was heard by the Tribunal in Sydney on 10, 11 and 12 February 2021. The applicant was represented by his father, Dr ‘A’, and the NDIA had legal counsel.
RELEVANT LEGISLATION
The NDIS statutory framework
Guidance on interpreting the statute is provided in the objects and principles in the Act. The objects are set out in section 3 of the Act and relevantly include:
·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
·providing reasonable and necessary supports, including early intervention supports for participants in the NDIS launch; and
·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
·promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
·raising community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability.
Paragraph 3(3)(b) of the Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Section 4 outlines general principles guiding actions under the Act, which relevantly include:
·affirming that people with disability:
ohave the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development;
oshould be supported to participate in and contribute to social and economic life to the extent of their ability;
oshould be supported to exercise choice in the pursuit of their goals and the planning and delivery of their supports, and to receive reasonable and necessary supports including early intervention supports;
·acknowledging and respecting the role of families, carers and other significant persons in the lives of people with disability; and
·promoting innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability, as well as positive personal and social development of people with disability including children and young people.
Subsection 4(11) of the Act further provides that:
Reasonable and necessary supports for people with disability should:
(a)support people with disability to pursue their goals and maximise their independence; and
(b)support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
Under subsection 209(1) of the Act, the Minister may make rules prescribing matters under the Act. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules) are relevant to this matter and form part of the legislation.
Operational Guidelines have also been drafted by the CEO of the NDIA to assist staff to make decisions and perform functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[4] The relevant Operational Guideline in this matter is the Operational Guideline – Planning (the Planning Operational Guideline).
[4] [1979] AATA 179; (1979) 2 ALD 634.
Reasonable and necessary supports
Chapter 3 of the Act outlines provisions for participants and their plans: section 31 of the Act outlines principles relating to participants’ plans. These include that the preparation, review and replacement of a participant’s plan should, so far as reasonably practical, be underpinned by the right of the participant to maximise their choice and independence, and to facilitate tailored and flexible responses to their goals and needs.
Section 33 of the Act sets out matters that must be included in a participant’s plan: pursuant to paragraph 33(2)(b), a participant’s plan must include a statement that specifies the reasonable and necessary supports that will be funded under the NDIS.
Subsection 34(1) of the Act sets out criteria for funding reasonable and necessary supports:
Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. [emphasis added]
Subsection 34(2) of the Act states that the NDIS rules ‘may prescribe methods or criteria to be applied’, or matters to which the CEO (and therefore the Tribunal) is to have regard, in deciding whether or not he or she is satisfied of the matters mentioned in subsection 34(1).
EVIDENCE
The evidence before the Tribunal is set out as follows:
·evidence about the applicant;
·evidence from the applicant’s ABA therapy program supervisor/s, Ms ‘E’ and Ms ‘F’;
·evidence from the applicant’s speech pathologist, Ms ‘G’;
·literature/research papers filed by the applicant; and
·evidence from Associate Professor ‘I’ (paediatrician).
Evidence about the applicant
The applicant lives with his parents, Dr ‘A’ and Mrs ‘A’, in the north-west area of Sydney. He currently attends a mainstream year four class at a private primary school.
When the applicant was two years old, he was assessed by Dr ‘B’ (paediatrician) who opined in a report dated 21 November 2013 that the applicant ‘almost certainly’ had autism spectrum disorder and recommended a comprehensive assessment.[5]
[5] Exhibit T-T3, page 21.
Ms ‘C’ (clinical psychologist) assessed the applicant on 24 February 2014 and provided a psychological assessment report dated 3 March 2014. Ms ‘C’ diagnosed the applicant with autism spectrum disorder and opined that he will require substantial support (level 2) in terms of his impairment in ‘social interaction and social communication’, and ‘his restricted and repetitive interests, activities and behaviours’.[6]
[6] Exhibit T-T4, page 28.
According to Dr ‘A’ and assessment reports before the Tribunal, the applicant attended ABA therapy for 40 hours a week from September 2014 until prior to commencing school in 2017. Since starting school, he has participated in ABA therapy for 20 hours a week during the school term and up to 40 hours a week in school holidays.
In his NDIS plan that started on 12 August 2019, the applicant’s goals were listed as follows:
·to be able to produce spontaneous, in-context sentences to positive impact his learning, communication to express his needs and wants and increase his social engagements;
·to be able to engage in activities with his peers more independently, and to develop interests and concentration in a wider range of activities to become more socially engaged;
·to improve his age appropriate planning and coordination skills to be able to engage and take part in sporting activities of his interest;
·to continue working on safety awareness in public places and to learn strategies to self-regulate his emotions to work well in group and social environments;
·to be able to improve his concentration and attention on activities for longer periods of time so that he can learn and participate in activities at school and home; and
·to be able to improve his comprehension so that he would be able to understand the concept/theme in a storybook or a game.
At the outset, it is also relevant to note that Dr ‘A’ is a medical general practitioner. A report by Ms ‘D’ (clinical psychologist) dated 31 July 2018 stated that Dr ‘A’ and Mrs ‘A’ have been ‘proactive in seeking assistance’ for the applicant and his ‘home environment appears to be a stable and nurturing one, in which all his needs are being met’.[7]
[7] Exhibit T-T10, page 73.
