CYHY and National Disability Insurance Agency

CYHY and National Disability Insurance Agency [2021] AATA 4751 (20 December 2021)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2019/6569
Re:CYHY
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:20 December 2021
Place:Melbourne

The Tribunal sets aside the Decision Under Review and remits this matter to the Respondent for reconsideration with a Direction that a delegate of the CEO of the Respondent approves a new statement of participant supports for CYHY, which includes:
(a) Replication of all existing supports as set out in CYHY’s current statement of participant supports, on a pro rata basis; and
(b) An additional support comprising the provision and funding for an assistance dog to CYHY by Smart Pups for a donation of $20,000 (upon condition that if the match(es) between the dog(s) and CYHY is not successful, the $20,000 donation will be refunded by Smart Pups to the Respondent).

...........[SGD]..................
Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of decision approving statement of participant supports – child participant has autism spectrum disorder, generalised anxiety disorder, ADHD and social (pragmatic) communication disorder – participant requests provision of and funding for a trained and accredited assistance dog – whether support is reasonable and necessary – whether criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) are met –Tribunal satisfied requested support is reasonable and necessary - reviewable decision set aside and remitted to Respondent with directions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Secondary Materials
NDIS Operational Guidelines - Does the support meet the reasonable and necessary criteria? | NDIS
Bódizs, Róbert et al, ‘Sleep in the Dog: Comparative, Behavioural and Translational Relevance’ (2020) 33 Current Opinion in Behavioural Sciences 2
Bogaerts, Evelien et al, ‘Rejections in a Non-Purpose Bred Assistance Dog Population: Reasons, Consequences and Methods for Screening’ (2019) 14(6) PLoS One 1
Bray, Emily E. et al., ‘“Predictive Models of Assistance Dog Training Outcomes Using the Canine Behaviour Assessment and Research Questionnaire and the Standardised Temperament Evaluation’ (2019) 6 Frontiers in Veterinary Science
Brown, S. X., Service Dogs for Children with Autism: A Parent’s Perspective: a Dissertation Submitted in Partial Fulfillment of Requirements for the Degree of Doctor of Psychology in the Graduate School of Chestnut Hill College (Chestnut Hill College, 2016)
O’Neill, D.G., D.B. Church, P.D. McGreevy, P.C. Thomson and D.C. Brodbelt ‘Longevity and mortality of owned dogs in England’ (2013) 198 The Veterinary Journal 638
Serpell, James A. and Deborah L. Duffy, ‘Aspects of Juvenile and Adolescent Environment Predict Aggression and Fear in 12-month-old Guide Dogs’ (June 2016) Frontiers in Veterinary Science
Silva, K., M. Lima, A. Santos-Magalhaes, C. Fafiaes, and L. de Sousa, ‘Can Dogs Assist Children with Severe Autism Spectrum Disorder in Complying with Challenging Demands? An Exploratory Experiment with a Live and a Robotic Dog’ (2018) 24(3) Journal of Alternative and Complementary Medicine 238
Yamamoto, M., and L.A. Hart, ‘Professional- and Self-Trained Service Dogs: Benefits and Challenges for Partners With Disabilities’ (2019) 6 Frontiers in Veterinary Science
REASONS FOR DECISION
Member K. Parker
20 December 2021

The Applicant, CYHY, is a child participant of the National Disability Insurance Scheme (NDIS).[1] This application is about CYHY’s request for the provision of and funding for a trained and accredited assistance dog to assist him to manage his medical conditions.
[1] The Applicant is a child and so his name will be the pseudonym, CYHY, and other identifying information has been omitted from these Reasons for Decision, where indicated, to maintain the Applicant’s confidentiality. Confidentiality orders have been made in this application pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth).
The Respondent, the National Disability Insurance Agency (NDIA), does not consider that the provision of an assistance dog to CYHY is a “reasonable and necessary” support. The NDIA is not satisfied that this support meets the criteria under s 34 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDISAct) in the individual circumstances of CYHY’s case.
Both parties were represented by counsel at the hearing. Mr John Gurr represented CYHY, on a pro bono basis, and Ms Julia Lucas represented the NDIA. The Tribunal is grateful for the assistance they provided to the parties and the Tribunal in this application.
For the reasons set out below, this Tribunal is satisfied that the provision of an assistance dog to CYHY meets the “reasonable and necessary” criteria under s 34(1) of the NDIS Act and should be included in CYHY’s statement of participant supports in his NDIS plan.
BACKGROUND
CYHY was born in 2013 and is 8 years old. He attends a mainstream primary school.
CYHY has been granted access to the NDIS and became a participant on 25 June 2018.[2]
[2] Refer T-Document T7.
CYHY lives with his mother. They live in an apartment in a large regional centre near Melbourne, Victoria. No other people or pets live with them.
Dr Janie Worth, CYHY’s treating consultant paediatrician, has diagnosed CYHY with the following medical conditions:
(a)autism spectrum disorder, Level 2 (ASD);
(b)Social (Pragmatic) Communication Disorder;
(c)Generalised Anxiety Disorder; and
(d)Attention Deficit Hyperactivity Disorder Combined (ADHD).[3]
[3] Refer T-Document T6 (Dr Worth’s medical report dated 6 June 2018).
CYHY’s treating medical and allied health professionals also include:
(a)Ms Louise Philpott, speech therapist;
(b)Mr Matt Nolan, psychologist; and
(c)Ms Sophie Schultz, occupational therapist.
CYHY takes the following medications: Catapres, Risperidone and Dexamphetamine.
Anxiety is reported to be a prominent feature in CYHY’s life, and this anxiety impairs his ability to spend time at different places in the community or to sleep alone in his bed (without his mother being present). One exception to this is the zoo, which CYHY willingly visits frequently with his mother, Covid-related restrictions permitting.
CYHY appears to be doing reasonably well at school after he changed school a year or so ago. He has attended his classes, reportedly with minimal difficulty in regulating his emotions. CYHY’s mother explained to the Tribunal that CYHY “does okay” once he is at school, but on the way to, or coming home from school, he experiences “meltdowns”.
There have also been difficulties with CYHY’s emotional regulation when he engages in allied health therapy, with reports that most of the time allocated for those appointments is often spent calming CYHY down, to allow for the therapy to be effectively implemented. An exception to this is equine therapy, which he is very happy to attend and has so done weekly or fortnightly depending the level of Covid-related restrictions.
First NDIS Plan – July 2018
By letter dated 23 July 2018, a delegate of the CEO of the NDIA approved a statement of participant supports (First SOPS), resulting in the commencement on 20 July 2018 of an NDIS plan for CYHY (First NDIS Plan).[4] The First SOPS has a review date of 22 July 2019.[5]
[4] Refer T-Document T23.
[5] Refer T-Document T23.
Second NDIS Plan – April 2019
By letter dated 24 April 2019, a delegate of the CEO of the NDIA approved a further statement of participant supports (Second SOPS) resulting in the commencement on 18 April 2018 of a further NDIS plan for CHYH (Second NDIS Plan).[6] The review date of the Second SOPS is 17 April 2019.
[6] Refer T-Document T24.
CYHY requested the provision of funding for an assistance dog be included in his Second SOPS. On 16 May 2019, CYHY’s mother followed up with the NDIA by telephone to enquire why CYHY’s request for an assistance animal had been rejected.[7]
[7] Refer T-Document T15.
On 1 August 2019, a Senior Technical Advisor of the NDIA (not a decision-maker) issued a detailed written advice about whether the requested assistance dog, costing $20,000, was a “reasonable and necessary” support under s 34(1) of the NDIS Act.[8] The advice given by the Senior Technical Advisor was that it was not; and that CYHY should be encouraged to use his capacity-building budget to engage a suitably qualified professional to prepare a behavioural support plan (BSP) for CYHY.
[8] Refer T-Document T16.
Internal review decision – September 2020
On 18 August 2019, CYHY’s mother lodged a written complaint with the NDIA about her repeated attempts to seek an answer from the NDIA about CYHY’s request for an assistance animal.[9] The NDIA treated this letter as a request for an internal review under s 100 of the NDIS Act.[10]
[9] Refer T-Document T17.
[10] Refer Respondent’s Statement of Facts, Issues and Contentions (SFIC) at paragraph [15].
On 12 September 2019, a different delegate of the CEO of the NDIA made an internal review decision under s 100 affirming the decision to approve the Second SOPS (Decision Under Review).[11] The reviewer considered that the requested “assistance animal” support did not meet the “reasonable and necessary” criteria under the NDIS Act.[12]
[11] Refer T-Document T2.
[12] Refer T-Document T2.
REQUESTED SUPPORT – ASSISTANCE DOG TO BE PROVIDED BY SMART PUPS
CYHY’s mother requested that CYHY be provided with an assistance dog from Smart Pups Assistance Dogs for Special Needs Children Inc. (Smart Pups) in exchange for a “donation” of $20,000 to be funded under the NDIS.
The organisation – Smart Pups
Smart Pups is an incorporated association and service provider based in Queensland. Smart Pups breeds, trains and provides assistance dogs to persons, including those with ASD. CYHY’s mother made an application to Smart Pups to find out whether CYHY was eligible to receive an assistance dog from this organisation.
On 4 April 2019, Smart Pups wrote to CYHY’s mother to inform her that CYHY had been assessed as eligible to receive an “exclusively trained autism assistance service dog” from their organisation.[13] This letter had attached an information sheet providing an overview of the Smart Pups program (SP Information Sheet), client obligations, and what could be expected from the Smart Pups team. This letter also included a two-page document entitled “Terms and Conditions of Placement” detailing the responsibilities and commitment to the placement of a Smart Pup in a home (SP T&Cs).[14]
[13] Refer T-Document T11.
[14] Refer T-Document T11A.
The SP Information Sheet and SP T&Cs were signed by Ms Patricia McAlister, who at the date of those documents, was the CEO of Smart Pups. Ms Janelle Denny is the current CEO of Smart Pups.
On the SP Information Sheet, under the heading “What does it cost?”, Smart Pups states that the cost to raise and train an Autism Assist Smart Pup with full Public Access Certification was $25,000, and that a donation of $20,000 was requested to be paid by families, as a contribution to the cost of their child’s assistance dog.[15] Smart Pups states that the donation can be made by fundraising and made progressively, or may be donated in full from the families’ own funds. Smart Pups specifies that it is a not-for-profit incorporated association and that the funds donated are “tax deductible and non-refundable”.
[15] Refer T-Document 11B, p.47.
NDIS Assistive Technology Assessment Template
CYHY’s former treating paediatric occupational therapist, Ms Claire Koniw (née Desborough), carried out a general assistive technology assessment in respect of CYHY. Ms Koniw completed an NDIS assistive technology assessment template on 10 April 2019 (AT Template).[16]
[16] Refer T-Document T13.
The assistive technology (AT) recommended by Ms Koniw was described as follows:
“Assistance dog provided by Smart Pups inclusive of all training – refer to supplier quote and information letter for information”.[17]
[17] Refer T-Document T13, p.59.
Ms Koniw states in the AT Template that an assistance dog is the most appropriate AT device for CYHY to facilitate the achievement of his goals. Ms Koniw states that a dog would assist CYHY:
“in developing his sensory regulation, emotional regulation, social awareness and safety skills through “in the moment” practice and development”.
Ms Koniw claims in the AT Template that “[n]o other tool, including parents or therapists”, can provide such immediate assistance to CYHY.
On 16 August 2019, a representative of the NDIA contacted CYHY’s mother regarding her request for an assistance dog.[18] An NDIA interaction note records that this representative informed CYHY’s mother that the NDIA had declined the support because it was not reasonable and necessary, on the basis that there was no clear evidence that the assistance animal would provide any therapeutic benefits beyond that which an ordinary pet dog could.
[18] Refer T-Document T22, p.130.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3. Section 4 establishes general principles guiding actions to be taken under the NDIS Act. Persons with disabilities may apply to become participants in the scheme, subject to certain eligibility requirements.
A participant’s plan is prepared in accordance with the NDIS Act and regulations made under s 32A of the NDIS Act. The supports described in the SOPS must be approved in accordance with the NDIS Act and any regulations made under the NDIS Act, such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports for Participants Rules).
Section 31 of the NDIS Act establishes a set of general principles that applies to the “preparation, review and replacement” of an NDIS participant’s plan, as reproduced below. These principles have been considered by the Tribunal.
31       Principles relating to plans
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c)   where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)   support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)   maximise the choice and independence of the participant; and
(j)   facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 31 of the NDIS Act sets out several principles that apply in the development of an NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs what funding the participant is entitled to receive under the scheme. Each plan must have in it an approved SOPS and, in fact, a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a) have regard to the participant’s statement of goals and aspirations;
(b) have regard to relevant assessments conducted in relation to the participant;
(c) be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d) apply any methods and have regard to any criteria prescribed by the NDIS rules in relation to the manner in which the reasonable and necessary supports will be funded;
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
Section 34(1) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(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 community to provide;
(f)the support is most appropriately funded or provided through the [NDIS], 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.
(2)The [NDIS] rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 33(5)(d) of the NDIS Act requires that the Supports for Participant Rules be applied in the making of a decision to approve a SOPS.
The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43] as follows:
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) and (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The [Supports for Participant Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

