DKQG and National Disability Insurance Agency (NDIS)
[2025] ARTA 1117
•25 July 2025
DKQG and National Disability Insurance Agency (NDIS) [2025] ARTA 1117 (25 July 2025)
Applicant/s: DKQG
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/6929
Tribunal:General Member D Heron
Place:Brisbane
Date:25 July 2025
Decision:The Tribunal pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Respondent for reconsideration with a direction that:
a)Within 14 days of this decision, DKQG’s statement of participant supports includes as reasonable and necessary:
·14 hours a week for early intervention therapy delivered by a Therapy Assistant Level 2 for 50 weeks of the year; and
·1 hour a week for behaviour consultation, 50 weeks per year;
b)157 hours of speech therapy per year;
c)57 hours of occupational therapy per year;
................[SGD] ................
General Member D Heron
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – autism – ABA therapy – current good practice – value for money – section 34(1)(c) National Disability Insurance Scheme Act 2013 (Cth) – section 34(1)(d) National Disability Insurance Scheme Act 2013 (Cth).
Legislation
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)
Secondary Materials
NDIS – Operational Guidelines – Reasonable and necessary supports
NDIS – Operational Guidelines – Early childhood approach
National Guidelines for Best Practice in Early Childhood Intervention Early Years Learning Framework - Developmental MilestonesStatement of Reasons
BACKGROUND
DKQG (the Applicant) is four and a half years old and met access to the National Disability Insurance Scheme (the NDIS) through the early intervention pathway under significant and permanent sensory and cognitive impairments arising from his diagnoses of Global Development Delay (GDD) and Autism Level 3.
DKQG, via his parents, seeks an external review of a decision of the National Disability Insurance Agency (the Respondent) regarding reasonable and necessary supports to be funded by the scheme.
On 30 April 2024 DKQG’s statement of participant supports (SOPS) was approved by a delegate of the Chief Executive Officer (CEO) of the Respondent, covering a 12-month period. On 15 August 2024 DKQG sought a review of the funded supports in the plan.
On 4 September 2024 a delegate of the CEO made a decision to vary the original decision (Internal Review Decision).[1] The varied plan included funding for core supports of 10 hours per week, along with an increase in capacity building funding.
[1] Joint Tender Bundle (JTB), T1, Application for AAT Review, dated 6 July 2023 page 6.
On 11 September 2024 DKQG’s parents filed an application for review in the Administrative Appeals Tribunal (the AAT).
At the hearing held on 28, 29, 30 May 2025 via Microsoft Teams, DKQG was represented by Mr J Patela of Counsel, instructed by Ms A Cox of Special Voices. The Respondent was represented by Ms A Douglas-Baker of Counsel, instructed by Ms J Thomson of Moray & Agnew.
The Joint Tender Bundle (the JTB) was tendered and admitted into evidence along with the 26 May 2025 report of Dr Sivabalan marked A1, and 3 videos of DKQG marked A2.
Given the amount of written material tendered in this matter, I will refer to the evidence that is directly relevant to my determination of the matter.
RECENT TRIBUNAL AND NDIS ACT AMENDMENTS
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Also of note is that the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Back on Track Act) commenced on 3 October 2024 and made significant amendments to the National Disability Insurance Scheme Act 2013 (NDIS Act). The amendments pursuant to section 34 of the NDIS Act will apply to this review.[2]
[2] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth) s 129.
ISSUES
DKQG’s parents seek an increase in capacity building funding for DKQG to continue his attendance at the Autism Partnerships Little Learners Program. The 3 specific supports are listed below.
1.Little Learners program (LL) comprising of:[3]
[3] JTB, A22, 3 December 2024, 1020.
· 1:1 behaviour therapy 21 hours/week for 50 weeks of the year; $91,129.50
· Small group therapy 6 hours per week for 50 weeks of the year; $13,020
· Behaviour consultation 3.5 hours per week for 50 weeks of the year $33,948.25
· Behaviour consultant travel 1 hour per month or 12 hours per year $2,327.88
· Behaviour consultant team of 3 meetings 1.5 hours per fortnight (4.5 consultant hours); $9,763.88
· Non face to face support, part of delivering supports above to occur before and after each day of the program (4 days per week); $17,358
· Psychologist Standardised Assessments 8.5 hours per year; $1,895.42
· NDIS progress report 3 hours per year; $1,163.94
2.Speech therapy – 2 hours per week and 1 hour per week of travel time for 48 weeks of the year, plus 3 hours’ report writing and 6 hours per year for therapist team meetings (total of 153 hours per year); $29,680.47
3.Occupational therapy – 1 hour per week for 48 weeks of the year plus 3 hours’ report writing and 6 hours per year of therapist team meetings (total of 57 hours per year) $11,057.43
The Respondent contends that the supports are not ‘reasonable and necessary’ for the purposes of s34(1)(c), (d) and (e) of the NDIS Act. The Respondent’s position is that the Tribunal should affirm the current SOPS as the correct and preferable decision.
ROLE OF THE TRIBUNAL
The role of the Tribunal is to make the correct or preferable decision based on the material before it.[4] In reviewing the decision:
(i)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it[5] and
(ii)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[6]
[4] Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 37.
[5] Esber v The Commonwealth (1992) 174 CLR 430, 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250, 51.
[6] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189, 7.
The relevant provisions under the Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
THE LEGAL FRAMEWORK
National Disability Insurance Scheme Act 2013 (Cth)
The objects of the NDIS Act are set out in section 3. As well as giving effect to Australia's obligations under the UN Convention on the Rights of Persons with Disabilities, they include:
·supporting the independence and social and economic participation of people with disability;
·providing reasonable and necessary supports for participants; and
·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.[7]
[7] National Disability Insurance Scheme Act2013 (Cth), ss 3(1)(c), (d) and (e).
I also note the following aspects of the statutory regime. Section 34 of the NDIS Act identifies what establishes a ‘reasonable and necessary’ support under the scheme. Section 34 of the NDIS Act states as follows:
Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
The relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules). Rules 3.1 to 3.5 of the Support Rules relate specifically to subsections 34(1)(c) - (e) of the NDIS Act and state:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
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 and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3In 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.
Reasonable family, carer and other support
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
…
(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Supports appropriately funded or provided through the NDIS
3.5Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).
Part 5 of the Support Rules sets out the general criteria for supports:
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Schedule 1 of the Support Rules outlines supports appropriately funded, as referenced in Rule 3.5, as follows :
Early childhood development
7.8The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
7.9The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:
(a)specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and
(b)likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.
7.10The NDIS will not be responsible for:
(a)meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings; or
(b)supports, which are clinical in nature provided in the health system, including acute, ambulatory or continuing care; or
(c)new-born follow-up provided in the health system, including child and maternal health services.
A further consideration is section 5(f) of the NDIS Act which contains the general principle guiding the actions of people who may do acts or things on behalf of others under the scheme. It provides as follows:
...
(f) if the person with disability is a child--the best interests of the child are paramount, and full consideration should be given to the need to:
(i) protect the child from harm; and
(ii) promote the child's development; and
(iii) strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child.
It is important that I consider the purposes and objects of the NDIS Act in conformity with section 34(1) and the Support Rules noting that if one of the requirements in ss 34(1)(aa)-(f) is not satisfied, the support will not be funded under the NDIS.
OPERATIONAL GUIDELINES
The NDIS has Operational Guidelines in relation to ‘reasonable and necessary supports’ in a participant’s plan. While the Tribunal is not bound by any policy set out in the Agency’s Operational Guidelines in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[8] the Federal Court held that a Tribunal should consider relevant government policy which is not inconsistent with the provisions or objects of the legislation.
[8] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.
The Guidelines relevant to this review are the NDIS Reasonable and necessary supports and Early Childhood Approach. The Early Childhood Approach NDIS Guidelines relevantly state:
Best practice not only considers broad early childhood intervention research, but also evidence relating to the needs of children with a specific diagnosis, such as autism spectrum disorder or cerebral palsy.[9]
[9] NDIS Guidelines, Early childhood approach.
THE CURRENT PLAN
The Respondent explained that the current plan has been rolled over from the previous year. Therefore, I will outline the funding in the plan dated 30 April 2024 – 30 April 2025 before me, noting it is identical. The total funding for the plan period is $113,524.25 broken down as follows:
Core
Consumables
$600
Assistance with Daily life
$27,470.40
Capacity Building
Capacity Building
$66,926.52
Behaviour Support
$13,527.36
Capital
Assistive Technology
$5,000
EVIDENCE
Applicant’s Position
In making my decision and pursuant to section 33(5)(a) of the NDIS Act I have considered DKQG’s current plan goals which are as follows:
·DKQG to fully express his wants and needs
·DKQG to develop his cognitive skills and begin to understand concepts
·DKQG to identify and respond to his emotions
·DKQG to form connections with his peers and participate in group settings
·DKQG independently participate in self-care tasks
·DKQG to be able to participate in fine and gross motor activities to promote his independence.[10]
[10] JTB, T1B, 35-37.
Respondent’s position
The Respondent contends that the requested support hours are not ‘reasonable and necessary’ for the purposes of s34(1)(c), (d) and (e) of the NDIS Act. In the Outcome of Review letter dated 4 September 2024 the Respondent writes:
The NDIA does not approve funding based on specific ‘programs’ or ‘quotes’ but rather, considers the evidence that an intensive level of capacity building supports is required. The NDIS plan includes the level and type of reasonable and necessary supports required to support the family to pursue their child’s goals and it is up to the family to engage with a suitable provider(s) and deliver best practice early intervention.