Although neither Dr ‘A’ nor Mrs ‘A’ provided oral evidence at the Tribunal hearing, it was clear from Dr ‘A’’s pertinent written and oral submissions on behalf of the applicant that both he and his wife are actively involved in all decisions relating to their son and his therapy.
Evidence from Ms ‘E’ (ABA program supervisor)
In June 2019, Ms ‘E’ provided an ABA assessment report for the applicant. Ms ‘E’ stated that the applicant commenced an early intervention learning program with Leaps Ahead Early Intervention using techniques of ABA therapy in September 2016. She wrote that the applicant has participated in 20 hours ABA therapy a week during a school term and up to 40 hours ABA therapy a week during school holidays. These sessions ‘consist of 1:1 teaching of skills in all strands of learning, as well as social skills groups with peers’.[8]
[8] Exhibit T-T11, page 76.
In her report, Ms ‘E’ set out the results from the Assessment of Basic Language and Learning Skills – Revised (ABLLS-R) administered to the applicant in June 2019. These results compared the applicant’s progress in relation to ABLLS-R assessments undertaken in September 2016 and January 2018. Ms ‘E’ reported the following results for the applicant in relation to the 26 tasks in the ABLLS-R in June 2019:
·cooperation and reinforcer effectiveness – the applicant had mastered all 19 tasks/skills;
·visual performance – the applicant had mastered all 27 tasks/skills;
·receptive language – the applicant had mastered 56 out of 57 tasks/skills;
·motor imitation – the applicant had mastered all 27 tasks/skills;
·vocal imitation (echoics) – the applicant had mastered all 20 tasks/skills;
·requests (mands) – the applicant had mastered 15 out of 29 tasks/skills;
·labelling – the applicant had mastered 38 out of 47 tasks/skills;
·intraverbals – the applicant had mastered 18 out of 49 tasks/skills;
·spontaneous vocalisations – the applicant had mastered all nine tasks/skills;
·syntax and grammar – the applicant had mastered 13 out of 20 tasks/skills;
·play and leisure – the applicant had mastered three of 15 tasks/skills;
·social interaction – the applicant had mastered eight of 34 tasks/skills;
·group instruction – the applicant had mastered three out of 12 tasks/skills;
·classroom routines – the applicant had mastered eight of ten tasks/skills;
·generalised responding – the applicant had mastered five out of six tasks/skills;
·reading – the applicant had mastered all 17 tasks/skills;
·math – the applicant had mastered 24 out of 29 tasks/skills;
·writing – the applicant had mastered all 10 tasks/skills;
·spelling – the applicant had mastered all seven tasks/skills;
·dressing – the applicant had mastered 10 out of 15 tasks/skills;
·eating – the applicant had mastered five out of 10 tasks/skills;
·grooming – the applicant had mastered six out of seven tasks/skills;
·toileting – the applicant had mastered all nine tasks/skills for his gender;
·gross motor – the applicant had mastered 29 out of 30 tasks/skills; and
·fine motor – the applicant had mastered all 28 tasks/skills.[9]
[9] Exhibit T-T11, pages 78–87. The Tribunal notes that only 25 task/skill areas were contained in Ms ‘E’’s June 2019 assessment report.
Ms ‘E’ reported the applicant had mastered all skills in the task areas of cooperation and reinforcer effectiveness, visual performance, motor imitation, vocal imitation, spontaneous vocalisations, reading, writing, spelling, fine motor and toileting. However, he continued to require ‘intensive work’ in the learning categories of requesting, labelling, intraverbals, syntax and grammar, play and leisure, social interaction, group instruction, math, dressing and eating.[10] Ms ‘E’ concluded that:
ABA therapy is a researched and proven method of managing challenging behaviours by teaching more functional and appropriate skills. However, regular and intensive sessions are required for effectiveness and consistency across a number of settings including home and school. [The applicant] would greatly benefit from continued funding of his ABA hours for 2019 to focus on reducing behaviours by increasing his capacity to build skills in the areas of functional communication, social interaction and daily living.
For [the applicant] to continue to work towards achieving the goal of increasing his capacity to build opportunities that improve his independence in the areas of: functional communication, social interaction, and daily living; it is recommended that his ABA therapy sessions continue to be funded at 20 hours per week with a therapist to target the above skills from his ABLLS-R assessment. In addition, he will require 6 hours of supervision per month for his Program Supervisor to monitor and update his program. The total cost for this service would be $50,640.[11] [emphasis added]
[10] Exhibit T-T11, page 87.
[11] Exhibit T-T11, page 87.

In February 2020, Ms ‘E’ provided a letter of support for funding of program supervision hours, which effectively repeated the supports she requested in her June 2019 report. This letter also explained the role of the program supervisor is to ‘analyse’ the applicant’s ‘data’, provide his parents with training ‘to increase their capacity to follow through with behaviour strategies and generalise skills in therapy’, ‘upskill his current therapists’, update and modify the applicant’s learning programs, and work with the applicant’s school to ‘provide consistency with learning and behaviour management’.[12]
[12] Exhibit A2.