The Tribunal has considered the Operational Guidelines published by the Respondent on its website; specifically, those relating to the assessment of whether a requested support meets the “reasonable and necessary” criteria under s 34(1) of the NDIS Act.
ISSUE
The issue to be determined in this matter is whether the provision of an assistance dog to CYHY by Smart Pups, requiring a donation of $20,000, should be included in CYHY’s SOPS and funded under the NDIS. This will encompass a consideration of whether each of the “reasonable and necessary” criteria under s 34(1) of the NDIS Act are met in respect of this requested support.
CONTENTIONS
Mr Gurr aptly summarised the nub of both the NDIA’s and CYHY’s primary contentions in paragraphs [3] to [9] of CYHY’s Closing Submissions, as follows (footnotes and emphasis omitted):
3. The NDIA accepts that there will be cases where an assistance animal will be a reasonable and necessary support. The essence of the NDIA’s rejection of an assistance dog in this case, however, appears to be firstly that there is insufficient evidence that the provision of an assistance dog would be a reasonable and necessary support for this applicant; and, secondly, that there is no benefit which an assistance dog could provide to the applicant which could not otherwise be provided by a companion animal.
4.The NDIA’s position is contrary to the weight of the evidence.
5.There is a broad range of evidence as to the profound benefits that assistance dogs can provide in the treatment of autism and anxiety. Whilst it may readily be accepted that assistance dogs will not necessarily be beneficial in every instance, the evidence in the present proceeding points overwhelmingly to the conclusion that an assistance dog will provide substantial positive benefits to CYHY in reducing his anxiety and minimising his emotional dysregulation. This will in turn enable CYHY to participate more fully in society and otherwise pursue his stated goals, objectives and aspirations.
6.The NDIA seeks to downplay the benefits which an assistance dog might provide by suggesting that it will do little more than provide a “calming influence” over CYHY. Respectfully, this submission misses the point. CYHY suffers from profound anxiety. His anxiety is such that his ability to leave the house and participate in the broader community is severely constrained. CYHY’s anxiety – and the meltdowns which follow – have the regular consequence that CYHY is often so emotionally dysregulated when he attends his regular therapy sessions that half the time is spent trying to calm CYHY down. Much of the benefit of the sessions is lost.
7.The weight of the evidence before the Tribunal, both lay and expert, is that assistance dogs have the real potential to provide profound assistance to children with complex needs in overcoming their anxiety, regulating their emotions and participating in society in a manner in which those without such disability take for granted.
8. The weight of evidence also speaks overwhelmingly of CYHY’s affinity for animals, including dogs. Animals are CYHY’s “happy place”. He is at his calmest and least anxious when with animals.
9. An assistance dog – much more so than a companion dog – would provide CYHY with the greatest opportunity, and in the broadest range of environments, to be in his “happy place”; and, when he is there, to maximise the benefits from his other ongoing treatments.
EXPERT EVIDENCE & RESEARCH LITERATURE
The Applicant called the following expert witnesses to give evidence at the hearing:
(a)the Applicant’s mother;
(b)Dr Worth;
(c)Mr Nolan; and
(d)Ms Koniw;
(e)Dr Susan Hazel, Senior Lecturer, Animal Behaviour, Welfare & Ethics, School of Animal and Veterinary Sciences, University of Adelaide (appointed by the NDIA but ultimately called as a witness by CYHY).
The NDIA called the following expert witnesses to give evidence at the hearing:
(a)Ms Alicja Ploszaj, independent occupational therapist; and
(b)Dr Kersti Seksel, independent veterinary behavioural specialist (called by the NDIA).
The Tribunal considered that further information about the operations of the proposed service provider was required to assess the “value for money” criterion. Arrangements were made for the further following witnesses to give evidence at the hearing:
(a)Ms McAlister and Ms Denny, former CEO and current CEO of Smart Pups, who gave concurrent evidence; and
(b)Ms Katie Hunter, Co-founder and CEO, Dogs for Kids with Disabilities Limited (a Victoria-based provider of assistance dogs).
Dr Worth
Dr Worth prepared a report dated 8 November 2019 (Dr Worth’s Report). In this report, Dr Worth describes CYHY as having “high functioning Autism/Asperger’s Syndrome”. Dr Worth reports that CYHY has a special interest in animals and loves attending equine therapy. Dr Worth states that she “fully support[s] a companion dog” for CYHY and that she thinks he would look after it very well. Dr Worth states that it would have “tremendous benefits for him”, especially that “it is likely to result in less meltdowns and better self-regulation as his focus is directed towards his precious pet”.
At the hearing, Dr Worth told the Tribunal that CYHY had been her patient since about August 2016 and she saw him every three to six months, depending on his needs.
When asked, Dr Worth confirmed that she no particular expertise in the placement of and use of assistance animals in therapy.[19] Dr Worth told the Tribunal that her support for the proposition that CYHY should have a companion animal was based on her general knowledge that companion animals could be very helpful to children on the autism spectrum. She said she had some friends and acquaintances who used companion dogs.[20]
[19] Refer Transcript p.46.
[20] Refer Transcript p.47.
Dr Worth gave evidence that she had last prescribed CYHY with dexamphetamine tablets for ADHD on 20 October 2020. Dr Worth said this medication helped with his “impulsivity, concentration, inattention, and hyperactivity”.[21] When asked whether this medication had improved CYHY’s behaviour, Dr Worth said she had been told it had (by CYHY’s mother),[22] or, otherwise, she would have stopped prescribing it.[23] Dr Worth said she first prescribed Risperidone to CYHY in March 2019.[24]
[21] Refer Transcript p.48.
[22] Refer Transcript p.50.
[23] Refer Transcript pp.47 and 48.
[24] Refer Transcript p.50.
Dr Worth gave the following evidence about CYHY’s interest in animals:[25]
You may or may not know and I'm sure you do, that autistic children have special interests and those special interests are a self-soothing, that’s the way they soothe, that’s the way they calm and control their environment. They go to places that give them – that they can depend on, that can give them security and comfort and they get their comfort and their security and their calmness from their special interests. And CYHY’s happens to be animals. In an extraordinary way, I'm sure you have read the letter, but this is a kid who was actually identifying the genders of my plastic animal toys and he wants to go into animal husbandry. It’s not just a fluffy cuddly that kind of interest, it’s actually a profound interest, like some kids have in dinosaurs or some kids might have in space. He’s got a profound intelligent interest in animals.
…
…when we have consultations and when we begin to discuss animals his whole – his face lights up and he just becomes very interested and very focused and just loves to talk about it.
[25] Refer Transcript pp.50 to 52.
Dr Worth said she had not been involved in the development of a BSP for CYHY and that this was something that therapists would do with the school.[26] Dr Worth said she had recommended that CYHY access equine therapy and that it was her impression that his participation in this therapy had been beneficial.[27]
[26] Refer Transcript p.48.
[27] Refer Transcript p.53.
Mr Nolan
Mr Nolan prepared a report dated 19 December 2019 (Mr Nolan’s Report). In Mr Nolan’s Report, he states that he has provided therapeutic support for CYHY, and CYHY’s mother, since early 2018.
Mr Nolan describes CYHY as “very caring and sweet toward” his mother and that he “has a lot of care and empathy for animals”. In Mr Nolan’s Report, he states that CYHY presents as “highly anxious with difficulties in relation to his sleep, social interactions, toileting and self-esteem”. Mr Nolan reports that CYHY “has difficulty regulating his emotions and is easily overwhelmed”. Mr Nolan reports that when CYHY’s anxiety is heightened “he is prone to meltdowns and there is an associated regression in his behaviours i.e. defecating, urinating, difficulty settling at night, agitation, oppositional behaviour as well as physical aggression” towards CYHY’s mother.
In Mr Nolan’s Report, he opines that:
(a)it is imperative for CYHY’s ongoing healthy development that he have access to a range of services and supports that can meet his complex needs;
(b)providing CYHY with a therapy dog would be a significant support for him and that it would assist CYHY to gain control over his anxiety;
(c)it is expected that there would be a reduction in CYHY’s meltdowns and an associated increase in his capacity to:
(i)manage his strong emotions;
(ii)engage more fully in social interactions;
(iii)engage in learning within and outside school; and
(iv)communicate his needs.
At the hearing, Mr Nolan said he sees CYHY with varying frequency, ranging from fortnightly to once every couple of months. Mr Nolan described CYHY’s difficulties relating to his high level of anxiety or propensity to be highly anxious, and his capacity to regulate emotionally. Mr Nolan said CYHY experienced meltdowns and could become aggressive. Mr Nolan said he can have difficulties with toileting, settling at night and sleeping.[28]
[28] Refer Transcript p.56.
Mr Nolan explained that he formed an opinion that CYHY had a lot of care and empathy for animals, based on conversations with CYHY and his mother; although he said he had not witnessed CYHY in the presence of animals. Mr Nolan said that based on what CYHY’s mother had told him, CYHY’s cat seemed to have had a settling and soothing effect on CYHY.[29] Mr Nolan said that he thought the death of this cat has been devastating for CYHY and he had been “obviously very sad” about it.[30]