When considering evidence for an intensive level of capacity building early childhood supports…it is important to note that the NDIA’s funding decisions are based on what is deemed reasonable and necessary…This means that is some cases, the level of funding may not fully align with the intensity or cost structure proposed by specific ‘programs’, ‘providers’ or a family’s preferred model of service.[11]
[11] JTB, T2, 53-54.
THE EVIDENCE
DKQG’s mother and father both gave oral evidence at the hearing and called the following witnesses to give evidence and be cross-examined:
· Ms I Sharma, daycare educator
· Ms R Hofmann, occupational therapist
· Professor T Frazier, academic
· Ms C Lee, speech pathologist
· Ms A Mitchell, behaviour consultant
· Dr S Sivabalan, treating paediatrician
· Ms L Baldwin, APA State clinical director Autism Partnerships
· Ms D Verstappen, board certified behaviour analyst
· Ms B Hagan, behaviour support practitioner
· Ms K McKinnon, National clinical director of Autism Partnerships and psychologist
The Respondent called the following witnesses who gave oral evidence at the hearing, and were also cross-examined:
· Dr D Pincus, paediatrician
· Professor M Sandbank, academic
Evidence of DKQG’s Parents
DKQG’s parents gave evidence during the first day of the hearing and their oral evidence can be summarised as follows:
·Began to notice DKQG experiencing a regression around 18 months of age.
·DKQG was formally diagnosed with GDD at 22 months old and Autism level 3 at three years old.
·DKQG is non-verbal, does not have an effective method of communication, engages in behaviours of concern with disrobing, screaming, absconding and self-injurious hitting and biting.
·He engages in faecal smearing behaviours along with scab picking.
·He is not toilet trained and requires full assistance in every aspect of his life.
·His sleep cycle is dysregulated, typically waking between 1am - 3am, disruptive to the sleep schedule of the entire family unit.
·DKQG refuses to eat most foods.
·DKQG began speech therapy at a local provider in May 2023, no progress was observed by parents.
·Started speech pathology sessions with Ms Lee in December 2023, on an inconsistent basis due to commute.
·Met with Ms Baldwin at LL in March 2024 for an intake session. Ms Baldwin recommended LL for DKQG.
·Family moved from their regional town in around May 2024 to live in backyard of DKQG’s grandparents’ home in the city, to better support DKQG’s needs.
·DKQG began at LL on 7 July 2024.
·DKQG suffered overlapping illnesses in October – November 2024, parents started noticing an extreme increase in self-injurious behaviours at this time.
·NDIS funding was depleted by November 2024, DKQG was withdrawn from LL on 25 November 2024.
·During period from end November 2024 – March 2025 DKQG only had NDIS funding for a few behaviour consultation sessions undertaken in-home.
·Parents observed a regression in DKQG during his absence from LL.
·DKQG’s parents paid privately to send him back to LL, rejoining in March 2025.
·He currently attends LL 4 days a week, three days in-clinic at LL, one day in his mainstream childcare with his LL behaviour therapist present.
·On the weekday he doesn’t attend LL, he attends his mainstream childcare.
·Parents are in the process of seeking an exemption from formal schooling in 2026, with the plan to start his schooling in 2027.
DKQG’s parents also provided a statement of lived experience dated 20 March 2025. In their statement DKQG’s parents write that:
He is non-verbal, cannot express his wants and needs and can barely understand what we say to him. He cannot call out mummy and daddy so we can go to him, he can’t tell us what hurts or irritates him, he cannot call out for help…This has become extremely frustrating for him, causing him distress, mood swings, tantrums and meltdowns that can have a snowball effect…needs assistance in every aspect of his life, from feeding, toileting, putting clothes on, showering, going to sleep, brushing his teeth, putting shoes on. On top of this he makes basic activities difficult. He will refuse to eat many foods, spits his food and smears in on the floor and furniture. He will bite his toothbrush and won’t let us brush his teeth properly…he fights and runs away when we attempt to dress him. Every nappy change is a struggle. He will lie down on the shower floor and will lick water off the shower floor, near impossible to give him medicine and the list goes on.
We never know what we are going to get in a day with DKQG, and in turn there are days that I suffer from severe anxiety always anticipating the worst. On DKQG’s worst days, our family is thrust into a whirlwind of chaos that tests our endurance. The physical aggression that accompanies DKQG’s bad days is perhaps the most heartbreaking aspect of his condition, leaving us grappling with the aftermath of his biting, hitting and hair pulling outbursts…please help my son, and in turn me and my family by allowing him to get access to the therapies he so desperately needs.[12]
Applicant’s typical weekly routine
·DKQG spends 5 days a week outside of the family home – 3 days at LL (9.15am – 4pm) and 2 days at a local daycare (9.30am-4pm).
·One day a week at the mainstream daycare, his LL behaviour therapist attends to work with him and his educators in this setting.
·He receives 1 hour OT on Monday.
·He receives 1 hour speech therapy with Ms Lee on Friday.
·He spends all other times with his parents and siblings.
[12] JTB, T13, 112-113.
Ms Sharma – Educator
Ms Sharma gave oral evidence on the first day of hearing. She is DKQG’s educator in his current mainstream daycare. Her oral evidence can be summarised as follows:
·The daycare receives inclusion support funding for an extra educator on the two days DKQG attends.
·This funding is provided by the State Government inclusion services program.
·Daycare room is usually a ratio of 1:10, this means the ratio becomes 2:10 when DKQG attends.
·Since April 2025 his LL behaviour therapist attends daycare one day a week with him, on those days observe there is less risk of his self-harming.
·His LL therapist gives educators strategies to try and use, to engage DKQG and to assist him.
·Gave an example where educators used LL strategy with the whiteboard, observed that using this DKQG was able to wait in his chair for 10 minutes which is really good for him.
·DKQG is just starting to begin to learn toilet training.
·In the last few weeks have observed an increase in DKQG’s skills where, he undertook a small 6 piece puzzle without an educator or prompting.
·Difficult to know what triggers DKQG, he engages in self-harming behaviour where he hits himself on the face a lot.
·DKQG will also strip his clothes, though this has reduced recently compared with the beginning of the year.
·LL behaviour therapist gave advice around times when DKQG is hitting himself, other activities to try for redirection, and how to engage with him successfully during these times.
·Educators have tried these strategies and DKQG does respond to these suggestions, it has been beneficial having the LL therapist attending daycare.
Ms Sharma also provided a written statement dated 5 February 2025. Her statement outlines as follows:
·She holds deep concern for DKQG’s aggressive self-injurious behaviours.
·DKQG frequently removes his clothing and climbs onto furniture.
·Challenging for DKQG to engage meaningfully in learning activities with the group.
·Observes his continual struggle with self-regulation and no ability to actively engage in activities.
·He cannot feed himself, sometimes completely refusing to eat.
·Urgent need for more therapy hours to develop essential coping strategies.
She states that DKQG has been:
Exhibiting self-injurious behaviours, such as hitting himself aggressively, which not only pose a risk to his own health but also indicate a need for more specialised intervention. Additionally, he sometimes exhibits aggressive behaviours towards educators and peers, which can disrupt the learning environment and create safety concerns for those around him.[13]
[13] JTB,A28, 1132.
Ms D Verstappen – Report 8 November 2024
Ms Verstappen, a Board-certified behaviour analyst, was called by the Applicant on the second day of the hearing to give oral evidence. She undertook an initial assessment of DKQG on 8 November 2024, at this time she was working at Aspire Early Intervention. Aspire is an Early Intensive Behaviour Intervention program that follows the Early Start Denver Model. Her assessment report was also filed with the Tribunal.
Her oral evidence can be summarised as follows:
·Undertook an assessment on 8 November 2024 with Mum and DKQG for around 2 hours.
·Recommended parent training of around 12 weeks, with intensive therapy for DKQG either in-home, daycare or in the centre.
·Aspire runs a preschool program, however children need prerequisites to attend this pre-school. Generally, no self-injurious behaviour and no aggression toward others and have to be able to follow basic instruction.
·DKQG was not suitable for this program due to his self-injurious behaviours. Instead recommended he undertakes a 1:1 intensive model of 25 hours a week.
·Parent training runs for 12 weeks, Mum said that would be difficult for her to engage in.
·Recommended starting intensive services at the same time as the parent training, whereas usually undertake them one after another. DKQG’s behaviours were of such high concern intervention needed immediately alongside the parent training.
·Recommended 15 hours 1:1 from a behaviour technician, with 5 hours of oversight by behaviour support practitioner held either in-home, preschool or in our clinic and 5 hours of clinical oversight from an advanced behaviour support practitioner per week.
·Overall recommendation was 25 hours a week for 48 weeks at a total cost of $162,564.[14]
·This was recommended based on clinical assessment of DKQG, discussion with Mum and clinical judgement along with the research evidence showing 20 hours or more a week yields best long term outcomes.
·Parents are not interventionalists, then can generalise but they are not clinicians. DKQG requires trained clinicians to break skills down in order for him to be able to learn them.
[14] JTB, A19, 1003.