In oral evidence to the Tribunal on 10 February 2021, Ms ‘E’ confirmed she was the applicant’s ABA program supervisor in the periods from September 2016 to May 2020 and from October 2020 to the present. She said the applicant had gained ‘quite a lot of skills’ but still had ‘gaps’ in his learning that included daily living skills, the ability to undertake and complete tasks independently, and social skills.[13] In relation to the applicant’s results in the ABLLS-R in June 2019, Ms ‘E’ confirmed that once the applicant has ‘mastered’ a task, there was no requirement for him to relearn or continue to learn this skill.[14] She explained that ABA therapy was ‘data driven’ and based on the applicant progressing his skills.[15]
[13] Transcript oral evidence of Ms ‘E’, 10 February 2021, page 31.
[14] Transcript oral evidence of Ms ‘E’, 10 February 2021, page 41.
[15] Transcript oral evidence of Ms ‘E’, 10 February 2021, page 35.
Ms ‘E’ submitted that the applicant continued to require 20 hours of ABA therapy a week (approximately three hours a day) to address the gaps in his learning. She explained that these hours include the applicant participating in 1:1 home-based therapy, a ‘shadow’ (this is an ABA therapist who ‘shadows’ the applicant and intervenes in an academic or social situation if/when required) spending time with the applicant at school or home or in the community, and the participant practicing skills with his parents. She opined that informal supports provided by the applicant’s parents and/or teachers were not a substitute for a trained ABA therapist, but rather a ‘reasonable addition’ to the applicant participating in 20 hours a week of ABA therapy.[16]
[16] Transcript oral evidence of Ms ‘E’, 10 February 2021, page 33.
At the hearing, Ms ‘E’ was unable to provide specific details about the applicant’s current ABA program to the Tribunal. She acknowledged the Tribunal has no evidence of an ABA program specifically designed for the applicant, no information about the ‘breakdown’ of the requested 20 hours ABA therapy for the applicant (such as the hours to be provided by a junior therapist and a senior therapist), and no explanation about how the applicant’s ABA program is currently being implemented. In response to a question about why the applicant, currently aged nine and a half years and having already participated in intensive ABA therapy for more than six years, needed 20 hours of ABA therapy a week as opposed, for example, to five or 15 hours a week, Ms ‘E’ opined that ‘early intervention lasts until [a person is] an adult’, the applicant has ‘so many things’ to learn and he needs ‘practise of three hours a day to be able to… engage in those skills that he’s been learning’.[17] To support her opinion that early intervention is relevant to adulthood, Ms ‘E’ cited a 2009 research paper by Granpeesheh, Tarbox and Dixon (set out below).
[17] Transcript oral evidence of Ms ‘E’, 10 February 2021, pages 49 and 51.
In relation to explaining the applicant’s request of six hours a month for an ABA program supervisor, Ms ‘E’ (both in her February 2020 report and her oral evidence) referred to, amongst other matters, meeting with the applicant’s school to ensure consistency with his learning. Acknowledging she had been on leave from May to September 2020, Ms ‘E’ told the Tribunal that she had last visited or spoken with the applicant’s school/ teacher in March 2020, almost 11 months prior to the hearing. She was therefore unable to provide any information to the Tribunal about how the applicant’s ABA therapy program interacts with his learning at school and the school curriculum.
Evidence from Ms ‘F’ (ABA program supervisor)
Ms ‘F’ initially assessed the applicant when he attended the Lizard Children’s Centre in September 2014. She was then the applicant’s ABA program supervisor from January 2020 to August 2020 while Ms ‘E’ was on maternity leave.
In September 2020, Ms ‘F’ provided a report at the request of Dr ‘A’ and Mrs ‘A’ in response to reports written by Associate Professor ‘I’ and filed by the NDIA. In this report, Ms ‘F’ set out information about autism, ABA therapy techniques and notes from a school observation of the applicant she conducted in August 2020.
Ms ‘F’ reported that, in August 2020, the applicant was ‘currently not functioning at the level required for him to independently succeed academically and socially’ in the school environment, observing that he ‘significantly struggled with following group instructions’, and had difficulties attending to ‘a variety of tasks’ and ‘accurately answering schoolwork’.[18] She wrote that the applicant engaged in solitary play because he did not have the ‘skills necessary to initiate or maintain play’ with his peers.[19]
[18] Exhibit A6, page 2.
[19] Exhibit A6, page 2.
Ms ‘F’ opined that it is in the applicant’s ‘best interest to have 1:1 support in the form of a behaviour therapy shadow in the classroom environment’, with the goal to ‘fade out’ the use of a shadow over time.[20] She concluded that it was ‘highly recommended’ the applicant continue with 20 hours a week of ‘behaviour support’.[21]
[20] Exhibit A6, page 3.
[21] Exhibit A6, page 7.