[29] Ibid.
[30] Refer Transcript p.57.
Mr Nolan explained that his opinions set out in subparagraphs [52(b)] and [52(c)] above, were based on some experience he had had with therapists who used therapy dogs. Mr Nolan confirmed that he had discussed the benefits of assistance animals with others who worked in the profession, and that he was considering getting a dog himself to assist him with his therapy. Mr Nolan confirmed that it was his view that the use of an assistance animal would help to facilitate CYHY’s participation in psychology, and more broadly.[31]
[31] Refer Transcript p.58.
Mr Nolan gave evidence that he sees CYHY and his mother in the sessions, and those sessions provide “a space to give CYHY an opportunity to help make sense of the things that are going on for him and … what might be bothering him or what might be going well”. Mr Nolan said the sessions also provided CYHY’s mother with a place to reflect, and they worked on the relationship or dynamic between CYHY and his mother. Mr Nolan said they had tried a number of strategies to improve CYHY’s self-regulation. He reported that some of them were effective, and others not. When asked to identify the strategies that had been effective, Mr Nolan struggled to provide an answer, indicating he would need to go back to his clinical notes.[32]
[32] Refer Transcript p.60.
When Mr Nolan was asked whether he had been involved in putting in place a BSP for CYHY, he said he had not; and that “it’s been more through just sort of discussions with CYHY’s mother and myself”. Mr Nolan confirmed he had engaged in discussions with CYHY’s school, but not about a “formal plan”.[33]
[33] Ibid.
When asked whether putting in place a BSP was something a psychologist would normally do, or be regularly involved with, Mr Nolan answered in the negative and remarked that his involvement with schools was on a case-by-case basis. Mr Nolan said he was “very familiar” with what a BSP was. He gave evidence that a psychologist could prepare them and so could an occupational therapist. He said it depended on who had done the training (in positive behaviour support). Mr Nolan said he had not undertaken this type of training for quite some time.
The Tribunal enquired of Mr Nolan whether he had decided to take a psychotherapy approach with CYHY, rather than developing a BSP (or to recommend that someone else develop one for him). Mr Nolan said that based on his experience, BSPs were “all well and good” but he had not had experience working with those plans, which he said could “be quite detailed and quite sort of lengthy”. He said it was something that he chose not to do. Mr Nolan said that, based on his experience, he regarded the psychotherapeutic work with a parent and child as being more valuable.[34] In stating whether his view applied to CYHY, Mr Nolan said:[35]
Yes, yes. I think, you know, because you’ve got sort of CYHY being a single mum and - and so - so I think it’s really important to address - to be looking at their - their relationship, CYHY’s attachment. Bonding to CYHY’s mother I think is important in all this and I think also, you know, we - and also because of CYHY’s relationship with his dad as well, which know has been, you know, limited and difficult over time and so I - I guess, you know, a behavioural plan wouldn’t necessarily address that. You know, when CYHY comes in it - it gives us an opportunity to talk about those sort of issues, difficulties that CYHY may be experiencing in relation to, in this case…
[34] Refer Transcript p.61.
[35] Refer Transcript p.-62.
Mr Nolan said that CYHY had an “on and off” relationship with his father and recently, there had been “a little bit more contact”. Mr Nolan that CYHY’s previous lack of involvement by his father had left CYHY “feeling not good about himself”. Mr Nolan explained:
…Feeling like maybe there’s something wrong with him or he gets really down on himself really quickly. His self-esteem is quite low. His self-worth is quite low. He desperately, I think, you know wants to - wants to have a relationship with his dad and he really - really feels it and so - so in terms of CYHY coming in to see me, you know, certainly early on that was what we were sort of focussing on, you know, trying to - I suppose what I’m sort of interested in is what are the things that maybe underlying, in this case, CYHY’s behaviour. So, you know, not just at a behavioural level, looking at strategies but actually looking at what some of the other factors might be contributing to his anxiety, his agitation, his difficulty regulating himself, all those things…[36]
[36] Refer Transcript p.62.
Mr Nolan gave evidence that CYHY’s behaviours had improved in the time Mr Nolan had been treating him. Mr Nolan attributed this improvement, in part, to his sessions with CYHY and CYHY’s mother being able to reflect during those sessions. Mr Nolan remarked that CYHY’s mother had also been diligent in exploring a whole range of different things for CYHY. Mr Nolan reported that CYHY’s meltdowns were “up and down”, with some periods being better than others. Mr Nolan said that when things are not good, CYHY’s mother would meet with him and they would try to work out what had caused the heightened anxiety or agitation.
Mr Nolan confirmed that his plan for CYHY was to continue to take the psychotherapeutic approach. He qualified this by stating that, if he thought it was important, there was always a behavioural component that he would try to weave (or blend) in.
Under cross-examination, Mr Nolan accepted that it was “best practice” to involve both a psychotherapeutic and behavioural support management approach. When asked by the Tribunal whether Mr Nolan had considered the preparation of a formal BSP for CYHY as an option, he reluctantly accepted that it might be, if it was something that CYHY’s mother wanted to explore, or if CYHY’s school wanted something more formal.[37] Mr Nolan then changed his evidence and said that, in CYHY’s case, he did not think a formal plan was needed.[38]
[37] Refer Transcript p.65.
[38] Refer Transcript p.66.
Ms Koniw
On about 28 November 2019, Ms Koniw (née Desborough) prepared a report about CYHY (Ms Koniw’s Report).[39]
[39] Refer ST-Documents ST3.
In Ms Koniw’s Report, she states that in 2020 CYHY moved to a different primary school at the beginning of Grade 2. Ms Koniw states that CYHY’s current ability to function at home, at school, and in the community was limited due to his disabilities. She opined that the addition of an assistance animal into CYHY’s life would “mitigate and/or improve many limitations”, including in relation to accessing and participating in the community, adapting to unfamiliar situations or locations, refusing to attend school, slow progress in therapy, poor sleep and risk of medication side effects.
In Ms Koniw’s Report, she confirmed that there was no BSP in place for CYHY. She explained:
It must be noted that CYHY does not have a formal behavioural support plan in place. CYHY does not display many behaviours or signs that school are able to identify, therefore CYHY’s school did not agree to support the creation of one. In addition, there are no strategies or tools that appear to help CYHY consistently and effectively in relation to his anxiety, regulation or behaviour therefore any efforts to create one without school input have been abandoned. If a behaviour support plan were to be created, the assistance animal would form a huge part of this.
At the hearing, Ms Koniw told the Tribunal she was in her sixth year of practising as an occupational therapist.[40] She said she had treated CYHY at Amazing Kids OT Clinic from January 2018 to December 2019. During this period, Ms Koniw said she saw CYHY once every three weeks and the sessions would run for about 45 minutes. She said for most of the time, they would work on CYHY’s goal of “emotional and sensory regulation”. Ms Koniw said that in December 2019, she departed Amazing Kids OT and has commenced working elsewhere. Ms Koniw stopped treating CYHY at this time.
[40] Refer Transcript p.23.
CYHY did not submit a report from his current treating occupational therapist, nor were they called as a witness at the hearing.
Ms Koniw said that CYHY often attended the clinic “very dysregulated”, specifically, he would “attend already quite upset, unable to sort of express much verbally”.[41] She said at the beginning of their session, they would do a sensory regulation activity for about 20 to 30 minutes. She said it would take “quite a lot of different activities to try to calm him down, effectively”.[42] When asked, Ms Koniw confirmed that it was difficult for her to teach CYHY things until he was emotionally regulated.
[41] Refer Transcript p.24.
[42] Ibid.
In Ms Koniw’s individual therapy plan dated 28 March 2019, she noted the following:[43]
CYHY is focussed on being happy and well-behaved at school, therefore, internalises a lot in his secondary needs and anxieties at school and then releases them at home. This causes significant distress at home for both CYHY and CYHY’s mother.
…
When CYHY is feeling dysregulated, he has difficulty learning and his brain isn’t functioning at it’s(sic) full potential.
[43] Refer T-Document T10, p.37 and Transcript p.24.
In the AT Template, Ms Koniw states as follows:[44]
His anxiety is extremely high which is causing school refusal, negative self-talk and suicidal talk. An assistance dog will be able to assist CYHY in coping with sensory overload, provide emotional support and act as a bridge between him and the outside world, both functionally day to day and in therapy. The dog will provide intensive proprioceptive sensory input by lying on CYHY or directing him to an appropriate activity, as well as tactile input through [patting] the dog, both of which will assist in lowering CYHY’s arousal levels to a more functional and optimal level.
[44] Refer T-Document T13, p.54.