In her report dated 8 November 2024 Ms Verstappen notes that DKQG’s challenging behaviour poses significant risks such as:
·Physical harm: Challenging behaviour such as slapping, kicking, and propelling objects can cause physical harm to the child or others around them, including family members, peers, or teachers.
·Emotional and psychological harm: Challenging behaviour can also cause emotional and psychological harm to the child, such as feelings of frustration, anger, or sadness.
·Poor social skills: Challenging behaviour can impact a child's ability to interact appropriately with others and make friends, leading to poor social skills.
·Academic difficulties: If a child's challenging behaviour interferes with their ability to concentrate or learn, they may struggle academically.
·Developmental delays: If challenging behaviour is left unaddressed, it can lead to delays in the child's overall development, including cognitive, social, and emotional development.
·Risk of expulsion: If [DKQG’s] challenging behaviour persists or becomes more severe there is a very high risk for expulsion from pre-school, further limiting the necessary supports for their disability.
·Specifically, Pica carries a risk of choking and death.
·Absconding and squeezing/hiding in tight spaces carry significant risks such as suffocation or drowning. Children with these challenges are at high risk of misfortune and death if not managed carefully.
Ms R Hofmann – Occupational Therapist
Ms Hoffman, an occupational therapist was called by the Applicant on the third day of the hearing to give oral evidence. She undertook an initial assessment for DKQG in December 2024. Her oral evidence can be summarised as follows:
·During this assessment via telehealth DKQG was unable to follow any instruction, he appeared completely dysregulated, climbing, jumping on everything. Impossible to get him to focus even for 10 seconds.
·Parents explained they had seen a regression due to his absence from higher intensity early intervention.
·Recommended intensive intervention 6 hours a day for 5 days a week, due to DKQG’s daily living skills impairment.
·Neuroplasticity in early formative years means this is the best time for DKQG to acquire and learn new skills.
·Worldwide research shows the more intensive the intervention is in the formative years, the better the prognosis for the child.
Ms Hoffman clarified that the recommendation contained in her 23 December 2024 report for support worker assistance and other therapies, were alternatives should the recommended early intervention therapy hours not funded by the NDIS.
Ms B Hagan – Behaviour Support Practitioner
Ms Hagan a behavioural support practitioner was called by the Applicant on the third day of the hearing to give oral evidence. She undertook an Interim Behavioural Support Plan dated 7 February 2025 and also supplied a letter dated 14 February 2025. Her oral evidence can be summarised as follows:
·Initially DKQG was enrolled in the Aspire First Steps programme, which is a parent collaboration training program, he then he transitioned to undertaking the 1:1 support program.
·During these 1:1 support program sessions she observed multiple disrobing behaviours and self-injurious behaviours over the six sessions held with DKQG.
·Held five sessions with DKQG and Mum and one session with DKQG at his childcare.
·At his childcare DKQG was observed to be disrobed and not interacting with anyone.
·Recommended educators try some preventative strategies such as the use of a visual schedule: now, next, later.
·Recommended ongoing behavioural support with sessions of direct intervention, 90 hours of behaviour support and 90 hours of behavioural intervention. At first recommending in-clinic due to less distractions, then transferring to his natural environments. These hours include parent training.
·Purpose would be to increase independent communication, to be able to see his function and his toleration to work on tasks under the instruction of adults.
·Functional Communication Assessment is recommended for DKQG.
Ms C Lee – Speech Pathologist
Ms Lee, DKQG’s current speech pathologist was called to give oral evidence. Her progress report dated 4 May 2024 and her report dated 6 February 2025 are also before the Tribunal.
Her report recommends speech pathology at 5 hours a week along with 3 hours a year for NDIS progress reporting and a generalised recommendation for continued OT and behavioural therapy.
Her oral evidence can be summarised as follows:
·Have worked with DKQG on an inconsistent basis between December 2023 to April 2024. Became more consistent once the family moved to the city in May 2024.
·Observed DKQG doesn’t consistently play with toys functionally, the way that the toys are intended to be played with.
·Observed since he began at LL in July 2024, DKQG can engage more with ‘people games’ – being able to interact with one other person, not toys. When first started with DKQG, his ability to do this was limited.
·Has been able to get DKQG to verbalise the word ‘more’ – modelling key functional words. Using key word sign, the hand gesture for more plus the verbalisation sound.
·Working using intense repetition, usually of one thing in a session. DKQG is able first to approximate the word and then start to use it functionally. Outside the session parents also report DKQG has begun to use at home.
·Undertake frequent imitation in nursery rhymes. DKQG really enjoys the BINGO song and pointing to the letters.
·Has observed that DKQG started to regress in March and April 2025 sessions, noted that he had less spontaneous language, observed to be more quiet.
·March 2025 sessions observed he did not verbally imitate as much, attention was shorter than previous weeks and did not produce any words as he previously did.
·Made the distinction that this does lend itself to not maintaining the skills, rather than a regression.
·Over the majority of sessions has observed that DKQG becomes frustrated easily, often observing him hit his head or bite himself, typically takes him a while to calm down afterwards, no learning can occur during this time.
·DKQG being frustrated happens in frequently in 2025. Did not see this self-injurious behaviour to the same extent last year in 2024.
·Early May 2025 she noted DKQG had limited decreased joint attention, zero words independently produced or imitated. Second session in May DKQG’s joint attention did increase, played for a short time and was able to produce the word more three times and some names of body parts.
·Early session in June 2025 DKQG showed more engagement, focussed in on the BINGO game. AAC via iPad beginning to be used.
·Recommended DKQG have as many speech sessions as possible, 5 hours a week recommended equalling 20 hours a month. This is inclusive of parent training to incorporate into their daily routine and explaining key word signing.
·The February 2025 report makes the recommendation for communication partner training. DKQG could take part dependent on his behaviour and mood. This would include further training with parents and DKQG on using his Augmentative Alternative Communication (AAC).
Ms A Mitchell – Behaviour Consultant
Ms Mitchell is DKQG’s behaviour consultant at LL and she was called by the Applicant on the second day of the hearing to give her oral evidence. Her most recent written report was dated January 2025 and also supplied her report dated 12 November 2024. Her oral evidence can be summarised as follows:
·Has a Masters in Behaviour Analysis, a Bachelor degree in Psychology and was certified as a Behaviour Analyst in February 2023.
·First met DKQG in June 2024 at his in-home observation, he then commenced in July 2024 at LL and stayed in LL through to 21 November 2024. Started back at LL in March 2025 to current.
·Describes her role as DKQG’s behavioural consultant, as consisting of working with DKQG for an average of 3.5 hours spread throughout the week, overseeing the training with his staff, meeting with his family, looking at his data and his progression, working on his programs.
·Observed that since re-commencing March 2025 that DKQG has seemed very happy to re-join, noting how he ran and happily jumped into playing with the therapists, also blew them a kiss.
·When he re-joined in March 2025, notes there was an increase seen in his self-injurious behaviours and that his overall ability to tolerate most activities was lower. Therapists focussed on offering replacement skills, and have seen a reduction in frequency on self-injurious behaviours, though noting DKQG still displays these behaviours presently.
·In his program they are working on building up his skills again, example given of getting DKQG to pause playing with a highly preferred toy in order to follow an adult instruction.
·Notes that DKQG transitioning between activities by following an adult led instruction was a skill that they have noticed had regressed when he rejoined in March 2025.
·First started observing DKQG’s self-injurious behaviours at the end of November 2024, after he became ill with overlapping illnesses.
·In December 2024 undertook some home intervention work with the family, observed the self-injurious behaviours during this time.
·From April 2025 onwards his therapist from LL has been attending his daycare with him for a day a week. Purpose of this is to assist DKQG with generalising his skills and assist his daycare educators.
·Has observed DKQG at daycare not engaged with any toys, walking around by himself, climbing on furniture, undertaking self-injurious behaviours, disrobing.
·Observed DKQG running away other children, flinching when another child runs by him. Starting to build tolerances and have seen him be able to turn take and undertake puzzle pieces games with his peers.
·Has also observed a lovely moment where his cousin who also attends, was outside and came and guided DKQG to play in the sandpit.
·Observed headbanging, intensive slap of his own face when another child touched his toy. Observed DKQG walking around by himself in the yard engaging in less intense face slapping self-injurious behaviours, but still very regular.
·Since March 2025 LL have shared information with daycare staff around his goals and what LL are working on, skills that can be generalised to the daycare setting.
·LL shared with daycare the goals such as building a communication system, being able to follow teacher led instruction using teacher led visual schedule.
·There is the Inclusion Services support person at daycare, noting it is not a person specifically for DKQG.
·Need DKQG to be happy, relaxed and engaged to be able to learn and complete tasks.
·LL is assisting DKQG with his functional communication. DKQG has learnt to communicate via their buzzer method, this will in time cross-over to his form of communication. Learning to say the words no and help.
·Frequently meets with DKQG’s Mum, she specifically comes in once a fortnight for update meetings. Provided hands on training with Mum at the end of last year November 2024.
·Communication program using PECS has not been successful, AAC via iPad may be more successful.
·DKQG is learning prerequisites and contingency skills to be able to build up to learning the skill of responding to his name.
Ms L Baldwin – APA NSW Clinical Director
Ms Baldwin is the Autism Partnerships State Clinical Director and was called by the Applicant on the second day of the hearing to give oral evidence. Her oral evidence can be summarised as follows:
·Observes DKQG daily in the centre, he has settled back in and is always happy to be there.