Attached to Ms ‘F’’s report were her school observation notes from a single day in August 2020 and an (undated) detailed program for the applicant setting out goals for social skills including conversation building, conversation skills – body language, responding to questions, understanding compliments, learning how to play basketball, describing feelings, emotion words, and what to do when kids are being bullies.[22] This program also involved programs to attain daily living skills of washing hands, toileting and doing buttons on a shirt.
[22] Exhibit A7.
Ms ‘F’ provided oral evidence to the Tribunal on 11 February 2021. She confirmed she was the applicant’s program supervisor for the period from January 2020 to August 2020, had not seen the applicant since August 2020 and had no communication with Ms ‘E’ regarding the applicant’s current ABA therapy program. This is despite an apparent period of overlap between Ms ‘F’ becoming the applicant’s program supervisor in January 2020 and Ms ‘E’ going on maternity leave in May 2020.
At the hearing, Ms ‘F’ opined that the applicant could continue to benefit from 20 hours of ABA therapy a week ‘used the right way’ because he was ‘still making progress’.[23] Ms ‘F’ noted that the intention of the ABA therapy shadow at school was to ensure the applicant would become as independent as possible. She opined that 15 to 20 hours a week of ABA therapy was based on the applicant’s ‘capacity to learn’; this was not based on a specific program she had created but on the applicant’s ‘deficits’ in the home and school environments.[24]
[23] Transcript oral evidence of Ms ‘F’, 11 February 2021, page 84.
[24] Transcript oral evidence of Ms ‘F’, 11 February 2021, page 88.
Evidence from Ms ‘G’ (speech pathologist)
Ms ‘G’ completed an initial assessment of the applicant and completed a written report on 14 May 2020. The assessment results for the applicant was that he presented with:
a severe receptive and expressive language delay/disorder…
very low-level reading accuracy and reading comprehension…
moderate social communication difficulties and a mild speech sound delay…
[a] reading rate and spelling… within the range expected for his age and level of schooling.[25]
[25] Exhibit A5, pages 2 and 13.
Based on this assessment, Ms ‘G’ recommended the applicant ‘commence [speech] therapy to improve his receptive language, expressive language, reading accuracy and reading comprehension’ and monitor his reading rate and spelling to ‘ensure that they continue to develop as expected for his age and level of schooling’.[26]
[26] Exhibit A5, page 2.
Ms ‘G’ noted that the applicant would benefit from ‘regular, weekly speech pathology intervention focusing on his receptive and expressive language skills, speech sounds, literacy skills and social skills’, and provided a detailed management plan for the applicant.[27]
[27] Exhibit A5, page 13.
In the last page of her report, Ms ‘G’ sets out her support for the applicant to have continued access to NDIS funding for 20 hours ABA therapy a week under the program supervision of Ms ‘E’, and referred to a report by Roberts and Williams (2016) to support this submission.
Ms ‘G’ provided oral evidence to the Tribunal on 10 February 2021. She said that the applicant commenced speech pathology with her in 2020 participating in a one-hour session weekly and, in 2021, he has been participating in two one-hour speech pathology sessions per week. These sessions are held at the applicant’s school: one session focuses on the applicant’s reading and comprehension skills; and the other session concentrates on the applicant’s socialisation skills (30 minutes of 1:1 on a social thinking program and 30 minutes with the applicant’s peers in the playground). She observed that the applicant had made ‘gains’ in language and reading comprehension, but his progression in social skills was ‘slow’.[28]
[28] Transcript oral evidence of Ms ‘G’, 10 February 2021, page 60.
In her oral evidence, Ms ‘G’ reiterated her support for the applicant receiving NDIS funding for 20 hours ABA therapy a week. She accepted that this was primarily based on her reading the report by Roberts and Williams (2016) and that she had not read other research.
Evidence of Dr ‘H’ (paediatrician)
Dr ‘A’ filed two medical letters by the applicant’s paediatrician, Dr ‘H’. In a letter dated 4 February 2020, Dr ‘H’ recommended the applicant continue with ABA therapy at 20 hours a week ‘to help develop his social and emotional skills as well as address his Autistic symptoms’.[29]
[29] Exhibit A1.
In a further letter dated 6 April 2020, Dr ‘H’ provided a brief paragraph about ABA therapy and recommended:
[The applicant] requires ABA therapy to address issues of compliance and develop the skills to learn. [He] is severely affected by vocal stereotypic behaviours which affect his ability to learn. ABA uses targeted therapies to extinguish these behaviours. He has attention seeking behaviours which need to be addressed through therapy.
It is possible that 15 hours per week of ABA would be effective treatment for [the applicant].[30]
[30] Exhibit A3.
Dr ‘H’ did not give oral evidence at the Tribunal hearing.
Literature and research filed by the applicant
Prior to the hearing, Dr ‘A’ submitted a document summarising medical evidence and research regarding the effectiveness of ABA as a treatment for autism spectrum disorder,[31] and filed two research papers on costs associated with autism spectrum disorders (based in the United States of America and United Kingdom) and cost-benefit estimates for early intensive behavioural intervention for young children with autism.[32]
[31] Exhibit T-T1A.