At the hearing, Ms Koniw explained that an assistance dog is trained to pick up on CYHY’s internal body signs (such as increased heart rate, increased breathing, increased tone of voice) before CYHY does. She said the dog is trained to assist CYHY to cope with that “sensory overload emotional support” before it was too late. She said the dog could provide the input CYHY requires, before he realised that he needed it.[45] When asked, Ms Koniw said she had learnt this by looking at the research referred to on the Smart Pups website.[46]
[45] Refer Transcript p.26.
[46] Refer Transcript p.27.
Ms Koniw confirmed that the strategies that were currently in place for the Applicant were progressing very slowly.
In Ms Koniw’s Report, she outlined the reasons why she considered it appropriate for CYHY to be provided with an assistance animal and how it would assist him to facilitate achieving his goals.[47] However, under cross-examination, Ms Koniw accepted that she did not have any expertise or experience in the placement of assistance animals.[48] She also accepted that she had only treated CYHY until December 2019 and was not aware of any progress or otherwise by him, since that time.[49]
[47] Refer Supplementary T-Document ST3, pp.339 to 343
[48] Refer Transcript p.28.
[49] Refer Transcript p.29.
Ms Koniw agreed that it was important for CYHY to have a “strong and predictable routine in place”, and that introducing an assistance animal would change the routine that CYHY currently had in place. Ms Koniw agreed that it was important, for this reason, for a very well-established management plan to be in place prior to the introduction of an assistance animal.[50] Ms Koniw agreed there was a potential for CYHY’s dysregulation to become heightened, if there were no such plan in place.
[50] Ibid.
Under cross-examination, Ms Koniw accepted that a BSP was an accepted means of addressing the needs of individuals identified as having complex behaviours, such as CYHY.[51] She said that her clients would usually see a psychologist regarding the preparation of a BSP.[52]
[51] Ibid.
[52] Refer Transcript p.30.
Ms Koniw confirmed that she had stated in her report that CYHY did not have a BSP and that he had not displayed many behaviours or signs at school, and that his school had not supported the creation of a BSP.[53]
[53] Refer Transcript p.30.
Ms Koniw confirmed that she had stated in her report that there were no strategies or tools that appeared to help CYHY consistently and effectively regarding his anxiety and regulating his behaviour, and that formal and informal options had been trialled without success.[54] Despite this, Ms Koniw said she remained of the view that an assistance animal would be effective in managing CYHY’s behaviours.
[54] Ibid.
Ms Koniw told the Tribunal that CYHY had undertaken a trial with a local assistance dog organisation.[55] CYHY had attended a local supermarket and department store with the assistance dog and the dog trainer. She said that CYHY had felt a lot calmer and safer and his behaviours of concern were significantly lowered during the trial.
[55] Refer Supplementary T-Document ST3 (Ms Koniw’s Report), p.344
Ms Koniw said that CYHY and his mother had reported that CYHY had a very close relationship with animals and that he felt safe with them. She mentioned that CYHY had said that “animals were better than people”. She said CYHY’s most “calm times” or “calm spaces” were at the zoo. Further to this, Ms Koniw said that CYHY had participated in equine therapy in 2019.[56]
[56] Refer Transcript p.30.
Ms Koniw said that the Smart Pups website had referenced various research articles and that, together with CYHY’s relationship with animals, this led to her drawing the conclusion that an assistance animal would be effective in managing CYHY’s behaviours of concern.[57]
[57] Refer Transcript p.31.
Under cross-examination, Ms Koniw accepted the trial of the assistance dog did not extend to CYHY’s home environment and she accepted the trial was only for a short time.[58] Ms Koniw accepted that having a relationship with an animal outside of the home, was a different situation to having an assistance animal specifically trained to deal with emotional dysregulation. Ms Koniw also accepted that an experience by CYHY with an animal at the zoo would not necessarily equate to the effect of an assistance animal assisting with underlying behaviour problems.[59]
[58] Ibid.
[59] Ibid.
Ms Koniw agreed that that she had stated in her reports that CYHY had enjoyed deep pressure activities such as “Lycra tunnel”, “Lycra swing”, “hotdog roll” and “crashmat” and he had reported they felt nice to him and appeared to calm him.[60] When asked in cross-examination whether CYHY had used those strategies at school, her answer was “no”. Ms Koniw explained that, at that time, the school was not “on board” with CYHY’s treatment, and then CYHY had changed schools.
[60] Refer T-Document T3 p.13, under the heading “Sensory Profile 2”, and Transcript pp.31 and 32.
In terms of whether he used those strategies at home, Ms Koniw said she had not visited CYHY’s home “overly often”; and that she could not guarantee that “anything was used consistently at home”.[61] She confirmed those strategies were recommended to be used consistently by CYHY. Ms Koniw said she would check with CYHY’s mother each session to see how things were going and, from memory, CYHY was “simply was out of control at home at the time” and there was no opportunity to attempt to use those strategies, because his regulation was so heightened or he was already too escalated, for them to take effect.[62]
[61] Refer Transcript p.32.
[62] Refer Transcript p.33.
In Ms Koniw’s Report, she states that an assistance animal would lessen CYHY’s anxiety when in the community and would assist him by providing deep pressure “in preparation” or when his regulation was elevated.[63]
[63] Ibid.
At the hearing, Ms Koniw was questioned about the statement in her report, that CYHY would stay calm during unpredictable times due to the assistance animal applying deep pressure and tactile input. Ms Koniw accepted that it was difficult to know whether an assistance dog applying deep pressure at home would be effective, if it was not trialled in the home environment.[64] Ms Koniw also accepted that she could not remember there being any other deep pressure input that had been used and was effective for getting CYHY to school.[65]
[64] Refer Transcript pp.33 and 34.
[65] Refer Transcript p.35.
At the hearing, Ms Koniw agreed that it was important for CYHY to be able to learn to self-regulate without the assistance of a dog; for instance, while he is at school if the dog was not able to attend.[66] CYHY’s mother told the Tribunal at the hearing that if an assistance dog was provided, the dog would not be attending the school with CYHY.[67]
[66] Refer Transcript p.33.
[67] Refer Transcript p.76.
In relation to adapting to unfamiliar situations and/or locations, Ms Koniw states in her report that alternative strategies to assist CYHY to adapt, such as “social stories” (using simple language to explain a situation) and extensive pre-preparation, had not been effective.
In Ms Koniw’s Report, she states that by CYHY having access to an assistance dog, he would require less support from support workers and the school over time, and that the “carer burden” would decrease, allowing CYHY’s mother more time to follow up on therapies and educate herself.[68] At the hearing, Ms Koniw accepted that someone would need to supervise the dog. She was asked whether this changed her opinion that having the assistance dog would provide CYHY’s mother with respite from her “carer burden”.[69] Ms Koniw answered as follows:
No. So, that is in reference to, so [CYHY’S mother] is basically watching CYHY 24/7 and dealing with his behaviour – well, at the time anyway – dealing with his behaviours 24/7. So she was being pinched, punched, kicked, spat-on all the time. So, that was more in reference to – although, yes, [CYHY’s mother] would need to be watching the dog – she wouldn’t need to be grabbing CYHY, defending herself from being punched. All of that side of things, so I guess more emotional burden, rather than a physical, like watching him burden, if that makes sense.
[68] Refer ST-Document ST3 p. 340
[69] Refer Transcript p.33.
Ms Koniw states in her report that an assistance animal would “naturally” lessen CYHY’s everyday anxiety and irritability, and that he would be able to engage in more therapies. Ms Koniw states that due to this, CYHY would improve his ability to self-regulate over time, “relying less and less on medication to do this for him”.[70] At the hearing, Ms Koniw conceded that it was not within her expertise to comment on the impact of an assistance animal and whether it would lessen medication for CYHY over time, and that this was a matter for his paediatrician.[71]
[70] Refer ST-Document ST3 p.343.
[71] Refer Transcript p.36.
Ms Koniw opined in her report that the addition of an assistance animal would drastically shorten the time frame for all therapies, such as speech therapy and engagement with a psychologist.[72] When asked to explain the basis of this conclusion, Ms Koniw said she had seen CYHY for two years and that he had made “very, very, very little progress in therapy due to the emotional dysregulation”.[73]
[72] Refer ST-Document ST3 p.345.
[73] Refer Transcript p.36.
Ms Ploszaj
Ms Alicja Ploszaj, occupational therapist, was engaged by the NDIA to provide an opinion and she did so “on the papers”. Ms Ploszaj did not undertake a formal assessment of CYHY. Ms Ploszaj prepared a report dated 17 August 2020 (Ms Ploszaj’s Report)[74] and an addendum to the report on 30 August 2020 (Ms Ploszaj’s Addendum).[75]
[74] Refer ST-Document ST15.
[75] Refer ST-Document ST17. In Ms Ploszaj’s Addendum, she considered the opinions expressed in Dr Seksel’s Reports and Ms Ploszaj re-stated views consistent with those she had expressed in her earlier report dated 17 August 2020.
Ms Ploszaj is a qualified occupational therapist with 13 years of experience. She holds a Bachelor of Applied Science in Occupational Therapy and a Master of Science in Neurorehabilitation. Ms Ploszaj states that she currently works in the medico-legal field and in paediatrics. Of relevance, Ms Ploszaj states she has five years of experience in paediatrics, treating a variety of conditions including ASD. She is working as a treating practitioner in paediatrics, and she said she sees between nine and 20 children per week who have an ASD diagnosis.[76] Ms Ploszaj’s experience with assistance animals is limited to the equine variety, as pertains to hippotherapy.[77]
[76] Refer Transcript p.150.
[77] Refer Transcript p.156.
In Ms Ploszaj’s report, she states that it remained unclear whether an assistance dog would serve CYHY to assist him with the regulation of his sensory and emotional needs; or whether the dog would also be a source of stress if it was used in a therapeutic manner.[78] She states that the majority of CYHY’s experiences with animals have been of a companion nature and the animals had not been directly involved in the management of dysregulated behaviour and meltdowns.[79] Ms Ploszaj recommends that a long trial period with an assistance dog be implemented to identity whether it was an effective form of therapy for CYHY. She also recommends that a BSP be trialled, along with “a visual and verbal schedule and rewards system” before introducing an assistance dog.[80] Ms Ploszaj expressed her concern that if this was not implemented before the assistance dog was introduced, it may result in behaviour by CYHY heightening due to a further disruption to the daily routines. Ms Ploszaj states it was important that CYHY and his family ensure they first have a strong and predictable routine built on visual and verbal schedules along with effective management techniques for behaviour.[81] Ms Ploszaj recommends that CYHY also receive psychological and speech therapy support, sensory diets, and equipment for emotional regulation.[82]
[78] Refer ST-Document ST15 p.440 (Ms Ploszaj’s report p.6).
[79] Ibid.
[80] Ibid.
[81] Ibid.
[82] Ibid p. 444 (Ms Ploszaj’s report p.10).
If an assistance dog was placed with CYHY, Ms Ploszaj stated in her report that in the interest of CYHY’s safety, at no point should his mother’s supervisory role be decreased or replaced by the assistance dog, in the community or within the home. CYHY’s mother gave evidence at the hearing that she clearly understood that her role as the handler of an assistance dog would be to always supervise the dog in the presence of CYHY and she highlighted that they lived in a compact-sized apartment which would not present a challenge to this supervisory aspect touched upon by Ms Ploszaj.
Ms Ploszaj also addressed the issue of novelty. In doing so, she states in her report that an assistance dog may provide CYHY “with a source of distraction and assist him to regulate the external environment by providing him with a safe and comfortable companion”. However, Ms Ploszaj states that it was unknown whether the source of distraction would continue after the initial period of novelty.
Ms Ploszaj noted reports of CYHY having become violent and aggressive toward people who intervene during a meltdown; and while she had no reports of his behaviour toward animals at such times, she considered there to be risk that, in time, CYHY may view the animal as another source of therapy and may dislike the input he received from it when he was feeling heightened.[83] Ms Ploszaj recommended a “graded approach” with support for his family and for the welfare of the animal.[84] Ms Ploszaj considered this to be a further reason why CYHY should undertake an extensive trial of using an assistance dog to test whether the novelty wore off over time, in which case this type of support may not be considered value for money as an NDIS support.
[83] Ibid p. 442 (Ms Ploszaj’s Report p.8).
[84] Ibid at page 11.
Ms Ploszaj also states she is concerned about the effect an assistance dog would have on CYHY’s abilities to function and socialise as a teenage and young adult.[85] She considers that it would be appropriate, given CYHY’s young age, to allow him to develop independent social and functioning skills in his early school years, prior to the introduction of external supports and points of differentiation between himself and his peers, such as the need for an assistance dog.[86] She states in her report that it was difficult for her to identify how far from age appropriate CYHY’s interactions were at the time she wrote her report, given she had not formally assessed him. She was also unable to identity his potential for CYHY to catch up with his peers with traditional therapy methods.[87] The Tribunal does not accept this evidence and considers that the literature supports a conclusion that the provision of an assistance dog to a person with ASD of all ages is likely to be beneficial and effective and is likely to assist CYHY to form friendships during his adolescence based on the evidence of Dr Hazel.
[85] Ibid at page 10.
[86] Ibid at page 11.
[87] Ibid at page 11.
The difficulty with the recommendation by Ms Ploszaj that CYHY undertake a trial, as set out in paragraph [97], is that the support in question is a dog and it seems from the evidence, that CYHY is likely to form a close emotional bond with or attachment to the dog. So, to speak of a trial is not as feasible as trialling a piece of equipment and simply returning it if it was no longer providing a benefit. To remove a “trial” dog, if it does not assist with his emotional regulation as had been hoped for, may lead to significant distress to CYHY. The Tribunal acknowledges that there may be instances where the first match is unsuccessful, which may lead to the removal of the dog and its substitution with another assistance animal which may also cause distress to CYHY. But the Tribunal considers that it is important to minimise the number of dogs that CYHY forms bonds with throughout the entire placement process by not introducing an initial “trial phase” as has been suggested by the Respondent as an alternative.
Ms Ploszaj acknowledged that a 2016 La Trobe University report (La Trobe Report)[88] had indicated that parental reports have suggested that the presence of an assistance dog in the home had reduced “child anxiety”. She states that this may result in a positive result in the possibility of achieving emotional regulation and behaviour through the therapeutic use of an animal, but she opined that these results are not guaranteed in every individual, and “this approach should be utilised after first trialling more sustainable therapy approaches which can be transferred between environments”.[89]
[88] ST-Document ST1 (Tiffani Howell, Pauleen Bennett and Alan Shiell, Reviewing Assistance Animal Effectiveness: Literature Review, Provider Survey, Assistance Animal Owner Interviews, Health Economics Analysis and Recommendations (Final Report to National Disability Insurance Agency, 30 September 2016)).
[89] Refer ST-Document ST15 p.440 (Ms Ploszaj’s report p.11)
Ms Ploszaj acknowledges in her report that research studies had indicated that:[90]
(a)dogs may prime autism for therapy by increasing positive engagement (Silva et al 2011);
(b)assistance dogs in a domestic environment may increase child safety, outdoor access, enhancement of communication and social interaction with other people and reduced child anxiety (Redefer and Goodman 1989);
(c)some children with ASD demonstrated a preference for, and responsiveness to, dogs more than other people, and objects, and the arrival of a dog in a domestic context may trigger prosocial behaviours in individuals with ASD (Grand George et al 2012);
(d)dogs can support a child’s communication, their experience of emotional connection with others, and their participation in everyday life (Solomon 2020); and
(e)companion animals can contribute to social and behavioural development and support, and improved mental health and quality of life (Lundqvist Persson 2015).
[90] Ibid p.443 ((Ms Ploszaj’s report p.9).
Ms Ploszaj pointed out that those studies were of a small sample size, had not included a control group, and had failed to provide comparisons against a range of treatment modalities such as therapy, toys and/or people.[91]
[91] Ibid, p.444 (Ms Ploszaj’s report p.10).
Ms Ploszaj considered that before introducing an assistance dog into CYHY’s night routine, it was appropriate to trail first, a “traditional approach” of “alternative exercise and equipment options” such as weighted blankets and compression sheets. Ms Ploszaj was concerned that CYHY might develop a reliance upon an animal-led approach which may become difficult to change in the future, and which may lead to difficulties attending organised events and/or maintaining friendships.[92]
[92] Ibid.
At the hearing, Ms Ploszaj was asked to describe a BSP. She said it was plan prepared by professionals who work a person and other people who are close to the person, such as their family members. She said a BSP deals with how to prevent challenging behaviours and if they occur, how to manage them. She said there can be a plan for school, at home or when the person is in the community, or there can be a plan that covers everything.[93]
[93] Refer Transcript p.152.
Ms Ploszaj said that normally the treating psychologist would be heavily involved in devising a BSP, and an occupational therapist would provide their expertise. Ms Ploszaj said that if the difficulties experienced by the person for whom the plan is devised, is behaviour management, the professional managing the person’s behaviour, that is their psychologist, would most likely take the lead. She added that if the person is experiencing difficulties with emotional regulation and being able to manage sensory issues, their occupational therapist would take the lead on those areas. She said a speech therapist could also be involved, if there are communication issues, or a paediatrician, if the person took medication throughout the day.
Dr Hazel