·Observing an acceleration in his learning since he returned in March 2025, copying smiling, copying with musical instruments, you bang your drum, he bangs his drum. He can now copy facial movements; it is not salient.
·The self-injurious behaviour is still observed on a daily basis, could be out of frustration but could also out of sensory enjoyment. It is difficult to pinpoint the reasons.
·When he rejoined LL in March 2025 DKQG had to build up his skills again regarding oral motor imitation and re-establishing his ‘learning to learn’ skills.
·Proactive teaching of behaviour skills is not something expected from parents. It is too intensive, the amount of repetition they would need hours each day to sit just with DKQG is too great.
·Do not expect DKQG responding to his name to be a goal in his current curriculum. Future goal, as he doesn’t have the prerequisite skills yet. Aiming to first gain his attention in a more structured way and break things down into small parts for repetition.
Ms Baldwin was cross-examined about her report dated 20 January 2025 where certain skills for DKQG were noted as were not observed, no opportunity to practice. Ms Baldwin had written in the outcome section, that the skill had worsened. Ms Baldwin noted these skills were stated as worsened meaning they were not maintained.
The Respondent contended that it was not accurate to note a skill as worsened just because it was not observed. Ms Baldwin ultimately agreed that because the skill wasn’t observed doesn’t necessarily mean the skill wasn’t maintained.
In relation to DKQG mastering prerequisite abilities before being able to master a full skill, for example responding to his own name, Ms Baldwin described how skills needed to be broken down into small parts first building his tolerances and keeping his attention on one thing first explaining:
Ms Baldwin: So visuals to help support him through that process. So those things are what need to be in place currently for [DKQG] to be able to attend and engage in some of those learning activities….But we need to really build his attention first before we can teach responding to his name.
Respondent: And you don't think just getting him to turn and look in response to his name is a lesser skill than what you've described? Just literally turning his head in response to his name like a dog or a cat or a tiny baby with no developmental problem might start to do.You don't think that's an important foundational skill that should come before the structured?
Ms Baldwin: I do, But I know how [DKQG] learns and I know that we would not be able to teach that outside of that structure, so it'd be beautiful if we could. I agree. I would love to teach him that skill.Respondent; Are you suggesting if you asked his, if you spoke his name, he wouldn't turn and respond at all?
Ms Baldwin: You'd get no reaction. Sometimes you would. It's inconsistent, sometimes you would.[15]
[15] Transcript day two, Ms Hagan evidence 2:21:45 - 2.23.12.
Dr Pincus – Paediatrician
Dr Pincus was called by the Respondent as an independent expert witness and participated in an online assessment for around 1 hour with DKQG’s parents on 14 February 2025. Dr Pincus was provided with the documents filed in these proceedings along with the progress report prepared by Ms Mitchell dated 12 November 2024.
In his report he notes his qualifications as:
General Paediatrician on the Gold Coast and have worked in public and private practice for the past 30 years. I am also currently employed as the Medical Clinical Governance Adviser for Pindara Private Hospital and for John Flynn Private Hospital. I work as the National Medical Advisor to Ramsay Health Care Clinical Governance. I am appointed as a Clinical Adjunct Professor and sub- Dean at Bond University. My practice encompasses all aspects of general paediatrics, including children with complicated disorders requiring multidisciplinary management.[16]
[16] JTB, R6, 1620-1630.
Dr Pincus’ oral evidence can be summarised as follows:
·Reluctantly will support continuation of between 8-12 hours at LL a week plus 2 hours of speech therapy a week. He did not recommend either occupational therapy or behavioural therapy in his written evidence. He reluctantly agreed to 1 hour of occupational therapy in his oral testimony.
·Cognitive assessments before starting formal schooling are recommended.
·DKQG’s Autism is unpredictable, medical professionals don’t yet understand why following an autistic regression children can often pick up skills very quickly.
·Other complicating factor is DKQG having several forms of interventions, becomes particularly tricky to understand what therapy/intervention is responsible for any gains observed.
·Increasing maturation can have a bearing as development progresses, so can a child’s gains.
·Disagrees with Dr Sivabalan’s opinion that if DKQG therapy hours are halved, it will take twice as long to achieve his goals. States that increasing therapy hours will help to a certain point until plateau occurs. There is the propensity for side effects when increasing dosage.
·Consideration must be given to what else does DKQG need and deserve throughout the week. He deserves leisure time, time to be himself where he is not working on skills over 6 hours per weekday, and he deserves time with other kids and his family.
·Addressing the AP study,[17] he states this research does not provide a blinded study of children receiving ABA therapy vs children receiving none.
·Recommends communication should be the focus for DKQG, noting his view that this doesn’t mean verbal communication. DKQG should have a method/way to explain his needs and wants at almost 5 years old.
·Concerned that communication is not more of a main concern stating the development of words shouldn’t be prioritised now, focus on communication broadly through an AAC, iPad or picture exchange system.
·Concerns are that DKQG’s skills from LL aren’t being generalised in his daily life.
·He defines 8-12 hours a week as an intensive amount of therapy. Notes this view has changed over time, early on in the 1990’s the view of intensive therapy was considered around 25 hours.
·Concerned about OT in 2025, as states that DKQG is already getting a lot of therapy around his emotional regulation and daily living skills undertaken at LL, OT would be duplication.
·Reluctantly recommends continuation of LL via a weekly amount of between 8-12 hours. Unlikely to recommend LL if DKQG’s parents not already undertaking this therapy and insistent to continue with it.
[17] JTB, A15,962-978.
Dr Sivabalan – Paediatrician
Dr Sivabalan is DKQG’s paediatrician and has treated him since birth. He gave oral evidence as follows:
·DKQG is non-verbal with extremely limited eye-contact, doesn’t point or wave goodbye; does not display any signs of cooperative or interactive play.
·March 2023 Mum reports DKQG’s faecal smearing, recommendation given for ABA therapy intensive due to this sensory issue, family worried for his health, not a beneficial behaviour for him.
·August 2023 observed he rarely responded to his name, very difficult to engage with DKQG.
·By August 2024 Mum reports she feels LL is working well for DKQG.
·Reviewed DKQG in May 2025 and Mum reported he had regressed. Had received LL therapy reports and his occupational, speech therapists reports.
·May 2025 appointment was conducted via tele-health during LL. Observed DKQG use the purposeful word help in an appropriate context.
·Has reviewed Dr Pincus’ report and disagrees with 8-12 hour per week recommendation.
·If therapy hours are halved it will decrease DKQG’s gains, with improvements then taking double the amount of time.
·Parents reporting that DKQG is now able to be redirected from his self-harming behaviours, able to sit between 2-4 minutes, engages in less disrobing behaviours.
·States DKQG requires OT before starting formal schooling, recommends 1 hour per week, separate to his time at LL.
Dr Sivabalan has also provided the Tribunal with five reports, the most recent report dated 26 May 2025.
Ms K McKinnon – APA National Clinical Director, Psychologist
Ms McKinnon is the National Clinical Director at Autism Partnership. She was called to give oral evidence by the Applicant on the second day of the hearing. Her oral evidence can be summarised as follows:
·The January 2025 report shows evidence that DKQG hasn’t been able to maintain his skills therefore he needs more extensive therapy.
·Most common ages of children at LL is 3-4 years, with 70% of cohort at the centre enrolled in LL program.
·Outside of LL, AP does offer a bespoke program for children assessed as requiring between 5 to 25 hours, depending on their goals and learning setting preferences and needs.
·LL recommended for DKQG as he has very significant and profound needs in multiple domains.
·DKQG’s significant delays in communication, play, self-care along with behavioural concerns is the reason for higher intensities of support. Needs the intensive repetition of daily life skills on the weekly basis.
·LL recommended for DKQG because of the nature of his profound presentation on initial assessment and his areas of need. Discussed parental preference: what have they tried done before, what are they seeking.
·When children first start at LL there is a lag, they can often undertake their skills at LL first and it’s a few months before those skills are observed at home. This is just the nature of Autism.
·Begin with a structured approach in-clinic where there are less distractions, then open that up to generalisation in different natural environments.
·LL undertake standardised testing every 12 months to assess baseline.
·Also collect data regarding parental observations, qualitative descriptors and observational descriptors.
Academic Witnesses
Professor Frazier
Dr Frazier was called by the Applicant to give oral evidence at the second day of the hearing. Dr Frazier is a Professor of Psychology at John Carroll University in Ohio, United States. I note in giving his evidence he provides no opinion on DKQG, all his opinions expressed are regarding analyses of the research literature about ABA and its effectiveness.
Dr Frazier’s most recent findings are published in May 2025 in the Clinical Psychology Review Journal in a report he co-authored titled Characterising predictors of response to behavioural interventions for children with autism spectrum disorder and meta analytic approach.[18]
[18] JTB, A16, Characterising predictors of response to behavioural interventions for children with autism spectrum disorder and meta analytic approach Frazier et al, dated 30 May 2025, p76-88.
In this report he found that there was a relationship between the hours of therapy undertaken and the outcome, with the higher dosage or intensity being related to better outcomes.
In his opinion, the risk with any reduction in therapy hours, is a loss in momentum for progress. He states that broadly children with autism level 3 need more 1:1 intervention due to significant challenges with their attention they require stimulus control relating to their environment to limit distraction.