[32] Ariane V. S. Buescher et al, ‘Cost of Autism Spectrum Disorders in the United Kingdom and the United States’ (2014) 168(8) JAMA Pediatr 721-728; John W. Jacobson et al, ‘Cost-benefit estimates for early intensive behavioural intervention for young children with autism – General model and single state case’ (1998) 13 Behavioral Interventions 201-226.
There was also discussion about two further research papers during the hearing regarding ABA therapy as an early intervention for older children with autism.
In her oral evidence, Ms ‘E’ referred to an article by Dr Doreen Granpeesheh et al in 2009. This article reviewed available research on ABA for older children and adolescents with autism and outlined the following clinical recommendations:
The lack of research on the optimal weekly intensity, overall duration, and scope of intervention for older children and adolescents with autism precludes making any definitive recommendations along these lines. However, ample research has demonstrated that targeted interventions for particular skill deficits and challenging behaviours can be effective when each intervention is implemented for several hours per week. There is no logical reason to believe that several such interventions could not be combined at any given time to address a larger variety of issues across a larger portion of an individual’s day. Put simply, there is every reason to believe that the more hours an expert ABA supervisor spends analyzing and programming for particular challenging behaviours and skill deficits, and the more hours ABA interventionists are available to work directly with the client and implement his or her intervention programs, the more challenges can be met during any given week.[33] [emphasis added]
[33] Doreen Granpeesheh et al, ‘Applied behavior analytic interventions for children with autism: A description and review of treatment research’ (2009) 21(3) Annals of Clinical Psychiatry 162-173, 170.
During the hearing, Dr ‘A’ also referred the Tribunal to a clinical report by Dr Susan Hyman et al published in the American Academy of Paediatrics in January 2020, which stated:
Children younger than 12 years receiving more hours per week of ABA were found to be more likely to achieve the individualised goals identified in their programs. In retrospective studies, more intense ABA therapy was associated with achieving optimal developmental outcomes. Given the heterogeneity of the ASD phenotype, the service needs of children youth and adults need to be individualised by using available clinical data.[34] [emphasis added]
[34] Susan L. Hyman et al, ‘Identification, Evaluation, and Management of Children With Autism Spectrum Disorder’ (2020) 145(1) American Academy of Pediatrics 1-64, 22.
Evidence from Associate Professor ‘I’ (paediatrician)
The NDIA commissioned Associate Professor ‘I’ to review the applicant’s situation (based on available reports, an observation of the applicant participating in a home-based ABA therapy session, and interviews with the applicant’s father and school) and provide an opinion on the applicant’s requested supports. Three written reports by Associate Professor ‘I’ were filed with the Tribunal dated 4 June 2020, 27 June 2020 and 11 December 2020; and he also gave oral evidence at the hearing on 11 February 2021.
In his report dated 11 December 2020 and at the Tribunal hearing, Associate Professor ‘I’ provided responses to the following propositions about ABA therapy as a treatment for autism based on his review of relevant research/literature.
·In response to the proposition that ‘ABA is an effective treatment for Autism’, Associate Professor ‘I’ opined:
… ABA is able to modify the observable behaviours that arise from… Autism. The degree to which this is true depends on the child, and the nature of the problem (neurologically) that generates these observable behaviours. I hold the opinion that it is primarily effective during the early childhood years (0-6).[35]
·Regarding the proposition that ‘ABA is effective beyond the early years’, Associate Professor ‘I’ stated:
Whilst ABA may effectively modify observable behaviours for children in the older years, I know of no research findings that indicate ABA is able to effectively remediate the deeper impairments of Autism at this stage of development (e.g. social understanding, desire and reciprocity, general intelligence, language comprehension).[36] [emphasis added]
·Associate Professor ‘I’ concluded in relation to the proposition that ‘ABA is cost-effective’:
I would agree with this conclusion subject to qualifications. The studies examining this question relate to Early Intensive Behavioural Intervention (EIBI), which [the applicant’s] ABA delivered during early childhood. ABA provided after that time (later childhood) must demonstrate ongoing achievement of functional skills that reduce requirements for later supports in later life.
I saw no literature that addresses this question of cost-effective for ABA in the later childhood years.[37] [emphasis added]
[35] Exhibit R3, pages 8-9.
[36] Exhibit R3, page 9.
[37] Exhibit R3, page 9.
Associate Professor ‘I’ further observed that:
The age of greatest efficacy for behaviourist methodologies such as ABA is likely to be during early childhood. This is supported by developmental theory:
The effectiveness of early intervention during the early years is considered to build on the neuroplasticity properties of children during this time. The peak age for neurological responsivity to early intervention is considered to be between 3 and 4 years. From a biological perspective, opportunity for neuroplastic change is a very different for a 9-year-old boy who has received considerable therapy already, as compared to a boy in the early childhood years.
Early intervention is able to ‘close the gap’, where the gap is caused by failed developmental progress. Once that gap has been minimised, however, the opportunity for further accelerated response to early intervention is correspondingly reduced.[38] [emphasis added]
[38] Exhibit R3, page 10.