At the request of the NDIA, Dr Hazel prepared a report dated 2 June 2020 (Dr Hazel’s Report)[94] and supplementary report dated 12 March 2021 (Dr Hazel’s Supplementary Report).[95] Dr Hazel was asked to undertake a literature review and to outline the existing evidence base, including literature and research, on the effectiveness of assistance dogs in relation to children with ASD.
[94] Refer ST-Document ST11.
[95] Refer Exhibit A3.
Dr Hazel acknowledged that the 2016 La Trobe Report had concluded as follows:
Within the scope of this study, there is currently no robust evidence in the literature attesting to the general effectiveness of AAs or their value for money as a support for people with disability. The limited evidence available along with the lived experience of users of AAs, suggests a range of potential benefits.
Dr Hazel reports that there some studies not included in the 2016 La Trobe Report as outlined below, and other studies published since this report, which add to the evidence base. However, Dr Hazel states that there have not been any studies published since the 2016 La Trobe report which significantly increased the overall level of evidence, specifically, no large studies with randomised design and objective measures.
Dr Hazel refers to three more studies since the 2016 La Trobe Report. They include:
(a)A study by M. Yamamoto and L.A. Hart, (2019). Professional- and Self-Trained Service Dogs: Benefits and Challenges for Partners With Disabilities. Frontiers in Veterinary Science, 6 (Yamamoto Study). The Yamamoto Study was undertaken mostly in the United States with a relatively small sample size (that is, 73 professionally trained dogs and 76 self-trained dogs). The conclusion reached in the Yamamoto Study was participants who self-trained their service dogs experienced more burdens when first living with their assistance animals than those living with professionally trained dogs.[96]
(b)A study by Brown, S. X. (2016). Service Dogs for Children with Autism: A Parent’s Perspective: a Dissertation Submitted in Partial Fulfillment of Requirements for the Degree of Doctor of Psychology in the Graduate School of Chestnut Hill College. Dr Hazel reports that this study concluded as follows:[97]
In this qualitative study 15 parents of children with autism and who had service dogs were interviewed. Children were aged 5 to 18 years. Dogs had lived with the families from 3 months to 7 years with a mean of 3.3 years. In 3 participants it was their second service dog. Thematic analysis was used. The most common benefits relating to the service dog were increased physical safety (13 of 15), improved social and communication functioning (13 of 15), and improved emotional and behavioural functioning (12 of 15). Five participants reported decreased anxiety and three reported a decrease in aggressive behaviours after obtaining the dog. Four participants reported their child as less likely to be “overstimulated” or “overwhelmed” when the dog was present. There were also benefits for the participants’ families, including increased family freedom and reduced parental stress. Challenges identified included the time and energy investment of having a service dog, public and school access, and financial demands.
(c)A study by Silva, K., Lima, M., Santos-Magalhaes, A., Fafiaes, C., & de Sousa, L. (2018). Can Dogs Assist Children with Severe Autism Spectrum Disorder in Complying with Challenging Demands? An Exploratory Experiment with a Live and a Robotic Dog. Journal of Alternative and Complementary Medicine (New York, N.Y.), 24(3), 238-242. Dr Hazel reports the conclusions from this study as follows:[98]
In this study ten male children aged 6 to 9 years and with severe ASD were exposed to their preferred toy, a live dog, or a robotic dog, before being exposed to a demanding task waiting for permission to eat a desired food item. The dog was a female Beagle certified as a therapy dog. The emotional expressions, latency to distress, compliance and behaviour of the children during the test were analysed. Heart rate reactivity was also measured as an objective physiological measure on distress. Latency to distress was longer in the live dog versus toy group, and committed compliance (child is internally motivated to accept a directive) was higher in the live dog than the toy and robot groups. Heart rate reactivity was lower in the live dog than toy condition (i.e. the child was less stressed). As stated by the authors the results “…are only preliminary and their clinical significance needs to be assessed in future studies”.
[96] Refer ST-Document ST11, p.378 (Ms Hazel’s Report p.1).
[97] Ibid p.379 (Ms Hazel’s Report p.2).
[98] Refer Ms Hazel’s Report on page 2.
Dr Hazel also reports upon the conclusions in three studies that were omitted from the 2016 La Trobe Report and on two systematic reviews. The Tribunal has considered those studies. Dr Hazel states that while some of them report new findings, none of them had significantly changed the conclusions of the 2016 La Trobe Report due the lack of randomised controls in those further studies.
Dr Hazel acknowledges that the published studies are “not of the highest quality”. Nevertheless, she states that the weight of evidence would suggest that an assistance animal may provide benefit to a child with ASD and their family.[99]
[99] Ibid p.382 (Ms Hazel’s Report p.5).
Dr Hazel was asked to provide an opinion in her report about “best practice” methodology for training assistance dogs; and whether this departed from the methodology proposed by Smart Pups.[100] Dr Hazel began by saying there were no enforced published guidelines for the training methodology of assistance dogs. She refers to a broad and non-enforceable guideline issued by Assistance Dogs International.[101] Dr Hazel states that in her view, the training needed to be effective, the dogs should be “fit for purpose”, and humane training methods used.
[100] Ibid.
[101] Ibid p.383 (Ms Hazel’s Report p.6).
Dr Hazel notes that Smart Pups assistance dogs were trained to respond to “child-specific cues and patterns that indicated heightened or dysregulated behaviour”, to “lap” (dog places head on the child), “nuzzle” (dog pushes into the child to disrupt behaviour), and “over” (dog lays across the child to provide weighted comfort. Dr Hazel considers that it was appropriate to train a dog to do all those behaviours. Dr Hazel stated in her report that those behaviours by the dog could be highly effective in preventing meltdowns and increasing compliance.[102] Dr Hazel states that she had a personal contact with a family with a child with ASD and that the child had not slept through the night until they got an assistance animal. She said that the dog’s presence may help to calm a child with ASD.[103]
[102] Ibid.
[103] Ibid.
Dr Hazel also considers it appropriate that the training by Smart Pups involve five days of training with the dog trainer and handlers in the family’s location, followed by a weekly call for six weeks post-placement, and a follow-up visit by the trainer.[104] As for the training of the dog itself, Dr Hazel remarks that the information provided by Smart Pups was limited but she endorses the proposed post-placement support to allow for accommodations between the dog and the recipient after placement.[105] Dr Hazel comments in her report that the lack of such information about the training methods was not unusual and did not cause her concern. She remarked that the organisation had been successful in placing dogs and, in her opinion, the trainers appeared to be well-qualified.[106]
[104] Ibid.
[105] Ibid.
[106] Ibid.
Dr Hazel states in her report that there were no specific regulations regarding the hours per day that a service dog should rest and work. She says the dog has a high level of obedience and would respond at any time, if the child displayed cues or behavioural patterns of escalation. Dr Hazel considers the stipulation by Smart Pups that the dog be walked twice a day for 30 minutes was adequate, and that the health and welfare of the dog was sufficiently protected with the support provided. She refers to Smart Pups continued ownership of the dog for a period of three years post-placement, and that a manual would be supplied to stipulate requirements for feeding, veterinary checks, welfare, and preventative healthcare for the dog.
Dr Hazel states, in her Supplementary Report, that there is no scientific evidence available in relation to the amount of rest and sleep a service dog would require per day. She opines that it is highly likely to vary according to the activities of the dog during the day, with more intense mental and physical effort requiring longer rest periods. She said it was also highly likely that individual dogs, like humans, would vary in the amount of rest and sleep they required.[107] Dr Hazel also refers to a study indicating that half of the Labrador breed will live up to 10.6 to 14.0 years of age based on a study sample of 418 dogs.[108]
[107] Refer Exhibit A3 (Dr Hazel’s Supplementary Report p.3.
[108] Ibid p.4, referencing a UK study by D.G. O’Neill, D.B. Church, P.D. McGreevy, P.C. Thomson, D.C. Brodbelt, ‘Longevity and mortality of owned dogs in England’ (2013) 198 The Veterinary Journal 638.
Dr Hazel notes that Smart Pups stipulates that there must a supervising adult when the child is with the dog in a private home. The supervising adult has an obligation to remove the dog if the child becomes violent. She considers it unlikely that CYHY would be violent towards an assistance dog, because he had not been violent towards his cat. She said that if there were negative interactions between the dog and CYHY, they are likely to be detected and reported during visits from Smart Pups and public outings by the dog and team.
Dr Hazel opines in her report that an assistance dog could assist CYHY to achieve certain goals. Dr Hazel refers to numerous comments made by parents, as referred to in the 2016 La Trobe Report, to provide examples of how an assistance dog might help CYHY to achieve those goals.
In addition to the specific tasks and functions the dog is trained to perform, Dr Hazel states that presence of a dog would provide companionship and psychological benefits to CYHY. Dr Hazel states that it would not be “a panacea to cure all”, and that other interventions would still be necessary. She said that an assistance dog may facilitate those other interventions, if CYHY is able to communicate better and have less meltdowns.
