DYJR and The CEO, National Disability Insurance Agency (NDIS) - [2025] ARTA 186

DYJR and The CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 186 (6 March 2025)
Applicant/s:  DYJR
Respondent:  The CEO, National Disability Insurance Agency
Tribunal Number:                2023/4212

Tribunal:General Member N Purcell
Place:Sydney
Date:6 March 2025

Decision:The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the recommendation that the following supports be funded in the Applicant’s statement of participant supports:
5 hours per day, 7 days a week for 46 weeks for support worker assistance with daily living at the higher intensity rate;1.
42 days (6 weeks) of Short Term Accommodation (STA), being 30 weekdays, 6 Saturdays and 6 Sundays;2.
60 hours of occupational therapy;3.
30 hours of speech therapy;4.
5 hours for continence assessment and advice;5.
Behaviour Support consisting of:6.
90 hours for specialised behaviour support;a.
30 hours training and implementing a behaviour support plan; andb.
40 hours for skills building;c.

120 hours for support coordination, level 3;7.
8.    Existing funding for continence aids and assistive technology comprising $8,492.50 per annum for washable incontinence products for children, $181.10 per annum for non-body-worn washable products for absorbing urine and faeces and $250 for low-cost AT for communication or cognitive support; and
9.    The date by which the Respondent will review the Applicant’s plan is 12 months after the day on which the reasonable and necessary supports above are included in the Applicant’s statement of participant supports.

....................[SGD]....................................................
General Member N Purcell
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – residential program for children with autism – STA – respite – NDIS support – behaviours of concern – sexualised behaviours – behaviour support interventions.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
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)
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
McGarrigle and National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
National Disability Insurance Agency v KKTB (2022) 295 FCR 379
WVGM v CEO, National Disability Insurance Agency [2025] ARTA 47
SECONDARY MATERIALS
Operational Guideline – Reasonable and Necessary supports, 22 September 2024.
Operational Guideline – Short Term Accommodation and Respite, 24 June 2022.
Statement of Reasons
INTRODUCTION

DYJR (the Applicant) is a 12-year-old boy, who will turn 13 in June 2025. He lives with autism spectrum disorder (ASD) and a likely moderate intellectual disability. He resides in Melbourne with his parents and attends a local school for children with disability.
The Tribunal heard the Applicant is an incredibly friendly and social child who enjoys being with other people. He likes cars and trains, going on excursions and being out in his community. By all accounts, he is a well-loved and valued member of his family and local community. As he has grown older and stronger, the Applicant has increasingly exhibited a range of behaviours of concern; the intensity of which pose a risk to the safety and wellbeing of those around him, particularly his mother.
The application for review primarily focused on a request for the Applicant to attend a residential program at Mansfield Autism Statewide Services (MASS) in regional Victoria for 9-weeks in the first year and 6-weeks in the second year to address his behaviours of concern.
DECISION UNDER REVIEW
The Applicant seeks external review of a decision by a delegate of the CEO of the National Disability Insurance Agency (the Respondent) dated 13 June 2023 made pursuant to section 100(6)(a) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). This affirmed an earlier decision made on 4 May 2023 pursuant to section 33(2) of the NDIS Act to approve a statement of participant supports (SOPS) in the Applicant’s plan. On 9 March 2024, the Applicant’s plan was extended and is due for review on 3 May 2025 (current plan).
The Applicant, through his father and representative, applied to the Administrative Appeals Tribunal (AAT) under section 103 of the NDIS Act on 14 June 2023. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, DYJR’s application was automatically transferred to the ART.[1]
[1] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
Issues in dispute
The current statement of participant supports includes the following:
(a)Core Supports
(i)Flexible funding for support workers to provide assistance with daily living (ADL) comprising 4 hours per day over 46 weeks (including weekends and public holidays)
(ii)Short Term Accommodation (STA) comprising 28 days (including weekends)
(iii)Funding for continence aids and assistive technology (AT) comprising $8,492.50 per annum for washable incontinence products for children, $181.10 per annum for non-body-worn washable products for absorbing urine and faeces and $250 for low-cost AT for communication or cognitive support.