Dr Frazier was asked to comment on Dr Sandbank’s 2024 research, where he made three distinctions:
· Selective sampling was used as did not account for IQ in the modelling;
· When IQ is used, the intensity of intervention matters, higher intensity better the outcome; and
· The analysis is underpowered as it didn’t study across early intervention types.
Associate Professor Sandbank
Dr Sandbank was called by the Respondent to give oral evidence at the final day of the hearing. Dr Sandbank is an Associate Professor at the Department of Occupational Science & Occupational Therapy, School of Medicine at the University of North Carolina, United States. She has a PHD in Special Education, early childhood special education and neuroscience. In giving her evidence she provides no opinion on DKQG, all her opinions expressed are regarding analyses of the research literature about ABA and its effectiveness.
Her oral evidence can be summarised as follows:
·ABA is the term referring to the field of science that generates evidence that underpinning early intensive behavioural intervention.
·In research science, random assignment is the best control to ensure that groups are equal on both measured and unmeasured attributes.
·Aware of three randomised controlled trials (RCT’s) regarding children with Autism, as outlined in her July 2022 report. There are no RCT that support higher intensity/more hours being more effective for children with autism, in giving them better outcomes
·Dr Frazier’s criticisms of her July 2024 JAMA study were put to her, and she stated:
- When his developmental quotient issue was raised, she added this as covariant and republished her findings, but she still did not find the same results as him; and
- Her decision to control for intervention type was based on the fact that qualitatively all interventions are quite different, including the structures of their interventions.
·The research overall is not at a stage where the conclusion can be drawn that intensity drives effect.
·Dr Sandbank states there's certainly studies in favour of an effective intensity and also studies that are not in favour and of an effect of intensity. But I think when we restrict our focus to high quality evidence, we don't see a clear effect of intensity.[19]
·When asked to comment on Frazier’s most recent 2025 findings, Dr Sandbank’s opinion was that because his analysis was across intervention approaches, this limits the confidence placed in his outcomes.
[19] Transcript day three, 1:45.33 – 1.45.42.
Dr Sandbank also provides 2 expert opinion reports dated 21 July 2022 and 15 August 2022. In her report dated 21 July 2022 she states that RCT’s are the gold standard for establishing intervention effectiveness. She discusses 3 RCT’s comparing the developmental behavioural intervention of four different groups. The results of this study showed that the children made similar developmental progress over the 2 year study regardless of undertaking EIBI or NDBI and irrespective of whether they did 15 hours or 25 hours a week.
Dr Sandbank states as follows:
In 2021, Rogers and colleagues …each child was also randomly assigned to receive either 15 or 25 hours of intervention per week…... In other words, by every metric, this was a high quality study designed to reliably test questions about the relative effectiveness of competing intervention approaches at different intensities….The results indicated that, although all groups of participants exhibited significant gains over 2 years on all measured outcomes, there was no effect of either intervention approach or intensity. In other words, children exhibited markedly similar developmental progress over the course of the study, regardless of whether they received NDBI or EIBI supports, and regardless of whether they received those supports for 15 or 25 hours per week.[20]
[20] JTB, R1, 1215.
Dr Sandbank states:
My conclusion is that the quality and findings of this evidence is mixed…no studies have satisfactorily established a threshold value of intensity needed to maximize progress…Specifically, there is not sufficient high-quality evidence which suggests that 27 hours per week of intervention is unilaterally more effective than 15 or even 5 hours per week in facilitating developmental progress in young children with ASD.[21]
[21] JTB, R1, 1221.
In the report Dr Sandbank also notes that:
My conclusions broadly align with recommendations put forth very recently in the Draft National Guideline for Supporting the Learning, Participation, and Wellbeing for Autistic Children and their Families in Australia, which was informed in part by the previously described umbrella reviews. [22]
[22] JTB, R1, 1221.
PUBLISHED AND REFERRED LITERATURE
The tender bundle included a significant amount of published literature and research review material regarding early interventions for children with autism. I have considered this material and will refer to what I consider is the relevant material in my determination of the matter.
a)Jacobsen et al, 1998 Cost Benefit Estimates for early intensive behaviour for young children with Autism – General model and single state case (Jacobsen 1998). The American study estimated that early intensive behavioural intervention (EIBI) for young children with autism could lead to significant cost savings. These estimates were based on a model where children received EIBI for three years between the ages of 2 and formal schooling. The study found that the costs of EIBI were outweighed by the estimated cost savings associated with reduced long-term support needs reducing the need for ongoing special education, social support, and healthcare in later life.[23]
[23] JTB, A1, 180.
b)2006 Prior and Roberts Early Intervention for Children with Autism Spectrum Disorders: Guidelines for Best Practice (Prior and Roberts 2006).[24] The guidelines emphasise a multidisciplinary, collaborative, and individualised approach. Key principles include tailoring programs to each child's unique strengths and needs, addressing core features of ASD, and providing strong transition support. The guidelines also highlight the importance of family involvement and access to parent education and support.
[24] JTB, A2, 207.
c)January 2007 Chasson et al, Cost Comparison of Early Intensive Behavioural Intervention and Special Education for Children with Autism (Chasson 2007).[25] The American study based in Texas found Early Intensive Behavioural Intervention (EIBI) for children with autism, while it is far more expensive upfront than special education, is likely to result in substantial cost savings over the longer term due to reduced special education needs. The cost-benefit analysis was based on the assumption that EIBI could lead to successful mainstreaming for a large percentage of children, with some requiring less intensive special education and a small percentage needing continued intensive support.
[25] JTB, A3, 220.
d)2012 Prior and Roberts Early Intervention for Children with Autism Spectrum Disorders (Prior and Roberts 2012).[26] The key findings were the need for intensive, autism-specific interventions, individualised plans, and strong family involvement, with an emphasis on transition support and the generalisation of skills. The report highlights the importance of structured teaching environments, visual supports, and routines to help children with ASD learn and generalise skills to different settings and people. It also stresses the importance of ongoing assessment and collaboration between the child, their families and the professionals.
[26] JTB, A4, 235.
e)August 2013 Cost Benefit Analysis of Providing Early Intervention to Children with Autism: Estimation of the net economic benefit of early intervention for a cohort of children with autism (Synergies 2013).[27] This cost-benefit analysis of early intervention (EI) for children with autism demonstrates a significant net economic benefit and extending to long-term cost savings related to healthcare, education, and social support. They state the research has shown that for every dollar invested in autism-specific early intervention, there can be a societal return of $6.16, with $4.58 in direct cost savings for the National Disability Insurance Scheme (NDIS).
[27] JTB, A5, 259.
f)November 2020 Whitehouse et al, Interventions for children on the autism spectrum: A synthesis of research evidence (Whitehouse 2020).[28] The study provides a comprehensive overview of the effectiveness of various non-pharmacological interventions for autistic children up to age 12. The report highlights the importance of early intervention, the need for individualised approaches, and the variability in intervention effects depending on the specific intervention and child characteristics.
[28] JTB, A6, 301.
g)The December 2021 article titled, An evidence-based framework for determining the optimal amount of intervention for autistic children by Trembath et al (Trembath, 2021) reviewed current guidelines and the evidence from the Autism CRC 2020 review. The key messages were that the research evidence is inconsistent and scarce about the amount of intervention children should receive. Trembath 2021 noted that recommendations should be individualised within an evidence-based practice framework. Trembath 2021 noted that clinicians should consider whether the amount of intervention is scientifically plausible, practical to deliver, desired by the child and family, and defensible when looking at available options.[29]
[29] JTB, A9, Article - An evidence-based framework for determining the optimal amount of intervention for autistic children, Trembath et al dated December 2021, p806.
h)In 2022, Trembath subsequently published Non-pharmacological interventions for autistic children - an Umbrella Review (Trembath, 2022). The key messages were that evidence shows positive therapeutic effects for some, not all, interventions. This review found that no single intervention had a positive effect for all child and family outcomes. It found also that the influence of child and delivery characteristics on effects was unclear.[30]
i)July and August 2022, Dr Sandbank authored two unpublished expert opinions commissioned by the Respondent for use in matters before the Tribunal.[31] Dr Sandbank explains the findings from her 2021 Project Aim meta-analysis. In her 21 July 2022 report she states that the available clinical research is mixed in quality and conclusions and does not establish that more intensive supports are unilaterally more effective than less intensive supports. She says that specifically, it does not establish that 27+ hours per week of early childhood intervention is unilaterally more effective than less intensive supports such as 5 and 15 hours per week.