When asked what tasks and functions a companion animal would be able to play, as an alternative to an assistance animal, Dr Hazel considered it unlikely that, with previous socialisation and training, a companion animal would perform the same functions as an assistance animal. Dr Hazel said she had heard of a number of examples where a family, who has tried everything, got a dog for their child with ASD. She said that sometimes, it goes very badly for the family, who are already stressed and time-poor in caring for their child, to have a poorly trained dog that is not a good match for the child. She said it can result in “poor welfare outcomes” for a dog whose temperament in not suited to living with a child with ASD. In CYHY’s case, Dr Hazel opined that CYHY’s mother “would not have the required skills in dog training to be able to even start to train a pet dog to help with her son”.
Dr Hazel states in her report that assistance dogs are carefully selected and unlikely to behave aggressively if they have been bitten, kicked or hit by the child with ASD, but she said that “every dog will have its limits”.[109] She gives an example where she had witnessed an assistance dog walk into a room where a person was yelling and kicking, and the dog’s presence caused those behaviours to cease. Dr Hazel states that if the dog was exposed to yelling and kicking for longer periods, it was possible the dog would feel anxious. Dr Hazel said it was the responsibility of the parent and Smart Pups to pick up on this and intervene. She pointed out that Smart Pups have stated that it would not place a dog if it was not suitable and will remove a dog if the relationship is not working out.[110]
[109] Refer ST-Document ST11, p.387 (Ms Hazel’s Report p.10).
[110] Ibid.
Dr Hazel refers to the indication by Smart Pups that the assistance dog’s temperament, energy levels, adaptability, and sound sensitivity are matched with the needs of the child.
Dr Hazel states that an assistance dog may become distressed if the dog witnesses the child with ASD yelling, biting, kicking and/or hitting the full-time carer of the dog. She said if this situation arose, the dog trainer would come up with management strategies on a case-by-case basis, which might include removing the dog, or having the dog present, which may serve to reduce those behaviours.[111]
[111] Ibid p.388 (Ms Hazel’s Report p.11)
Dr Seksel
Dr Seksel prepared a report dated 17 August 2021 (Dr Seksel’s Report).[112]
[112] Refer ST-Document ST13.
At the hearing, Dr Seksel confirmed that she was a veterinarian and had obtained a degree in behavioural sciences with a major in psychology and a Masters (Honours) degree in behavioural sciences in dog training and socialisation (and long and short-term behavioural effects). Dr Seksel stated that she was a registered board specialist in veterinary behavioural medicine in Australia, New Zealand, the United States, and Europe.
At the hearing, Dr Seksel confirmed that she is an academic, with a clinical element to her practice. Dr Seksel said she is a specialist in behavioural medicine and sees animals (specifically, dogs, cats, birds and occasionally horses), with mental ill-health, such as anxiety disorders, post-traumatic stress disorder and obsessive-compulsive disorders.[113]
[113] Refer Transcript p.116.
In Dr Seksel’s Report, she states the following:
(a)animals can bring much joy to the lives of people;
(b)a child with or without ASD is likely to benefit from having a well-behaved, neurotypical companion animal, especially if they are mutually bonded;
(c)there is some anecdotal evidence suggesting that the relationship between a child with ASD and an assistance dog can be a successful one; and
(d)equally, a companion dog may provide support for persons, including children with mental health disorders.
Dr Seksel was asked at the hearing why it was important to have regard to the circumstances of the child or the conditions and home environment, when looking at any perceived benefits that an assistance animal might provide. Dr Seksel gave the following answer:
… Every individual is going to react differently at different times, at different places, so it’s a very broad brush when we look at things like that. So knowing the age of the child, how typically that child is developing, you know, physically as well as mentally, will have an impact on what they can learn, how they can learn. It also impacts on, I guess in a broader picture, how that child/person interacts with the world, with others in the world, all living creatures. So it’s not a prescription you can say well if a child has a particular illness that this is how it’s going to be best managed. It really depends on that individual, which is why when we’re dealing with physical or mental health it’s much more complex than may appear on the outside.
Dr Seksel was asked about the rest requirements of an assistance animal at the hearing. Based on “science” and literature, Dr Seksel said that all dogs needed at least an aggregate of 16 hours rest and sleep per day.[114] Dr Seksel said that a dog working with a child with autism is trained to be on alert, unless they are taken out of the home. Dr Seksel gave evidence that a lack of sleep will cause a dog to become irritable, unpredictable, and often aggressive. Dr Seksel said that establishing a predictable and stable routine can be very helpful strategy.[115]
[114] Refer Transcript p.119.
[115] Refer Transcript p.120.
In Dr Seksel’s Report, she states that it was always necessary for a child with ASD and an assistance dog to be supervised. When Dr Seksel was asked about this at the hearing, she confirmed that this was a necessary requirement and that the person supervising needed to be “within arm’s length”. Dr Seksel stated:[116]
…ideally you have one adult for the child and one adult for the dog, and when I’m talking about arm’s length, if something goes wrong I should be able to just reach out and touch, and that’s one of the reasons if mum has to go to the bathroom, then the dog should be crate‑trained, put in the crate or put behind baby gates, put in a room, because it only takes a split second for an accident to occur, and they do occur in a split second.
[116] Refer Transcript p.121.
In Dr Seksel’s Report, she states:
There is no way to predict how a neurotypically developing child and neurotypical dog will interact. This becomes even harder if the child is not developing neurotypically. As children with autism are not neurotypical that makes the prediction of a child - dog interaction even more difficult. In my opinion the unpredictable behaviour of autistic children warrants continued adult supervision when the child is with an animal. In relation to [CYHY] his acting out in a violent way towards people around him poses a higher risk, hence full time supervision when he is with a dog or any pet would be required.
Dr Seksel was asked whether the risk of a dog biting a child was present, even in the case of an assistance animal. Dr Seksel responded as follows:
It’s a risk in all animals, and the reason it is, that we make this assumption that this dog is always going to be physically fit and physically healthy, but dogs get ear infections, they get bad teeth, they get tummy aches - they get all the same sort of diseases as humans do, and what that basically means, you know, most days an assistance dog may well be really good at doing that, but if you wake up with a toothache or a headache or a sore ear or a skin disease, then you’re not going to behave in the same way that day regardless of how well your training is, and we can’t predict that in the future. That’s why that supervision is so important always with all kids, whether they’re neurotypically developing kids or not. You know, when you talk to most paediatricians, they will tell you supervision with animals is really, really important, because the child doesn’t necessarily mean to hurt the dog, or the dog mean to hurt the child, but you know, I’ve been involved in cases where a dog was euthanized because it bit a child, but that child had put a pencil down the dog’s ear and penetrated the eardrum into the brain. Now, I don’t care how well‑trained an assistance dog is going to be, if you put a pencil in that dog’s ear that dog is going to react, and that’s what I’m talking about supervision. It’s too easy to assume that something can’t go wrong in a split second. It can and it does.[117]
[117] Refer Transcript p.121.
Dr Seksel added that this risk existed even if the child involved did not exhibit certain violent or aggressive tendencies and she said that one study in Europe had recorded that 100 per cent of the children had been bitten in circumstances where there was no adult supervision.[118]
[118] Ibid.
Dr Seksel was asked whether the short interactions that CYHY had experienced with his pet cat over a six-month period, and during the fortnightly equine therapy, could provide a meaningful indication of how he would react to an assistance animal in his home. Dr Seksel gave the following answer:[119]
It would be impossible to extrapolate on that, because the cat in the home - cats are very different from dogs. They have the ability to jump up and get away. Cats prefer a vertical space, so a lot of cats sleep on top of cupboards, on top of fridges, somewhere where a young child wouldn’t be able to reach them. So their coping mechanism is either hide or run away. A dog would not be able to do that. Equine therapy is great, because it’s very controlled, it’s supervised, somebody is watching the child, someone’s watching the horse, and I think it is great therapy. There is no doubt about it, but you know, if that horse was to move into that house seven days a week, 24 hours a day, there would be a totally different relationship to a horse that you ride for a limited time and get benefit from that, and that’s the difference from even going to - I don’t know, going to therapy somewhere. You go and see your therapist, they do the training, there’s time, you know, half an hour or an hour, and then you go home, but if that therapist was to live with you 24/7 there would be a whole different relationship, just like there’s a different relationship with a parent as opposed to an aunt or uncle who visits occasionally, and having that dog in the household 24/7, you can’t extrapolate what that particular individual dog is going to do in that household, because you just don’t know until you do it.
[119] Refer Transcript pp.122 and 123.