Associate Professor ‘I’ summarised the applicant’s developmental and functional impairments from available assessments and reports, and opined that the ‘benefit’ of ABA therapy for the applicant is ‘likely to be restricted to outcomes defined in terms of altered behaviour’.[39]
[39] Exhibit R3, page 11.
He further considered that, in view of the applicant’s ‘age and current stage of personal development’, 20 hours of ABA therapy and six hours of program supervision is ‘neither effective nor value for money’ to achieve the applicant’s stated goals.[40] Associate Professor ‘I’ concluded that ‘no more than 1-2 hours per week’ of ABA therapy is appropriate for the applicant ‘if this is the methodology of intervention chosen by [the applicant’s] family’.[41]
[40] Exhibit R3, page 20.
[41] Exhibit R3, page 21.
In his oral evidence to the Tribunal on 11 February 2021, Associate Professor ‘I’ extrapolated on information in his report dated 11 December 2020. He explained that there is a greater opportunity for children aged zero to six years old to respond to behavioural methodology due to a combination of ‘neuroplasticity’ (or malleability) of the ‘early childhood brain’ as well as the opportunity to stop dysfunctional development.[42] Associate Professor ‘I’ compared this situation to the applicant, who is nine years old. He explained that the applicant is in his latency years (children aged from seven years old to puberty) and set out two fundamental developmental observations about the latency years: first, that what the applicant has ‘already learned’ is now being consolidated ‘in preparation for puberty’; and second, that children in the latency years ‘collect their experiences of life and start assembling their own understanding of themselves’.[43]
[42] Transcript oral evidence of Associate Professor ‘I’, 11 February 2021, pages 114-115.
[43] Transcript oral evidence of Associate Professor ‘I’, 11 February 2021, page 115.
Associate Professor ‘I’ explained that, after early childhood years (zero to six years old), the opportunity to ‘close the gap’ for a child with learning disabilities progresses more slowly due to reduced neuroplasticity and other children ‘learning faster’.[44] In addition, the latency years are an important time for a child in ‘constructing their sense of identity’, that is, questioning who they are, who are their friends, where do they fit into the world, do people like them?[45] He opined that a child in their latency years needs to be ‘at the centre’ of their therapy.[46] Associate Professor ‘I’ stated a preference for an individualised approach to therapy targeting identified skills deficits and:
a collaborative partnership between home and school, based on an analytical approach to behaviour – which is, what’s going on for the child, are they doing it, how do we deal with it –… so the child… has… a seamless experience between home and school.[47]
[44] Transcript oral evidence of Associate Professor ‘I’, 11 February 2021, page 116.
[45] Transcript oral evidence of Associate Professor ‘I’, 11 February 2021, page 116.
[46] Transcript oral evidence of Associate Professor ‘I’, 11 February 2021, page 138.
[47] Transcript oral evidence of Associate Professor ‘I’, 11 February 2021, page 132.
FINDINGS OF FACT

Based on the evidence, I make the following findings of fact:
·The applicant is aged nine and a half years old. He was diagnosed with autism spectrum disorder at the age of two and a half years old.
·The applicant has participated in intensive ABA therapy from the age of three years old to the present. This involved 40 hours a week ABA therapy until he commenced school and, from starting school to the present, 20 hours a week ABA therapy during school term and up to 40 hours a week in school holidays.
·The applicant’s results from the ABLLS-R administered up to June 2019 show he has made significant gains in mastering ‘tasks’ or ‘skills’ that are the focus of ABA therapy. The results in June 2019, almost 20 months prior to the hearing, are the most current before the Tribunal.
·A speech pathology assessment by Ms ‘G’ in May 2020 is the most recent assessment of the applicant before the Tribunal. After this assessment, the applicant commenced speech pathology sessions with Ms ‘G’. He is currently participating in two one-hour sessions per week that focus on his reading and comprehension skills, and socialisation skills.
·While the applicant’s ABA program supervisor/s have stated he requires 20 hours ABA therapy a week, there is no evidence before the Tribunal about either an ABA program specifically designed for the applicant to meet his identified goals, or details about how the applicant would use 20 hours of ABA therapy a week.
·Evidence about the applicant’s current developmental and functional impairment is absent and inconsistent. For example, an ABA program designed by Ms ‘F’ in August 2020 identified deficit skills (for example, washing hands and toileting) that Ms ‘E’ assessed the applicant had ‘mastered’ in June 2019, a period of 14 months earlier. This lack of current information about the applicant appears to be inconsistent with ABA therapy being ‘data driven’.
·There is no evidence of any engagement between an ABA program supervisor and the applicant’s school since Ms ‘F’ visited his school in August 2020. There is no evidence before the Tribunal about how the applicant’s ABA therapy program interacts with or supports his learning at school.
·I place limited weight on the evidence of Dr ‘H’ and Ms ‘G’ as they provide minimal explanation about why the applicant, in his particular circumstances, requires 20 hours ABA therapy a week.