j)In February 2023 Synergy and the AEIOU Foundation[32] published a report titled, Cost-benefit analysis of intensive early intervention for children with autism (Synergy AEIOU 2023). This report provides a detailed assessment of data collected by AEIOU and its key message is that early intervention is crucial for improving outcomes for children with Autism.[33]
k)In June 2024 Sandbank et al published an article titled, Determining Associations between Intervention Amount and Outcomes for Young Autistic Children a Meta- Analysis, (Sandbank June 2024) Findings were that intervention effects do not increase with high amounts of intervention. The conclusion of the meta-analysis was that health professionals recommending intervention hours should be advised that there is little robust evidence supporting the provision of intensive intervention therapy hours.[34]
l)In September 2024 McKinnon, Cihon and McEeachin published A programmatic description of an early, intensive behavioural intervention program in Australia (McKinnon et al) (McKinnon 2024). This related to a study from 2011 to 2022 on 154 children with autism. They found that at the group level, children who received 27 hours per week of intervention showed significant gains on standardised cognitive and adaptive behaviour measures during an average of one year of intervention. They found the response to intervention at an individual level demonstrated that 84% of children showed an acceleration in their rate of learning during intervention, with 52% more than doubling their rate of learning in this time. Age was determined to predict improvement in developmental trajectory, while they found that intake cognitive ability did not predict improvement.[35]
m)In October 2024, Vivanti published Autism Early Intervention – Progress, Steps Backward, and the Reconciliation of Conflicting Narratives (Vivanti 2024). Vivanti reviewed recent research on interventions, services and supports for children with Autism. They observed an increase in the quantity and rigor of intervention science. They also observed that there is a decrease in research about children with Autism who also have profound intellectual disabilities, minimal to no oral communication, and who require full assistance with daily living activities.[36]
n)In November 2024 Frazier et al published Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism (Frazier 2024) claiming that selective sampling influenced Sandbank’s primary study conclusion as IQ was not added as a covariant. Frazier et. al state that intervention dosage does have a positive effect and must be factored into the design, evaluation, and implementation of treatment programs for individuals with autism spectrum disorder.[37]
o)In November 2024 Sandbank, and Putsejovsky reply to Frazier, et. al in JAMA Paediatrics titled Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism - Reply (Sandbank and Putsejovsky 2024). Sandbank and Putsejovsky 2024 contend that Frazier et al 2024 have pooled their data across intervention types limiting confidence in their findings.[38]
p)In November 2024 the Australian Government, Department of Social Services published the Early Childhood Australia National Guidelines for Best Practice in Early Childhood Intervention.[39] These guidelines emphasise the need for family-centred, strengths-based, and culturally responsive practices. The guidelines highlight the importance of inclusion, collaborative teamwork, and evidence-based approaches. One key aspect contained in these guidelines is building the capacity of families and important people in a child's life to support the child's learning and development.
q)In May 2025, Frazier and Chetcuti published Characterizing predictors of response to behavioural interventions for children with autism spectrum disorder: A meta-analytic approach (Frazier et al). This meta-analysis examined child and family characteristics, as well as intervention design factors, associated with outcomes of behavioural interventions for children with autism. Their systematic review identified 95 studies published between 1987 and 2024, encompassing 6780 children on the autism spectrum and 2150 independent effect sizes. They found greater total hours and longer duration of interventions were predictive of stronger post-intervention outcomes. They also found that higher cognitive, language, and adaptive function, and fewer autism features predicted stronger outcomes and the Intervention ratio and child age at onset did not predict outcome strength across intervention approaches.[40]
[30] JTB, A9, Article - Non-pharmacological interventions for autistic children - an Umbrella Review, Trembath et al, 2022 p815.
[31] JTB, R1 and R2, 1206-1603.
[32] AEIOU Foundation for Children with Autism, an Australian therapy provider for children aged 2-6.
[33] JTB, A10, 836 -923.
[34] JTB, A12, Article - Determining Associations between Intervention Amount and Outcomes for Young Autistic Children a Meta- Analysis, Sandbank et al June 2024, p944-954.
[35] JTB, A15, A programmatic description of an early, intensive behavioural intervention program in Australia, September 2024, p962.
[36] JTB, A16, Article - Autism Early Intervention – Progress, Steps Backward, and the Reconciliation of Conflicting Narratives, 25 October 2024, p979.
[37] JTB, A18, Article - Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism— by Thomas W. Frazier, PhD; Lacey Chetcuti, PhD; Mirko Uljarevic, MD, PhD, May 2024, p988.
[38] JTB, A17, Article - Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism by Thomas W. Frazier, PhD; Lacey Chetcuti, PhD; Mirko Uljarevic, MD, PhD – reply by Micheal Sandbank, PhD; James E. Putsejovsky, PhD May 2024, p987
[39] ECIA National Guidelines: Best Practice in Early Childhood Intervention | Department of Social Services
[40] JTB, A33, Article – Characterizing predictors of response to behavioral interventions for children with autism spectrum disorder: A meta-analytic approach, Chetcuti, Frazier et al, dated May 2025 p1185-1197.
CONSIDERATION
As a starting point I accept that the NDIS is responsible for providing personalised supports specific to a child’s disability or developmental delay that are in addition to the needs of a child of similar age, and beyond the reasonable adjustment requirements of early childhood development service providers.
I further accept, and the parties agree, that the early intervention support provided by LL are reasonable and necessary for DKQG. The issue turns on the level/hours of support, rather than the support as a whole.
The written and oral evidence given by DKQG’s parents and his paediatrician clearly outline that DKQG is non-verbal and has profound autism level 3 with self-injurious behaviours. The evidence as a whole demonstrates that DKQG presents with significant delays across all developmental domains which severely impact his ability to participate in daily life.
The Respondent currently provides capacity building funding of $66,926.52 under Improved Daily Living and $13,527.36 under Behaviour Support in the capacity building category of the current plan. The Respondent accepts that DKQG’s parents have exercised their choice and control to use this capacity building funding on early intensive behavioural intervention therapy through LL.
On the evidence provided by DKQG’s parents, his LL behavioural therapists and other practitioners I am satisfied that the early intervention therapy at LL meets s34(1)(aa) as it is reasonable and necessary to address DKQG’s sensory and cognitive impairments arising from which he has met the disability requirements.
DKQG’s goals in his current plan relate to learning to express his wants and needs, undertaking emotional regulation, forming connections with peers and participating in group settings along with fine and gross motor activities to promote his independence. I am satisfied particularly by the cogent evidence supplied by Ms Mitchell, DKQG’s behaviour consultant that the programs and skills undertaken at LL, generalising to the childcare context all align with his plan goals. Paragraph 34(1)(a) of the Act is met.
The evidence provided by DKQG’s parents, Ms Mitchell, Ms Sharma and Ms Baldwin satisfies me that attending LL will assist DKQG to learn skills and provide opportunities for repetition and emotional regulation so as to facilitate his social and economic participation, satisfying paragraph 34(1)(b) of the Act.
I next turn my mind to paragraph 34(1)(c) of the Act. This provision requires me to be positively satisfied that the LL program represents value for money in that the costs of the support are reasonable, taking into account the benefits and the costs of alternative support.
In undertaking my assessment, I have regard to paragraph 3(3)(b) of the Act which states that in giving effect to the objects of the Act, regard must be had to the need to ensure the financial sustainability of the Scheme. I must also have regard to rule 3.1 of the Support Rules which states that the CEO must consider whether there are “comparable supports which would achieve the same outcome at a substantially lower cost”, whether the funding of the support will likely reduce the cost of the funding of supports in the long term or whether there is evidence that the support will substantially improve the participant’s life stage outcomes and whether the support will increase the participant’s independence and reduce their need for other kinds of supports.
Whether LL 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: s 34(1)(c) of the NDIS Act
I have decided to consider s 34(1)(c) value for money with s 34(1)(d) effective and beneficial, as both contain further factors that overlap, making them difficult to consider in isolation.
Rule 3.1 of the Support Rules sets out the matters to be considered in deciding whether the requested supports represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. The matters relevant are:
…(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports)…
The Applicant asserts in their Statement of Facts, Issues and Contentions that LL is based on current good practice and will significantly reduce the cost of his future needs and reliance on the NDIS. The Applicant relies on a number of articles including the published cost benefit analysis in the Synergies 2023. The Synergies 2023 report was commissioned by the AEIOU foundation and focused on the economic costs of autism spectrum disorder in Australia. The report included a detailed literature review and analysis of early intervention treatments such as ABA therapy. It also assessed studies on the benefits of early intervention for children with autism, stating that funding intensive early intervention for children with autism resulted in these savings to the NDIS modelled over the lifetime of the entire cohort:
·Core support spending - $69.13 million
·Capacity building spending - $996,000; and
·Capital spending - $277,000[41]
[41] JTB, S2, 2563.
The Respondent’s position is the LL program at $170,606.90 per year does not represent value for money. The Respondent states that the evidence does not support that LL is reasonable, relative to both the benefits achieved and the cost of alternative support. The Respondent’s Statement of Facts, Issues and Contentions asserts:
As to the Applicant’s prognosis and trajectory, there has been a lack of sustained progress despite periods of intense intervention by both speech therapists and EIBI/ABA practitioners.[42]
[42] JTB, S3, 2591.
In the Outcome of Internal Review Request dated 4 September 2024 the Agency stated that:
The NDIS acknowledged that DKQG requires substantial support to participate in daily life, in the home, community and mainstream settings, and that the level of intensive supports are still appropriate to build his capacity. DKQG’s updated capacity building therapy budget has funding of 345 hours $66,926.55 for key worker model intensive capacity building daily activity funding which is in line with best practice key principles and can be used for therapy supports that best assist DKQG to achieve his goals.
In addition, DKQG has been funded for 45 hours of specialist behavioural intervention support and 20 hours of behaviour management plan including training in behaviour management strategies to work on his behaviour concerns. NDIS pricing arrangements already takes into account travel across the child’s environments and is inclusive of parental training.[43][43] JTB, T2, 53.