Based on those figures, it is reasonable to expect that if an assistance dog was placed with CYHY, it is likely to provide him with at least about five good years of service as an assistance animal, if the dog remains in good health. The Tribunal is satisfied, based on this evidence, that the provision of an assistance dog to CYHY is expected to provide him with long-term benefits provided the match is a success. The rates of success of matching a dog with a client at Smart Pups are high, according to the evidence of Ms McAlister and Ms Denny (and this has also been the case at Dogs for Kids according to the evidence of Ms Hunter). If a match is unsuccessful, further attempts are made to match a dog with the client, resulting in virtually all Smart Pups or Kids for Dogs clients having been successfully matched with a dog.
The Tribunal rejects the Respondent’s contention referred to in paragraph [224] above. The Tribunal finds that the provision of an assistance dog to CYHY would substantially improve the life stage outcomes for him and be of long-term benefit to him.
The Tribunal acknowledges, as a general proposition, the possibility that the novelty of a child with ASD having a dog may wear off over time; and as a result, the effectiveness of an assistance dog as a support may decline. The same can be said of the interest levels of any child with any pet. However, based on the evidence that CYHY has a special interest in animals, as demonstrated by his continued interest in equine therapy, and as demonstrated in discussions between CYHY and his doctors and therapists, the Tribunal is satisfied that the likelihood of CYHY’s interest in an assistance dog waning after the initial period, to a point where the support is no longer effective or serving to benefit him, is low. The Tribunal considers there is little basis to expect this to occur in CYHY’s case.
The Respondent contends that the Tribunal is unable to be satisfied that other supports, such as assistive technology, therapy supports, a BSP and/or a self-funded companion animal, would not achieve the same outcome as an assistance dog.[197]
[197] Refer Respondent’s Closing Submissions at [24].
Dealing first with the suggestion by the Respondent that a self-funded companion animal (or pet dog) might achieve the same outcome as the provision of an assistance dog to CYHY. This is where the evidence of Dr Hazel and Dr Seksel differed, with Dr Seksel supporting this suggestion and Dr Hazel refuting it. After hearing evidence from both experts at the hearing, the Tribunal preferred the evidence of Dr Hazel.
Both experts were eminently qualified and peers in this speciality area of animal behavioural sciences. However, the Tribunal gained in impression during the hearing that Dr Hazel has a closer handle on the individual circumstances of CYHY and demonstrated an intimate knowledge of the relevant literature in relation to the issues arising in this case. Specifically, Dr Hazel was able to articulate logical reasons why a pet dog would not suffice in CYHY’s cases set out in paragraph [120] to [123] of these Reasons for Decision. For instance, Dr Hazel explained that the level of training of an assistance dog required for disability management and public access was not feasible for most people to achieve. Dr Hazel considered that most individuals, with or without a disability, probably lacked the understanding of animal behaviour, learning and ability to effectively train an animal to a level required to meet this extremely high standard. Dr Seksel had not referred to or referenced in her report the Yamamoto & Hart research study when it was appropriate for her to have done so – see paragraph [145] of these Reasons for Decision.
The Tribunal accepts and notes the further undisputed evidence of Ms McAlister and Ms Denny (as corroborated by Ms Hunter), that assistance dogs are raised and trained in a controlled environment for the first few years, where they can learn coping skills and not be exposed as a developing puppy to an environment likely to cause distress to a puppy/young dog and before they are properly trained to cope with being exposed to such an environment. Dr Seksel and Dr Hazel agreed that an anxious dog was less likely to learn than a relaxed animal – see paragraph [150] of these Reasons for Decision. Dr Hazel asserted that 10% of pet dogs experienced anxiety. Dr Seksel disputed this and said that 20% of pet dogs experienced anxiety and that it might be as high as 80% and that it was the main reason why most assistance or guide dogs failed – see paragraph [151].
Either way, the Tribunal finds that anxiety not infrequently arises in dogs and that the proper training and structured exposure of a dog to a child with ASD was critical to the prospects of the dog being able to provide a benefit to the child. Under cross-examination, Dr Seksel disagreed with the proposition that a pet dog trained in a household where the family was stressed, and time poor was more likely to produce bad behavioural outcomes in the dog and be bad for the dog’s welfare based on her view that “the really resilient animals do really well in these households”. Dr Seksel opined the that the temperament and personality of the dog was the critical factor – see paragraph [154] of the Reasons for Decision.
Dr Seksel gave evidence that a lot of dogs would perform the behaviours that an assistance dog is specifically trained to perform. The Tribunal accepts that some dogs might be able to do so instinctively, and that the “really resilient” dogs could fare well raised as a pet dog in households where children with ASD live. However, there was no other evidence upon which the Tribunal could be satisfied as to how commonly this would be the case.
By acquiring a dog through Smart Pups, the client is guaranteed that, at least at the start of the placement, the assistance dog will be able to perform the three desired behaviours of “lap”, “nuzzle” and “over”; and they are suitable to undertake their public access role and to behave appropriately while doing so, as this is a precondition to public access accreditation. If a pet dog is relied upon to perform the desired behaviours, this may or may not be achieved and a pet dog will not have the same public access rights as an assistance animal which would curtail the opportunities for the dog to be used to promote CYHY’s broader engagement in the community.
Specifically, the Respondent contends that it could not be deduced that an assistance dog’s trained behaviour of placing his head on CYHY’s lap, being a form of pressure therapy, would have any functional outcome of regulating CYHY’s emotions. The Respondent relied upon CYHY’s mother’s evidence that CYHY had used a “body sock” as a form of pressure therapy and only did so once per month, because CYHY had not felt a need to use it anymore. The Tribunal is unable to draw any conclusion from CYHY’s experience of using a body sock, and it considers this to be a different type of pressure therapy than that which would be provided by a living, breathing assistance dog with whom CYHY is likely to develop a close bond, given his strong interest in and love for animals.
In the 2016 La Trobe Report, the authors referred to qualitative reports from consultations with owners of assistance animals suggesting that a non-sentient substitute would not suffice and that the improvements they had experienced were due to the presence of an assistance animal able to fulfill a triple role of companion, disability management tool and social lubricant in interactions with family and friends – see paragraph [140] of the Reasons for Decision.
The Tribunal does not consider that CYHY’s experience with using a body sock forms a sufficient basis to conclude that the pressure exerted by an assistance dog performing certain trained behaviours would be ineffective. Such a conclusion is inconsistent with the outcome of the research studies conducted with the use of assistance dogs with clients with ASD.
The Respondent contends that it was not clearly identified what tasks an assistance dog would be trained to perform. The role the dog will play is quite simple. It will be taught to “nuzzle”, “lap” and “over” as described by Smart Pups (see paragraphs [113] and [114] of these Reasons for Decision), and as endorsed by Dr Hazel, who said it was appropriate to teach the dog those behaviours and they could be highly effective in preventing meltdowns and increasing compliance – see paragraph [114] of these Reasons for Decision. Importantly, the dog would be trained to tolerate exposure to a child exhibiting a high level of anxiety or behaviours of concern as they interact with the dog. Dr Hazel commented that the Smart Pups trainers appeared to be well-qualified, and the evidence given by Ms McAlister and Ms Denny also left the Tribunal with this impression – see paragraph [164] of these Reasons for Decision.
Dr Worth opined that an assistance animal was likely to result in fewer meltdowns for CYHY and increase his self-regulation. The Respondent was critical that Dr Worth had stated that she had formed this opinion based on her general knowledge of companion dogs and what they are used for, and that she had friends or acquaintances who used companion dogs. The Respondent referred to Mr Nolan’s evidence that he was not “fully aware” of what behaviours an assistance dog would be trained to perform.[198] The Respondent contends that those witnesses’ lack of knowledge of the specific trained behaviours of an assistance animal should affect how much weight the Tribunal attributes to those opinions.
[198] Ibid at [26].
The Tribunal was cautious as to the degree of weight to be given to the evidence of Mr Nolan, Dr Worth, and Ms Koniw, in relation to their recommendation that an assistance dog would be a beneficial support for CYHY. However, the Tribunal does not consider it appropriate to disregard their opinions, and it was important to consider their evidence coupled with the evidence of Dr Hazel, who is a specialist in veterinary behavioural sciences and the use of assistance animals. Mr Nolan, Dr Worth and Ms Koniw have all treated CYHY for some considerable time. They know him well, from which it can be inferred that they have a good appreciation of CYHY’s anxiety levels and how he responds (or not, as the case may be), to different initiatives aimed at reducing his anxiety. They are also likely to have a good appreciation of CYHY’s strong interest in and love for animals.
Further, the recommendations by those three witnesses aligned with Dr Hazel’s evidence and the observations arising from the research studies presented to the Tribunal, such as those referred to in the 2016 La Trobe Report and the supplementary research articles referred to in paragraph [109] in these Reasons for Decision, recording experiences which support a conclusion that the provision of a trained assistance dog to a child with ASD would be beneficial. Specifically, the Brown Study results show benefits to the clear majority of the 15 children with ASD sampled as part of that study, including increased physical safety, improved social and communication functioning, and improved emotional and behavioural functioning. Appropriately, Dr Hazel acknowledged the studies overall were not of the highest quality, but she considered that the weight of the evidence would suggest that an assistance animal may provide benefit to a child with ASD – see paragraph [111] of these Reasons for Decision.
The Respondent contends that it is unclear whether an assistance animal would offer any long-term benefits to CYHY because there was a 24-month waiting period for the placement of a Smart Pups dog. The Respondent contends that CYHY’s needs had changed over the last 12 months as evidenced by his mother’s reports that his meltdowns were no longer marked by violent behaviour and there had been noticeable improvements since he had been at his new school.[199]
[199] Refer Respondent’s Closing Submissions at [27].
However, the Tribunal considers that it should make its decision based on the Applicant’s condition and functionality as it presently stands, rather than to make a projection as to how CYHY might be in 24 months from now. CYHY has been granted access to the NDIS on the basis that he has permanent conditions which cause him substantial functional impairment when undertaking certain activities. In that context, the Tribunal would need to have compelling evidence before it to support a finding that a participant’s impairments were expected to improve, and for this to form a basis upon which to deny the provision of a support to a participant. This is particularly so in cases involving a child participant where it is critically important that there be early intervention of effective strategies, provided they meet the criteria under s 34(1), to assist with self-regulation. This is key to promoting a child participant’s prospects of being able to engage effectively with the people around them and to participate in various aspects of their daily life, so they do not experience developmental delay on top of the impacts of their impairments.
The Tribunal does not consider that there was compelling evidence before it in this case, upon which it could conclude that CYHY’s condition could reasonably be expected to improve and which was likely to result a reduction in his impairments and the level of his disability-related needs, such that the Tribunal could not be sure the provision of an assistance dog would be effective if it was not placed with CYHY for another 24 months. The Tribunal disagrees that the degree of effectiveness of an assistance dog to support CYHY in 24 months would be less than it was at the present time, or that it would not offer CYHY longer-term benefits.
The Respondent contends that if an assistance animal were to be unsuccessful, the $20,000 contribution would remain non-refundable. The Respondent refers to the absence of a face-to-face assessment by Smart Pups of CYHY or his home environment before it will receive the $20,000 donation and place him on a waiting list; and submits that Smart Pups’ vetting process of assessing the suitability of an assistance animal in this case was entirely unsatisfactory.[200]
[200] Refer Respondent’s Closing Submissions at [28].
At the hearing, the Tribunal heard extensive evidence from Ms McAlister and Ms Denny about Smart Pups’ assessment of a prospective client and whether they would be eligible to receive an assistance animal. It is correct that no face-to-face assessment with the prospective client, their family and the proposed handler of the dog, or the home environment, is undertaken prior to the organisation receiving a $20,000 donation from a prospective client and placing them on the Smart Pups wait list. The concerns raised by the Respondent about this are justifiable and the Tribunal agrees that Smart Pups vetting process is inadequate, in circumstances where the organisation specifies that the $20,000 donation is non-refundable. Smart Pups are based interstate from the home of CYHY. This, and the restrictions in place due to the Covid pandemic, means that it is not feasible for face-to-face assessments to be made prior to receipt of the $20,000. Further, Ms McAlister gave evidence that they receive a large number of applications and that to do a face-to-face assessment for each before receiving the donation would not be achievable.[201]
[201] Refer Transcript p.245.
Be that as it may, and by way of observation, the Tribunal considers that there is no good reason why Smart Pups is not able to undertake a video conference with an NDIS participant to examine, by sight, the child, their family, and the home environment to properly assess whether a match between the child and an assistance animal is likely to be a success. Both in terms of the benefits to the child, and in terms of the welfare of the dog. It would be of no use to discover that the child’s characteristics, family dynamic and the general environment are not conducive to achieving a successful match after the non-refundable deposit of $20,000 has been paid by the NDIS to Smart Pups under its current T&Cs.
Ms McAlister and Ms Denny gave evidence that there was one instance where they had provided a refund of the donation. The fact remains though, that the SP T&Cs specify that the donation is non-refundable. So if the match is unsuccessful, there is no legal obligation upon Smart Pups to return those funds to the NDIS.
The Tribunal notes the experience at Smart Pups supports a finding that the likelihood of a successful match not being made is low or remote. Dr Seksel stated in her report that the rate of failure of an autism assistance dog was between 30% and 50% relying upon a study carried out in the US – see paragraph [158] of these Reasons for Decision. This was at odds with the experience of Smart Pups.
Irrespective of the rate of success, the Tribunal considers that funding should only be provided for this support under a publicly funded scheme, such as the NDIS, on condition that the service provider, in this case Smart Pups, commits in writing to provide a full refund of the $20,000 donation, if the match or matches are unsuccessful. The Tribunal does not consider that the fact that SP T&Cs stipulate that the donation is non-refundable, taken alone, is a sufficient reason to decline the provision of this requested support to CYHY, because the Tribunal can address this by stipulating a condition to the funding of this support as a basis upon which the approval is given.
One of the strongest points made by the Respondent was its contention that there was no BSP in place for CYHY, which Ms Ploszaj had recommended as being “best practice”; and that while CYHY was seeing a range of medical and allied health professionals, there had not been a coordinated approach to the overall management of CYHY’s treatments. The Respondent pointed to an absence of evidence as to what therapies, if any, had been implemented on a regular or consistent basis and that there was a lack of direction in his treatment going forward.[202]
[202] Refer Respondent’s Closing Submissions at [29].
For the reasons referred to in paragraphs [98] to [100] of these Reasons for Decision, the Tribunal rejects the Respondent’s contention. The Tribunal acknowledges that the overall management and coordination of CYHY’s multidisciplinary supports under his NDIS plan, have not been optimal, as mentioned above. Strategies have been employed in the past but not in any integrated or organised manner. When Mr Nolan was asked at the hearing to specify the strategies that had been effective, he was unable to recall – see paragraph [56] of these Reasons for Decision. It was apparent that Mr Nolan adopted an informal approach to the treatment of CYHY and that he had not received positive behaviour support training for quite some time – see paragraph [59] and [62] of these Reasons for Decision.
The Tribunal was unable to gauge where CYHY’s occupational therapy was at because his current OT was not called to give evidence at the hearing. But this does not mean that CYHY has not received therapies on a regular or consistent basis. The Tribunal is satisfied that he has. He has received regular and consistent ongoing support from his paediatrician, psychologist, OT and speech pathologist. Mr Nolan gave evidence that CYHY’s mother had been diligent in exploring a whole range of different things for CYHY.[203]
[203] Refer to [61] of these Reasons for Decision.
The Tribunal accepts this evidence, even though the trialling and implementation of different strategies seemed to have been approached by CYHY’s mother and the therapists treating CYHY in a haphazard manner. For one thing, CYHY has trialled the use of assistive equipment to address his sensory issues according to his mother’s evidence at the hearing. The Tribunal is not satisfied that the solution to addressing CYHY’s self-regulatory issues necessarily lies with the implementation of a BSP to assist in integrating and coordination his multidisciplinary supports to support CYHY to reduce his anxiety and self-regulation. A BSP will most certainly assist, and the Tribunal accepts that it represents “best practice” for a person with CYHY’s needs. But, the provision of an assistance animal, likely to be placed 24 months from now, as an integral part of a BSP to be implemented and developed for CYHY, is likely to give CYHY every possible chance to minimise the impacts of his impairments. In Ms Koniw’s Report, she recognised that if a BSP were to be created for CYHY, the assistance animal would “form a huge part of this” – see paragraph [66] of these Reasons for Decision.