·The evidence of Associate Professor ‘I’ was credible, detailed and authentic. In summary, his evidence was that:
oABA therapy is able to modify observable behaviours arising from autism;
oABA therapy is more effective in early childhood (children aged zero to six years old) due to greater neuroplasticity;
othere is no research that indicates ABA therapy can remediate deeper impairments of autism for children in the latent stage of development (children aged seven years old to puberty);
otherapy should be individualised, based on an analytical approach to behaviour and collaborative between home and school.
I also make the following observations about the literature and research before the Tribunal.
I accept the statement in the article by Dr Granpeesheh et al (see paragraph 55) that the available research ‘has demonstrated that targeted interventions for particular skill deficits and challenging behaviors can be effective when each intervention is implemented for several hours per week’. However, there is no research to support the authors’ extrapolation that ‘more hours’ of ABA supervision and intervention would assist an older child to meet ‘more challenges’.
I also accept the statement by Dr Hyman et al (see paragraph 56) that retrospective studies showed ‘more intense ABA therapy [for children under 12 years] was associated with achieving optimal developmental outcomes.’
However, neither of these articles describe what comprises ‘more hours’ or ‘more intense ABA therapy’. I find there is no evidence in the available research that provides information about:
·an optimal number of hours for ABA therapy for older children;
·the context of ‘more hours’ or ‘more intense ABA therapy’ within an older child’s environment of school, extra-curriculum activities such as music and sport, and/or other therapy supports/hours; and
·the benefits of ‘more hours’ of ABA therapy for an older child where they have already participated in intense ABA therapy since the age of three years old.
CONSIDERATION
The issue for determination by the Tribunal is whether the applicant’s request for ABA therapy for 20 hours per week for 48 weeks and program supervision for six hours per month for 12 months (hereafter referred to as the applicant’s requested supports) satisfies the criteria in subsection 34(1) of the Act.
The NDIA accepts that the applicant’s requested supports satisfy the criteria in paragraphs 34(1)(a), 34(1)(b), 34(1)(e) and 34(1)(f) of the Act. Consequently, I do not address these requirements in my consideration of whether subsection 34(1) of the Act is met. Rather, I only consider whether the applicant’s requested supports satisfy the criteria in paragraphs 34(1)(c) and 34(1)(d) of the Act.
At the outset, I want to emphasise that this matter is not about whether ABA therapy is an effective early behavioural intervention for children diagnosed with autism spectrum disorder. That issue has already been comprehensively considered in previous Tribunal decisions, such as FRCT and National Disability Insurance Agency [2019] AATA 1478 and WKZQ and National Disability Insurance Agency [2019] AATA 1480. Rather, this matter must be distinguished on the facts when considering whether the applicant’s requested supports meet the requirements in the Act.
In my consideration below, I have regard to Mortimer J’s decision in McGarrigle v National Disability Insurance Agency, which provides the following guidance to assess ‘reasonable and necessary supports’ in the Act:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”…
In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described… then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant… That determination can only be made on the basis of probative evidence.
Once a decision is made that the support… is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.
The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded. The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded…[48]
Paragraph 34(1)(c) of the Act – does the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support?
[48] [2017] FCA 308 at [91], [93-95].
Rule 3.1 of the Support Rules set out the matters to be considered in deciding whether the applicant’s requested supports represent 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 matters relevant to this application are:
…
(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)…
Part 10.5 of the Planning Operational Guideline effectively repeats paragraph 3(3)(b) of the Act and notes that ‘funding supports which do not represent value for money have the potential to undermine the financial sustainability of the NDIS’.
I now consider whether the applicant’s requested supports meet the requirement in paragraph 34(1)(c) of the Act.
1. ABA therapy for 20 hours per week for 48 weeks
In written submissions filed on 26 September 2020, Dr ‘A’ sets out that the applicant has made gains but ‘significant deficits remain which require continuation of intensive 1:1 ABA therapy to achieve the… goals set out in his NDIS plan’.[49]
[49] Written submission by Mr ‘A’ dated 26 September 2020, page 3.
As set out in paragraph 64, there is no evidence before the Tribunal about the applicant’s current developmental and functional capacity, and no recent assessment results from an ABLLS-R that identify his ‘significant deficits’. Further, there is no evidence of an ABA therapy program designed for the applicant to meet the goals identified in his NDIS plan, no information about how the applicant would use 20 hours of ABA therapy a week (such as hours used for a junior therapist and hours for a senior therapist), and no details about how the applicant’s ABA therapy currently either interacts with or supports his learning at school.
While I have had regard to available research and literature, I find this has limited relevance. I accept the evidence of Associate Professor ‘I’ that there are no research findings that indicates ABA therapy can remediate deeper impairments of autism for children in the latent stage of development (children aged seven years old to puberty). I also find that the articles summarised in paragraphs 55–56 have limited relevance to this matter because there is no information about what comprises ‘more hours’ or ‘more intense ABA therapy’. This is particularly relevant in the context of the applicant’s current schedule where he is attending a mainstream school for approximately 30 hours a week, undertaking extra-curriculum activities (music and sport), and participating in two hours of speech pathology per week. I note there is no information before the Tribunal about how the applicant’s ABA therapy intersects with or supports his learning in school.