The evidence timeline is DKQG attended LL at 27 hours a week from 7 July 2024 to end of November 2024 when his NDIS funding ran out, rejoining from March 2025 to current day. The AP report dated July 2024 when DKQG was aged 47 months notes he displays cognitive and developmental skills similar to a child aged 10 - 18 months across the four measured developmental areas. He displays adaptive behaviours similar to a child aged 5 - 25 months of age.[44] In their 12 November 2024 progress report, after a period of intensive intervention of 27 hours per week since 7 July 2024, AP notes at DKQG’s current age of 51 months he is displaying cognitive and developmental skills similar to a child aged 10 -18 months across the four developmental areas and adaptive behaviours of child aged 5 - 25 months of age.[45]
[44] JTB, T11, 105.
[45] JTB, A20, 1010.
I note that the Australian Governments National Guidelines for Best Practice in Early Childhood Intervention identifies that children learn best through everyday experiences and interactions in their natural environment. These Guidelines state that the best practice approach is for capacity building support to be built across key people in a child’s life , in the child’s natural settings both in-home and community so that they can implement appropriate strategies incidentally, as part of their everyday life.
Ms Mitchell’s oral evidence outlined some of the strategies learnt by DKQG like the verbal countdown and modelling of single words and she explained how these types of strategies are being taught in order to then assist with the scaffolding for skills such as learning to take turns and learning to follow adult-led instructions.
Ms Baldwin’s written evidence was she recommended DKQG undertake 20 hours 1:1 and 5-10 hours small group, due to his significant and extensive delays requiring a comprehensive intervention program. She explained that her recommendation was based on the comprehensive intervention program of 27 hours allowing DKQG to work on numerous goals repetitiously for many hours each week. She also made reference to his parents’ preference for intensive early intervention supports.
DKQG’s parents, Ms Mitchell and Ms Baldwin all gave evidence that they observed a regression in his skills and behaviours, both during the break from LL and when he re-entered LL in March 2025. The evidence was that DKQG was unable to retain or generalise his learnt skills and that his skills regressed due to the break.
On this point I go back to Dr Pincus’ explanation of the fluctuations in presentation for children with autism. He described in his experience that children with autism may show periods of improvement, along with periods of regression. Ultimately, he states these fluctuations will continue to occur, and all form part of the complex presentation of level 3 autism.
Dr Pincus recommends that 8 -12 hours of LL would be effective for DKQG. In his oral evidence he states:
I do actually have some concerns about ABA therapy.
I have actually recommended it in this situation, and I've tried to come to a middle line between what the family want, what I have seen, but I actually am still not certain that it's going to make a difference compared to other approaches.[46]
[46] Transcript, day three 2:40:10-2:4014.
In Dr Pincus’ opinion DKQG’s inability to communicate can give rise to his frustration and other behaviours of concern like his disrobing or self-injurious behaviour.
In considering the evidence given from Dr Sivabalan, DKQG’s treating paediatrician he states he is not sufficiently familiar with the research to put forward a weekly figure on therapy hours for DKQG. I note Dr Sivabalan had not received any reports from DKQG’s behaviour practitioners or other therapists up until early in 2025. As such up until that point his recommendations were informed by his clinical knowledge, opinion and the parental observations shared with him. Conversely Dr Pincus had the opportunity to dispassionately review the reports and material.
Ms Hoffman an occupational therapist who conducted a functional assessment on DKQG in December 2024 recommends five days a week of intensive behaviour therapy of 8 hours a day, and in the alternate that DKQG have 10 hours support worker assistance on the weekend and 4 hours support worker assistance each afternoon on weekdays for DKQG. She states that:
I'm of the belief that the more intensive and the more hours that a child similar to [DKQG] could engage in ABA one to one therapy is beneficial.[47]
[47] Transcript, day three 25:58.
The Respondent noted Ms Hoffman's recommendations leave little room for parental engagement, or for DKQG to have his own leisure time. Dr Pincus expressed concern about this, stating that DKQG needs his downtime to be himself outside of any learning or therapy context.
Ms Lee, DKQG’s speech therapist evidence is that she has observed an increase in self-injurious behaviour this year. I give weight to Ms Lee’s observations as she is, apart from Doctor Sivabalan, DKQG’s longest treating clinician. Ms Lee explained the self-injurious behaviour she has observed in her sessions cause her to question whether he is frustrated. She states that:
So sometimes [DKQG] does get very frustrated. I'm unsure of what the trigger is. There is no apparent trigger to me, but there might be something. So if he is in that state of being very frustrated, he will hit his head.[48]
[48] Transcript, day three 1:02:51 - 1:03:02.
The Respondent’s position is that DKQG’s frustration raises a concern about the intensity level of the therapy he is receiving.
During Ms Lee's evidence she helpfully went back through her clinical notes from this year and read them out for the Tribunal. These notes are based on her observations and her interactions with DKQG during 2025. She notes that she had seen an increase in self-injurious behaviour and frustration this year.
Dr Pincus explained his opinion is that DKQG’s inability to communicate can give rise to frustration and other behaviours of concern like disrobing or self-injurious behaviour. Both Doctor Pincus and Miss Lee expressed that should DKQG not communicate via verbal speech, he requires an alternative way to communicate his needs and wants.
On this point in his oral evidence Dr Pincus states that:
We want to work out some way that he can communicate in all situations. And I think that will be helpful for his emotional regulation because I feel he could be so frustrated with people not knowing what's going on in his mind and what he wants. So that's why I do reluctantly agree to support it.[49]
[49] Transcript day three, 2:53.17 – 2:53.44.
Dr Pincus stated that augmentative communication devices trialling and training should be prioritised and a major focus in therapy for DKQG and his parents in the next plan period to meaningfully give him functional communication skills.
DKQG’s parents are plainly engaged, loving and committed parents who have a deep difficulty on a day to day basis in ways that no one but them can understand, mediating the needs of their three children who are at very different developmental stages with very different demands on their time. I acknowledge they are working very hard to provide and meet what they clearly recognise as their parental responsibility to make the right choices for DKQG, and to support him both inside and outside of home, in his clinical settings, therapeutic environments and his daycare.
DKQG’s parents’ evidence is, and I accept it, that they have gone to great lengths researching and undertaking comparable supports in the early behavioural intervention space. DKQG’s parents have also commenced having his LL behaviour therapist attend his mainstream daycare setting to provide ongoing support to him in this setting.
Ms Mitchell and Ms Baldwin’s report dated 20 January 2025 outlines their observations of DKQG’s progress against his individual learning goals in his last week at LL as well as his progress and regression.[50]
[50] JTB, A26, 1125 – 1128.
While this report characterises whether a goal is either improved, maintained or worsened, Ms Mitchell gave evidence on cross-examination that if a skill was not observed it would be marked as worsened. The Respondent contends, and Ms Mitchell accepted on cross-examination, that instead there is the possibility the skill was not able to be observed during the period the assessment was undertaken.
The break in DKQG's engagement with ABA therapy ceased on the 21 November 2024 and his re-engagement began March 2025. During this break he only had 1.5 hours of family skill building per week. This evidence regarding DKQG during the end of November 2024 and beginning of March 2025 only satisfies me generally that LL is beneficial, it doesn’t rise to the level of satisfying me that 27 hours a week is reasonable and necessary.
Ms Baldwin gave oral evidence about an observed acceleration in DKQG having returned to therapy this year, as follows:
Since he's come back to the centre, he's settled back in really well. It's been really nice to see how well he's become just re-accustomed to the learning environment. He's always happy to be there, which is nice to see. He also, which has been really lovely when looking at his progress and reviewing his goals, is that we've actually started to see a little bit of an acceleration in his learning.[51]
[51] Transcript, day two 1:25:15 - 1:25:28.
Ms Baldwin was asked by the Respondent whether she considered the possibility that the break in therapy had been a factor in that acceleration observed in DKQG. Ms Baldwin stated that she hadn't turned her mind specifically to this but asserted that LL were able to re-establish his learning to learn skills quickly. I weigh this evidence up against the experience of Dr Pincus has observed in the fluctuating nature of level 3 autism on regressions and accelerations.
The substantial fluctuation in relation to DKQG’s presentation does make it difficult to draw inferences about what intensity of therapy is effective at what point in time. These matters are complex, however I am not satisfied that the evidence rises to the level that supports the 27 hours being requested as effective and beneficial, over any lower quantum. The significant resource implications of providing the hours of requested therapy and more specifically the need to ensure the financial sustainability of the NDIS means I must be positively satisfied on the value for money criterion.
In considering whether 27 hours a week at LL will be, or will likely be, effective and beneficial for DKQG having regard to current good practice, it raises the operation of rules 3.2 and 3.3 of the Support Rules which provide as follows:
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and referred literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
The Tribunal is required to be positively satisfied that section 34(1)(d) is established on the evidence.[52]
[52] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201]; Beezley v Repatriation Commission (2015) 150 ALD 11 at [68].
Turning to the two academics that gave oral evidence, Dr Frazier spoke to his May 2025 article on his meta-analysis results where he found stronger outcomes were observed across intervention approaches for children with higher cognitive, language, and other developmental abilities and greater adaptive functioning. He explained that his research shows interventions of longer duration and greater total hours were associated with stronger post-intervention outcomes. He states the type of intervention, method of delivery, and the age of the child at onset of intervention did not significantly predict the strength of post-intervention outcomes.