The Respondent raised a specific concern about the need for an assistance animal to have clearly identified rest periods. The Tribunal does not share this concern. The evidence of CYHY’s mother was that an assistance dog would not be attending school with CYHY. This would provide significant opportunities for the dog to rest during school hours in addition to when the dog sleeps at night. On weekends and on school holidays, the dog could be left at home to rest sometimes, if it seemed that the dog was tired. Ms McAlister and Ms Hazel spoke about the benefits of using of a dog crate exclusively for the dog to enter as and when the dog needed to have a rest during the day. CYHY’s mother gave evidence that CYHY would usually go to bed at 6.30pm and slept through to about 7am.[204] This would provide a significant rest period for the dog overnight. Further, as part of the post-placement service provided by Smart Pups, experienced trainers would undertake intense initial monitoring in CYHY’s home, enabling Smart Pups to identify and address any issue that the dog has not received sufficient rest, and what might be done to remedy that issue.
[204] Refer Transcript p.76.
The Respondent also raised a concern about there being a lack of specificity about the tasks the assistance animal would perform in the information provided by Smart Pups. Again, the Tribunal does not agree that there is a lack of specificity about the tasks an assistance dog would perform. The Tribunal is satisfied an assistance dog is likely to produce the desired outcome of reducing CYHY’s anxiety and to minimise his behaviours of concern by being able to perform the trained behaviours of “nuzzle”, “lap” and “over”, having a high degree of tolerance upon exposure to a child exhibiting anxiety and behaviours of concern, and given CYHY’s demonstrated keen interest in and love of animals.
The Respondent remains concerned about the welfare of an assistance dog, referring to Dr Seksel’s evidence that even though a child does not exhibit certain violent and aggressive tendencies, a risk still exists.[205] The Tribunal considers that regardless of the individual characteristics of the child involved, there is always a risk of harm, both to the dog and the child, when a dog and a child interact. Dr Seksel spoke of the critical importance of always having an adult present, as referred to in paragraphs [117] and [136].
[205] Refer Respondent’s Closing Submissions at [30].
Smart Pups imposes a requirement that a handler be always present to monitor the interaction between the child and the assistance dog. The dogs are specifically trained to have a higher level of tolerance than an untrained pet dog might otherwise have, to manifestations of the child’s anxiety and behaviours arising from ASD. There was no evidence before the Tribunal that raised doubt that the pre-placement training of a Smart Pups assistance dog was deficient. To the contrary, the Tribunal accepts Dr Hazel’s opinion that the trainers appeared to be well-qualified and Smart Pups had been successful in placing their dogs – see paragraph [114] of these Reasons for Decision.
The Tribunal is also cognisant that there was no evidence before it that CYHY had ever tried to harm an animal. Instead, he reportedly loves and has a strong interest in them. The evidence before the Tribunal also showed that substantial post-placement monitoring takes place by Smart Pups; and Smart Pups also retains ownership of the assistance dog three years post-placement, providing an opportunity for any issues to be identified by the organisation and acted upon – see paragraphs [115], [117] and [169] to [171] of these Reasons for Decision. For all those reasons, the Tribunal is satisfied that any risk to the welfare of the assistance dog was minimal and appropriately able to be managed through the initiatives mentioned in this paragraph.
The cost of the provision of this support requires a donation of $20,000. The Tribunal is satisfied that this support is likely to benefit to CYHY in several different ways, as referred to in paragraphs [213], [239], [243], [244], and [269] of these Reasons for Decision. The Tribunal considers that the provision of an assistance dog should form part of a suite of different therapeutic supports for CYHY to be managed under a BSP. The wait time of 24 months for an assistance dog from Smart Pups would provide ample opportunity for a BSP to be implemented for CYHY.
The Tribunal considers that no other alternative supports able to produce the same outcome as an assistance dog have been identified, such as to lead to a conclusion the provision of funding for the provision of an assistance dog was not value for money. The Tribunal considers that the provision of an assistance dog is value for money in CYHY’s case and, given his keen interest in animals, may well end up being the best form of support for him to assist with his anxiety and behaviours of concern. Ms Hunter, representative of a competitor of Smart Pups that is based in Victoria gave evidence that her organisation calls for a donation of $25,000, being $5,000 more than the donation required by Smart Pups. The Tribunal finds that Smart Pups’ fees are both reasonable and competitive, if this organisation agrees to a condition that it will refund the $20,000 if a successful match is unable to be achieved between CYHY and an assistance dog.
The Tribunal is satisfied that the criterion under s 34(1)(c) of the NDIS Act is met with respect to the provision of an assistance dog to CYHY.
Criterion under s 34(1)(d) – the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice
In relation to this requirement, r 3.2 of the Supports for Participants Rules provide as follows:
3.2In 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 or 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.
3.3In 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.
Many issues relating to the question of whether the support comprising the provision of an assistance dog would be, or is likely to be, effective and beneficial have already been addressed by the Tribunal above in the process of considering whether ss 34(1)(a) and (b) have been met.
The Respondent did not specifically address r 3.2(c), being whether it has learnt anything through the delivery of the NDIS. In terms of r 3.2(a), relating to published literature, the Respondent contends that there is not yet a body of evidence-based research and peer-reviewed evidence demonstrating the benefits of an assistance animal to a child with ASD. The Respondent acknowledges that Dr Seksel and Dr Hazel had accepted, following a review of the literature, that there was anecdotal material examining the potential efficacy of assistance animals in certain situations, while acknowledging that there may be some position bias to reporting when a match has been unsuccessful; and it was more likely that studies showing a positive result of using assistance animals would be reported than studies which showed the failure of or lack of benefits in the provision of this type of support. Dr Seksel said that an assistance dog might benefit CYHY, but she did not know, as she said she could not predict the future – see paragraph [156] of these Reasons for Decision. Dr Hazel was more definitive in her evidence, indicating that she considered that an assistance dog would be beneficial for CYHY and help to facilitate other therapeutic interventions.
The literature referred to by the parties in this proceeding points to a definite trend of assistance dogs having assisted a person or child with ASD in most cases. In the context of a child participant who has a keen interest in and love for animals (being a matter to be considered under r 3.2(b) of the Support for Participants Rules), the results of the studies undertaken as referred to in the literature, forms a basis upon which the Tribunal finds, on the balance of probabilities, that an assistance dog is likely to be effective and beneficial for CYHY despite the relatively small sample size and lack of control groups or peer reviews. Those studies and the evidence of Ms McAlister, Ms Denny and Ms Hunter, reveal that assistance animals are regularly employed to assist children with ASD, both privately or under the NDIS; and for that reason, it can be considered to be a strategy within the realms of “current good practice” for use by a child with ASD.
The Tribunal is satisfied that the criterion under s 34(1)(d) of the NDIS Act is met in this case.
Criterion under s 34(1)(e) – the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to provide
The Respondent contends that the benefits CYHY seeks from the provision of an assistance animal might equally be provided by a companion animal or family pet, and that a family pet falls squarely within what is contemplated by s 34(1)(e) of the NDIS Act.[206]
[206] Refer Respondent’s SFIC at [98].
The Applicant submits that this contention is misplaced for the following reasons:[207]
(a)an assistance dog, unlike a pet dog, has public access rights and that public places, which are the greatest source of CYHY’s emotional dysregulation, are typically off-limits to a pet dog;
(b)an assistance dog, unlike a pet dog, would be professionally trained and a pet dog may not be able to provide the same benefits as an assistance dog for this reason, as supported by the evidence of Dr Hazel and Ms Koniw; and
(c)Dr Hazel gave evidence of there being a high risk of a pet dog suffering anxiety if placed in a house with a child with ASD, and of the dog not coping. Dr Hazel said a pet dog was not equipped to work as effectively with a child as a dog which has been specifically trained for the purpose.
[207] Refer Applicant’s Closing Submissions at [23] to [27].
The Tribunal has considered r 3.4 of the Supports for Participants Rules, which for brevity it will not recite here in these Reasons for Decision.
The Tribunal agrees with the Applicant’s contention and finds that the likelihood of an assistance dog, as compared to a pet dog, being able to assist CYHY to reduce his anxieties and to minimise his behaviours of concern, is much greater due to the extensive period of professional training delivered to the puppy as he or she is raised, to ensure that the dog is able to perform the behaviours of “nuzzle”, “lap” and “over”, and to ensure that the dog is desensitised or can tolerate living with a child with ASD and not suffer unmanageable anxiety as a consequence.
The Tribunal concludes that it is not reasonable to expect CYHY’s mother to provide a pet dog for CYHY as a substitute to him having access to a professionally trained assistance dog.
The Tribunal is satisfied that the criterion under s 34(1)(e) is met in CYHY’s case.
Criterion under s 34(1)(f) – the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through another system or service as described in this provision
The Respondent does not contend that “this application is precluded by s 34(1)(f)”.[208]
[208] Refer to Respondent’s SFIC at [99].
The Tribunal has considered r 3.5, r 3.6 and r 3.7 of the Supports for Participants Rules.
There is no evidence before the Tribunal to support a finding that the provision of an assistance dog to CYHY would be 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
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination based on disability.
For this reason, the Tribunal concludes that s 34(1)(f) of the NDIS Act has been met in CYHY’s case.
Whether Rule 5.1(a) applies
Rule 5.1(a) of the Supports for Participants Rules provides that a support will not be provided or funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others.
The Respondent contends that the provision of an assistance dog to CYHY may potentially harm him and the assistance dog. The Respondent relies upon the concerns raised by Dr Seksel about the welfare of the assistance animal and of potential risks to CYHY that could flow from his interactions with the assistance animal. The Respondent contends that the provision of an assistance animal to CYHY would be precluded under r 5.1(a).[209]
[209] Ibid at [100] and [101].
The Tribunal has considered and addressed these issues in paragraphs [262] of these Reasons for Decision. It does not consider that the evidence supports a finding that the provision of an assistance dog to CYHY is likely to cause harm either to him and/or to the assistance dog for the reasons embedded in those paragraphs. Under cross-examination, when taken to the CYHY’s statement of lived experience, Dr Seksel agreed there was no suggestion that CYHY had been aggressive to any animal; and she was not confident that he had the potential to do so – see paragraph [155] of these Reasons for Decision.
The Tribunal concludes that r 5.1(a) would not preclude the provision of an assistance dog to CYHY in the circumstances of this case.
CONCLUSION
The Tribunal concludes that the provision of an assistance dog to CYHY by Smart Pups for a donation of $20,000 (upon condition that if the match(es) between the dog(s) and CYHY is not successful, the $20,000 donation will be refunded by Smart Pups to the NDIA), is a reasonable and necessary support to be funded under CYHY’s statement of participant supports. The Tribunal concludes that this support meets all the mandatory criteria under s 34(1) of the NDIS Act and is not precluded by r 5.1(a) of the Supports for Participant Rules from being provided and funded under the NDIS.
Accordingly, The Tribunal sets aside the Decision Under Review and remits this matter to the Respondent for reconsideration with a Direction that a delegate of the CEO of the Respondent approves a new statement of participant supports for CYHY, which includes:
(a)Replication of all existing supports as set out in CYHY’s current statement of participant supports, on a pro rata basis; and
(b)An additional support comprising the provision and funding for an assistance dog to CYHY by Smart Pups for a donation of $20,000 (upon condition that if the match(es) between the dog(s) and CYHY is not successful, the $20,000 donation will be refunded by Smart Pups to the Respondent).
I certify that the preceding two hundred and eighty-six (286) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker.
………[SGD]………………
Associate
Dated: 20 December 2021
Date of the hearing:  23 & 24 February 2021, 16 March 2021
Date of final closing submissions:     17 May 2021
Counsel for the Applicant:                 Mr John Gurr
Solicitors for the Applicant:                Villamanta Disability Rights Legal Service Inc
Counsel for the Respondent:            Ms Julia Lucas
Solicitors for the Respondent:           HWL Ebsworth Lawyers

[2021] AATA 4751

20 December 2021

Key Legal Topics

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Administrative Law

Statutory Interpretation

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Expert Evidence

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