Relying on research papers analysing costs associated with autism, Dr ‘A’ provided oral submissions to the Tribunal about the benefits of early intervention. While I accept the basis of this submission – that providing support to the applicant now should lead to him requiring less support later – it does not address the paucity of evidence to support the applicant’s request for 20 hours of ABA therapy per week. As I state at the outset of my consideration in paragraph 71, this matter is not about the effectiveness of ABA therapy as an early intervention for children diagnosed with autism spectrum disorder. Rather, it is about considering the applicant’s requested supports within the relevant factual context.
For these reasons, I find there is insufficient evidence that ABA therapy for 20 hours a week for 48 weeks will substantially improve the life stage outcomes for, and be of long-term benefit to, the applicant, or will reduce the long-term funding of supports for the applicant. In making this decision, I note that the NDIA’s decision on 28 August 2020 provides funding of $20,147.40 for capacity building daily activities (for the 24-month period from 12 August 2019 to 11 August 2021) that can be used by the applicant for ‘an allied health professional or therapist’ to assess and provide support for the applicant to meet his goals of communication, developing living skills, improving his daily and social routines, understanding his sensory needs, and any assistance technology assessment.[50]
[50] Exhibit R4.
2. Program supervision for six hours per month for 12 months
The applicant requested funding of a program supervisor for six hours a month for 12 months at a cost of $12,240. Ms ‘E’, in her letter dated February 2020, set out the role of the ABA program supervisor is to analyse the applicant’s data, provide his parents with training, upskill therapists, update his learning programs, and work with his school to provide consistency with learning and behaviour management.
In view of my findings that there is no evidence of a current ABA therapy program for the applicant and there has been no engagement between an ABA program supervisor and the applicant’s school since August 2020, I cannot be satisfied that funding an ABA program supervisor for six hours a month for 12 months is consistent with the requirement of paragraph 34(1)(c) of the NDIS Act. In particular, there is no evidence that program supervision represents value for money and the cost is reasonable relative to the benefits achieved.
I am satisfied there is insufficient evidence before the Tribunal to support a finding that the applicant’s requested supports meet the requirement of paragraph 34(1)(c) of the Act.
Paragraph 34(1)(d) of the Act – will the support be, or likely to be, effective and beneficial having regard to current good practice?
Rules 3.2 and 3.3 of the Support Rules state:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
I now consider whether the applicant’s requested supports meet the requirement in paragraph 34(1)(d) of the Act.
1. ABA therapy for 20 hours per week for 48 weeks
As I have set out in the findings of fact at paragraph 64, I accept the expert evidence of Associate Professor ‘I’ that ABA therapy is able to modify observable behaviours arising from autism and is more effective in early childhood (children aged zero to six years old) due to greater neuroplasticity. I also accept his expert evidence that there is no research that indicates ABA therapy can remediate deeper impairments of autism for children in the latent stage of development (children aged seven years old to puberty), and that therapy should be individualised, based on an analytical approach to behaviour and collaborative between home and school.
I have also considered the published and referred literature before the Tribunal filed by the applicant. For the reasons set out in paragraphs 65–68, I find the article by Granpeesheh et al sets out that research shows ‘targeted interventions’ for several hours per week may be effective where older children with autism have ‘particular skill deficits and challenging behaviors’. However, there is no literature or consensus of expert opinion that 20 hours of ABA therapy a week is effective and beneficial for a child aged nine and a half years who is attending school, undertaking extra-curriculum activities, participating in speech therapy for two hours a week, and has a history of more than six years intensive ABA therapy.
2. Program supervision for six hours per month for 12 months
In view of my findings that there is no evidence of a current ABA therapy program for the applicant and there has been no engagement between an ABA program supervisor and the applicant’s school since August 2020, I cannot be satisfied that funding an ABA program supervisor for six hours a month for 12 months is consistent with the requirement of paragraph 34(1)(d) of the NDIS Act. I find no evidence that program supervision is, or is likely to be, effective and beneficial having regard to current good practice.
I am satisfied that the applicant’s requested supports do not meet the requirement in paragraph 34(1)(d) of the Act.
CONCLUSION
For the reasons set out above, I am satisfied that the applicant’s request for ABA therapy for 20 hours per week for 48 weeks and program supervision for six hours per month for 12 months do not satisfy subsection 34(1) of the Act.
DECISION
The decision under review, made by the National Disability Insurance Agency on 28 August 2020, is affirmed.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[sgd].........................................
Associate
Dated: 16 March 2021

Dates of hearing: 10, 11 and 12 February 2021

Advocate for the Applicant: Dr 'A', Applicant's father

Counsel for the Respondent: Mr T Liu, 7 Wentworth Selbourne

Solicitors for the Respondent: Mr A Ray, Clayton Utz

[2021] AATA 511

16 March 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Dates of hearing:	10, 11 and 12 February 2021
Advocate for the Applicant:	Dr 'A', Applicant's father
Counsel for the Respondent:	Mr T Liu, 7 Wentworth Selbourne
Solicitors for the Respondent:	Mr A Ray, Clayton Utz