(b)Capacity Building – Improved Daily Living
(i)Occupational Therapy (OT) – 26 hours
(ii)Speech Therapy – 26 hours
(iii)Continence Assessment and Advice – 5 hours
(c)Capacity Building – Improved Relationships
(i)Specialist Behaviour Intervention Support – 90 hours
(ii)Behaviour Management Plan and Training in Behaviour Management Strategies – 30 hours
(iii)Individual Social Skills Development – 40 hours
(d)Capacity Building – Support Coordination
(i)Support Coordination (level 2) – 36 hours.[2]
[2] ST5 of JHB, p772.
The Applicant’s father sought additional supports be included in the Applicant’s SOPS, outlined below at paragraph 13.[3]
[3] ST5 of JHB, p771-772.
Prior to hearing and having further reviewed the material, the Respondent conceded that the following supports were reasonable and necessary:
(a)60 hours of OT for 12 months.
(b)30 hours of speech therapy for 12 months; and
(c)120 hours of specialist support coordination level 3 for 12 months.
The Tribunal is satisfied, having considered the written and oral evidence, that this was an entirely appropriate concession for the Respondent to make.
At hearing, having heard additional evidence from the Applicant’s parents and treating paediatrician, the Respondent also submitted that 6 weeks of STA was reasonable and necessary. The Respondent was clear that this was not an endorsement of any particular program, and it would be a matter for the Applicant’s parents how they chose to use the respite funding.
Following the hearing, the Respondent drafted orders pursuant to section 85(1) of the ART Act which would permit the matter to be remitted to the Respondent for consideration based on partial agreement between the parties about a range of supports that were not in dispute. This was also done to provide the Applicant’s parents with some certainty about what would be included in the Applicant’s new statement of participant supports while awaiting the Tribunal’s decision on the remaining disputed supports. The Tribunal is satisfied the Applicant’s father agreed to these supports. For reasons of timing, the Tribunal elected not to make the section 85 order and has instead decided to reflect those terms in this decision, with the increased supported highlighted in bold. These include:
(a)Core Supports
(i)Flexible funding for support workers to provide assistance with daily living (ADL) comprising 5 hours per day at the higher intensity rate (including weekends and public holidays but excluding the 42 days/6 weeks the Applicant will utilise STA)
(ii)Short Term Accommodation (STA) comprising 42 days/6 weeks (including weekends)
(iii)Funding for continence aids and assistive technology (AT) comprising $8,492.50 per annum for washable incontinence products for children, $181.10 per annum for non-body-worn washable products for absorbing urine and faeces and $250 for low-cost AT for communication or cognitive support.
(b)Capacity Building – Improve Daily Living
(i)OT – 60 hours
(ii)Speech Therapy – 30 hours
(iii)Continence Assessment and Advice – 5 hours
(c)Capacity Building – Improved Relationships
(i)Specialist Behaviour Intervention Support – 90 hours
(ii)Behaviour Management Plan and Training in Behaviour Management Strategies – 30 hours
(iii)Individual Social Skills Development – 40 hours
(d)Capacity Building – Support Coordination
(i)Support Coordination (level 3) – 120 hours
For the avoidance of any doubt, the Tribunal is also satisfied on the written and oral evidence, discussed in more detail below, that these supports are reasonable and necessary supports pursuant to section 34(1) of the NDIS Act and the relevant rules.
Accordingly, only the following requested supports remained in dispute:
(a)Additional 21 days of STA (which in combination with 6-weeks of STA, would allow for a continuous 9-week program in first year) and 42 days of STA (continuous 6-week program in second year) which would be utilised at Mansfield Autistic Statewide Services (MASS).
(b)52 hours of sexualised behaviour therapy
(c)An extra $2,152.80 for incontinence aids and AT over 24 months; and
(d)10 hours for a specialist gastroenterologist.
At the conclusion of the hearing, the Applicant’s father confirmed that he no longer sought NDIS funding for 10 hours with a specialist gastroenterologist. The Tribunal agrees this was an appropriate concession for the Applicant to make noting Rule 7.5 of the Supports Rules make clear that the NDIS is not responsible for the diagnosis and clinical treatment of health conditions.