Conversely Dr Sandbank gave oral evidence that when researching within intervention types, the models did not evidence a significant positive association between any index of intervention amount and intervention effect size. Dr Sandbank stated that Frazier’s May 2025 findings do not support that intervention effects improve with increasing amounts of intervention.
Dr Sandbank’s conclusions regarding Frazier’s May 2025 meta-analysis are that when one controls for variables such as study design, randomised control trial and like intervention types, the evidence diminishes and limits confidence in the idea that more hours a week of therapy is driving positive effects for children with autism.
Overall I prefer Dr Sandbank’s evidence over Dr Frazier’s, in that 20-plus hours per week of early childhood intervention is not unilaterally more effective than less intensive supports and that the evidence does not support that therapy delivered in greater amounts consistently leads to better outcomes for children with autism.
I am persuaded particularly by her findings when turning to Recommendation 56.3 and 56.4 in the Australian CRC Guideline about the current state of evidence and good practice. They state that no set hours per week, or at consistently greater intensity leads to better outcomes for all children, as follows:
56.3 Practitioners should inform parents that there is no set number of hours per week of practitioner delivered child-directed supports that leads to the best outcomes for all children.
56.4 Practitioners should be aware that research evidence does not support the concept that supports delivered in greater amounts consistently lead to better child and family outcomes.
The opinions of DKQG’s parents, Ms McKinnon and Ms Baldwin about the benefit of 27 hours of intervention appear difficult to reconcile and maintain in the face of Dr Sandbank’s research and the approved, published Australian Cooperative Research Centre guidelines that no amount of set hours per week leads to best outcomes for all children.
I prefer Dr Sandbank’s opinion both about her own work, along with the results of more recent research into outcomes. I note that the literature relied on by DKQG, such as the research by McKinnon 2024 et al provides preliminary findings about children undertaking the 27 hours a week program, is descriptive research from data collected 2011-2022. I give more weight to Dr Sandbank’s view because of her cogent explanation of the body of comparative research vs descriptive research into the efficacy of intervention programs in recent years. She explained that there is currently more robust evidence available as to the type and intensity of intervention that is likely to be most effective.
While Dr Sandbank states that no research methodology is free of limitations, she explains that studies utilising RCT’s provide more robust results. She stated currently there are no findings via RCT that support the suggestion that higher therapy hours provide better outcomes for children with autism, when compared with 5 to 15 hours a week.
I prefer the evidence from Dr Sandbank that the recent reliable, robust research indicates that intervention in excess of 15 hours per week does not achieve improved outcomes when compared with 5 and 15 hours per week. I give greater weight to Dr Sandbank and Dr Pincus’ conclusions that the current evidence does not support the finding that higher therapy hours provides better outcomes.
I am not satisfied the program is value for money and as a consequence I find that s 34(1)(c) is not satisfied. In considering the current research literature and the expert opinions I have preferred I am not satisfied that LL would be, or would likely to be, effective and beneficial or that it represents current good practice at 27 hours a week. Section 34(1)(d) of the NDIS Act is not satisfied.
Because the criteria in section 34(1) are cumulative, it is not necessary for me to consider whether the further criteria under sections 34(1)(e) or s34(1)(f) of the NDIS Act are met.
I accept on balance that the evidence establishes LL at smaller weekly quantum would be or would likely be beneficial, of between 8 and 15 hours per week. This takes into account Dr Pincus’ reluctant recommendation of LL for DKQG of between 8-12 hours a week. The upper range of the research on which I rely suggests 15 hours while Dr Pincus suggests 12 hours. Accordingly, I take a midpoint approach that an intervention intensity level for DKQG of 14 hours per week of early intensive behavioural intervention for 50 weeks per year for DKQG is reasonable and necessary, with 1 hour a week for behavioural consultation for 50 weeks.
Speech and Occupational Therapy
DKQG requests 2 hours per week and 1 hour per week of travel time for 48 weeks of the year, plus 3 hours’ report writing and 6 hours per year for therapist team meetings (total of 153 hours per year) for speech therapy.
With occupational therapy DKQG seeks 1 hour per week 1:1 occupational therapy for 48 weeks plus 3 hours per year for progress report writing, and 6 hours per year for therapist team meetings. Occupational therapy for an overall total of 57 hours per year.
With respect to DKQG’s ongoing need for speech therapy Ms Lee states that:
[DKQG] continues to present with:
· Severe Receptive Language Disorder, associated with his diagnosis of ASD
· Severe Expressive Language Disorder, associated with his diagnosis of ASD
· Significantly Delayed Play and Social skills
These communication difficulties are impacting [DKQG] in all areas of his life, including his ability to understand and follow instructions, interact appropriately with others, express himself, participate in activities and to develop relationships with peers. At times, [DKQG] has also demonstrated challenging behaviours when becoming emotionally frustrated or dysregulated, as a result of being misunderstood. The importance of intensive access to therapy while [DKQG] is young has been shown to contribute to increased progress. Without this, [DKQG] experiences regression in his skills and it will be difficult for [DKQG] to participate in daycare, in community activities and to develop meaningful relationships.[53]
[53] JTB, T7, 90.
The Respondent contends that the capacity building funding in the Applicant’s current plan is available to be used flexibly for speech pathology, including to further explore and learn to use augmentative communication devices.
The evidence establishes that because DKQG is non-verbal and is not proficient at using communication boards or other alternative communication methods, that identifying a method of communication for DKQG is essential and crucial to enable his full participation in life.
In determining how many hours of speech therapy are reasonable and necessary I weigh the evidence of Ms Lee and DKQG’s parents with the recommendations of Dr Pincus. While Ms Lee recommends 4 hours a week direct speech therapy inclusive of 20 minutes travel to childcare per session, I note DKQG’s parents request is for 2 hours a week therapy plus the 1 hour per week travel time. Dr Pincus in his report dated 17 February 2025 was also supportive of the 2 hours a week speech pathology.
I agree that it is necessary and beneficial for provider travel to be funded as the speech pathologist will be able to work with DKQG in other environments outside the clinical setting to maximise the benefit of this therapy. I find that the reasonable and necessary support for speech therapy under s 34 of the NDIS Act is 96 hours per annum of speech therapy, plus 48 hours for provider travel along with 3 hours report writing and 6 hours for therapist team meetings for a total of 153 hours per annum.
Regarding occupational therapy DKQG requests 1 hour of occupational therapy per week for 48 weeks of the year plus 3 hours’ report writing and 6 hours per year of therapist team meetings for a total of 57 hours per year.
The Respondent contends that the evidence before the Tribunal does not support the requested occupational therapy hours, and that the current flexible capacity building funding in the plan can be used by DKQG’s parents.
Dr Sivabalan stated in his oral evidence, he is supportive of DKQG undertaking occupational therapy:
I think from, I mean especially when it comes to fine motor abilities, I think it would provide a significant benefit compared to ABA…also to prepare him when it comes to schooling to maximise his ability to scribble, draw, colour, use his fine motor abilities for complex tasks like zipping, tying, cutting, all the other important activities that are required.[54]
[54] Transcript, day two 44.25- 44.51.
I note that Ms Hoffman’s OT report did not recommend ongoing therapy hours and Dr Pincus did not recommend ongoing OT in his written evidence. During oral evidence however Dr Pincus did agree there was benefit in DKQG undertaking 1 hour occupational therapy a week.
There is evidence before me that as of February 2025 DKQG’s parents have started him at combined occupational therapy/functional neurological therapy sessions and that he had already learnt a few skills to assist with his emotional regulation, and was enjoying these sessions.[55]
[55] JTB, S2, 2558.
On the evidence before me I have formed the view that 48 hours per annum of occupational therapy with 6 hours for therapists’ team meetings a year is likely to be effective and beneficial for DKQG along with report writing of 3 hours a year. I find that 57 hours per annum of occupational therapy is a reasonable and necessary support under s34(1) of the NDIS Act.
CONCLUSION
Having regard to the above, I find section 34(1)(c) and (d) are not satisfied in relation to the LL program of early intervention supports requested. As these are cumulative criteria, it is not necessary for me to consider further. I find that the LL program at $170,606.90 a year is not a reasonable and necessary support for DKQG.
I accept that the cumulative evidence available establishes that early childhood support at a reduced intensity would be, or would likely be, beneficial to DKQG. I find that an intervention intensity level of 14 hours per week early intensive behaviour intervention for 50 weeks per year at Level 2 therapy assistance rate and 1 hour a week for 50 weeks per year for behavioural consultation has been established on the evidence before me as reasonable and necessary. I find that 153 hours of speech therapy and 57 hours of occupational therapy a year are also reasonable and necessary supports for DKQG.
DECISION
The Tribunal pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:
a)Within 14 days of this decision, DKQG’s statement of participant supports includes as reasonable and necessary:
·14 hours a week for early intervention therapy delivered by a Therapy Assistant Level 2 for 50 weeks of the year; and
·1 hour a week for behavioural consultation for 50 weeks per year;
b)157 hours of speech therapy per year;
c)57 hours of occupational therapy per year.
Date of hearing: 28, 29, 30 May 2025
Counsel for the Applicant: Mr J Patela of Counsel
Solicitors for the Applicant: Ms A Cox, Special Voices
Counsel for the Respondent: Ms A Douglas-Baker of Counsel
Solicitors for the Respondent: Ms J Thomson, Moray & Agnew
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