The hearing
The Applicant was represented by his Father and the Respondent was represented by Ms Natalie Blok of Counsel and instructed by Moray & Agnew.
The hearing was conducted via video over 2 days. The Applicant’s mother and father both gave evidence, along with his Consultant Paediatrician Dr Rick Jarman and Behaviour Support Practitioner (BSP) Ms Megan Murphy from MASS. Dr Michael Harbord, Paediatric Neurologist, was also called by the Respondent to give evidence.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing bundle (JHB) which was accepted into evidence. This included a set of documents filed by the Respondent pursuant to section 37 of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’), the Respondent’s Statement of Facts, Issues and Contentions (SOFIC) dated 24 January 2024 and an independent report of Dr Michael Harbord, dated 25 June 2024.
The Applicant filed a range of documents over the course of the proceedings, also contained in the JHB, including various reports from BSP Ms Murphy, other practitioners who work at MASS and a letter from Dr Rick Jarman dated 16 August 2024.
At the request of the Tribunal, further documents were filed by the Applicant and Ms Murphy during the hearing which were compiled into a supplementary joint hearing bundle, marked JHB 2. This was also admitted into evidence.
Role of the Tribunal
The Tribunal’s role is to make the correct or preferable decision based on the material before it.[4] In reviewing the decision:
[4] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J).
(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
[5] See Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
(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]
[6] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
RELEVANT LAW
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
A participant’s plan must include a statement of participant supports, approved in accordance with section 33 of the NDIS Act, and any rules made under the NDIS Act.
The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions. The Act introduced a new section 10 regarding a definition of NDIS support and amended section 34(1)(f). These changes apply to the Applicant’s SOPS and must be considered by the Tribunal.[7]
[7] Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement.
Subsection 34(1) of the NDIS Act now relevantly states:
(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.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[8] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[9]
[8] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [202].
[9] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
The term “reasonable and necessary support” is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency, Mortimer J observed, at [91], with respect to the terms prior to the recent amendments:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.[10]
[10] [2017] FCA 308 at [91].
The Full Court in National Disability Insurance Agency vWRMF considered the meaning of reasonable and necessary supports:
[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.[11]
[11] WRMF at [149]-[151].
In National Disability Insurance Agency v KKTB, the Full Court reiterated the focus of the scheme on the support needs of the individual participant:
Each decision under Pt 2 of Ch 3 of the Act to approve a statement of participant supports is a decision about an individual and their needs… the legislative scheme demands a focus that is very much on the support needs of the individual participant.[12]
[12] (2022) 295 FCR 379, [2022] FCAFC 181, at [26].

Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Relevant rules in the Applicant’s case include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’).
Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary including whether they represent value for money, are effective and beneficial having regard to good practice, take account of what is reasonable to expect families to provide and are most appropriately funded by the NDIS, rather than through other service systems.
Part 5 contains general criteria regarding supports including those that will not be funded. Rule 5.1 provides:
5.1 A 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.
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Supports Rules’) also introduce several key changes. Schedule 2 of the Transitional Supports Rules stipulate supports that are not considered NDIS supports, discussed further below.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[13] The Operational Guideline - Reasonable and Necessary Supports (22 September 2024)[14] and Operational Guideline – Short Term Accommodation or Respite (24 June 2022)[15] are relevant to this decision.
EVIDENCE
[13] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[14]
[15]
Applicant’s Mother and Father
The Applicant’s Father set out the reasons for the appeal as follows:
By way of background, we sought an early review of [the Applicant’s] then Plan in March 2023 due primarily to escalating difficulties with his behaviours, but also regression in his bowel control, general compliance and sleeping patterns. We had seen the best way forward was for [the Applicant] to return to MASS where he had previously undertaken two very short term placements. The reports prepared subsequent to these placement both showed measured improvements against the goals set… These placements however were of too short duration firmly ingrain these improvements, and retention was hampered by COVID restrictions preventing the MASS team from transferring them into the home environment.[16]
[16] T1C of JHB, p17.
He gave the following description of the impact from the Applicant’s attendance at the MASS residential program:
The benefits to be gained from a further placement at Mansfield are many and varied. The rigorous attention to detailed visual planning provides [the Applicant] with certainty as to the immediate future, and has a demonstrably calming effect on him. It also provides him with a method of clearly conveying his wants. [The Applicant’s] incontinence and bed-wetting were all but conquered at his last placement, but these have returned as significant issues. [The Applicant] presently gets out of bed in the early hours and hops into bed with mum. Given his early onset of puberty, this is particularly unacceptable. Again good progress was being made in this area until Covid protocols intervened.[17]
[17] T15 of JHB, p111.
The Applicant’s Mother provided the following description of her experiences caring for the Applicant:
I love [the Applicant] more than anything in the world he is my world but it has come at a cost to my health mentally, physically, emotionally and financially. For his age [the Applicant] is exceptionally tall and very strong, especially when in the throws of a meltdown… Trying to get his pants off when he has had a bowel movement is really difficult. He is upset that it’s happened so it’s physically demanding to try to get his clothes off often in a tight space without him hitting biting slapping or pulling my hair. He will often smear it over his face (for reasons we are unsure) but also flick it about in the hope he will get rid of it… I have had 2 wrist fractures and a steel plate inserted into my wrist, broken ribs, bites where I have gone to the emergency and a cut head and very bad bruising. More recently whilst he was the in the throes of a meltdown at a public event and I was having to use a walking stick (due to acute arthritis in my knew) he came up behind me and pushed me to the ground.[18]
[18] A22 of JHB, p311. The Tribunal notes the statement at A21 is a joint statement prepared by both parents, however it prefers the statement of the Mother where attribution as to authorship is clear. The statement at A23 is disregarded as it was not written by the purported author for reasons which were discussed at hearing.
The Applicant’s Mother and Father gave evidence separately at the hearing. The Tribunal considers the parents provided an honest account of their son’s behaviours. Having heard their oral evidence, which provided a more fulsome picture of the challenges they are currently dealing with, the Tribunal is satisfied the Applicant is exhibiting a range of behaviours of concern which include:
(a)Sleep issues - the Applicant getting into his mother’s bed during the night which is no longer appropriate due to his age. The Applicant’s Mother told the Tribunal that when he was younger, she would redirect him but now that he was bigger “he will punch me or kick me or whatever so I let him”.[19]
(b)Toileting issues – the Applicant wetting and pooing his pants (day and night), not properly wiping his bottom, and smearing and eating faecal matter. The frequency of toileting accidents or behaviours, particularly at school, led the family to revert to using nappies towards the end of 2024, mainly when the Applicant attends school. Both parents noted in their evidence that this sent the “wrong signals” to the Applicant about toileting behaviours. The Mother indicated the Applicant now requires bigger nappies.[20]
(c)Sexualised behaviour issues – the Applicant rubbing himself up against women’s bodies, particularly their knees, and the family dog. The Tribunal was unclear to what extent the sexualised behaviours have manifested at school at this time, however the Mother indicated she has not received any complaints or reports from his regular therapists.[21]
(d)Emotional regulation and physical aggression – the Applicant hitting, shoving, kicking, biting, pulling hair, throwing things and breaking windows when emotionally dysregulated. This is often directed at his mother causing significant injuries and fear, as described above. These behaviours have also increased at school and been directed at support workers or complete strangers. He has also put himself and/or others in danger by, for example, opening the car door along a freeway, hitting his mother while driving, running around on a bus and refusing to move off train tracks.[22]
(e)Absconding and fixated interests (e.g iPad, cars) – whilst these issues received less attention during the hearing, there was evidence the Applicant is at risk of absconding in the community without appropriate supervision and support, has difficulty transitioning away from things he enjoys (such as watching train videos on his iPad) and lacks road safety awareness.
[19] Mother’s oral evidence.
[20] Mother and Father’s oral evidence.
[21] Mother’s oral evidence.
[22] Mother and Father’s oral evidence.
The parents told the Tribunal that the Applicant has attended MASS on four occasions over the past 4 years which they consider has made a substantial difference to their son’s behaviour. After each of the Applicant’s 4-week stay at MASS, Ms Murphy BSP attends their home for 3 or 4 days to help implement the strategies, routines and skills learnt at MASS in the family home. This involves staying overnight.
The parents’ confirmed in their evidence that between July and September 2024, the Mother was required to move out of the home due to the Applicant causing a fracture to her arm. She had limited contact with the Applicant during this period except for some phone and video calls. The Father gave evidence that the Applicant largely managed to sleep in his own bed during this time and only occasionally went into his Father’s room at 5am.[23] The Tribunal also understands from the Father’s evidence that the Applicant’s behaviour was more settled and compliant during this period.
[23] Father’s oral evidence.
In terms of the Applicant’s weekly routine, his Mother explained that he attends a local school for children with disability about 15 minutes from their home. His Father drops him off and picks him up each day, leaving home around 8am and arriving back at around 3:45pm. The Applicant requires her assistance to get dressed in the morning but is largely independent eating meals. He is “obsessed with cars” and enjoys going with his support workers in their cars.[24]
[24] Mother’s oral evidence.
The Mother indicated the Applicant currently has 3 or 4 regular support workers, some of whom are still studying at university and all of whom are relatively young adults. The family recently lost several other support workers for various reasons including the Applicant’s increased aggression which left one male support worker in tears after being hit. The Applicant’s Mother said she is worried about the safety of a female support worker who regularly takes the Applicant on a Thursday afternoon because she is much smaller than the Applicant who thinks of her as his girlfriend.[25] There was no suggestion that the support worker has acted improperly – only that she may have trouble managing the Applicant’s behaviours due to his increased size, aggression and sexualised behaviour. The Tribunal considers the family is appropriately alert to the risks but may require more support and guidance to manage those risks into the future, which is discussed further below.
[25] Mother and Father’s oral evidence.
The Applicant’s Mother gave evidence that a support worker takes the Applicant on a Thursday afternoon after school and sometimes on a Saturday (for example, to Starfish, a nippers type program at the beach) and Sunday, depending on family plans including whether they have booked an excursion (for example, to a museum or Science works) through another organisation.[26] The Father indicated they don’t use support workers on Friday because they generally try to take the Applicant out for dinner in support of his goal to eat at a restaurant. He said they don’t use support workers Monday, the Applicant attends a local dance group on Tuesdays and his OT (and previously speech therapy) session were alternate Wednesdays.[27]
[26] Mother’s oral evidence.
[27] Father’s oral evidence.
The Tribunal acknowledges that there has been a lot going on for the family, including the Mother living out of the home between July and September 2024. The Father was then hospitalised for pneumonia. However, the Tribunal did find it difficult to ascertain the average number of hours of support worker assistance used most weeks, noting the existing funding for 4 hours per day or 28 hours per week (including weekends) which can be used flexibly. It seems this support may have been underutilised by the family.
Both parents acknowledged that structure and routine are very important for their son. The Mother explained that they haven’t had much luck with support coordinators, and it would be helpful if support coordinators did their job. She also noted she had difficulties paying for capacity building supports, such as OT, and funds had been incorrectly taken out of core funding, which is self-managed. The mother provided the Tribunal with evidence of her attempts to sort out the issue with the support coordinator.[28]
[28] Mother’s oral evidence.
Notwithstanding the difficulties of finding and retaining experienced service providers, Dr Jarman’s evidence (discussed further below) was persuasive that additional in-home support can be one of the most effective supports. The Tribunal considers that additional support and guidance to establish a very structured routine with a team of more experienced support workers may help the Applicant and his family to work through some of the current challenges and provide more regular and predictable breaks for his parents. The Respondent appropriately offered the higher intensity rate for this purpose, along with more specialised support coordination.
The parents confirmed that their son is receiving regular OT therapy sessions.[29] They explained the previous OT moved into a management role and so a new OT from the same organisation has been working with the Applicant for about 3 or 4 months. The OT conducts sessions in the home which the Mother considers “more beneficial” than being in a clinical setting. She said the OT seems “really interested” in the Applicant and that her son has responded well to the routine despite it being after school when he is tired.[30] The Father said he “can’t fault” the current and previous OT. He indicated the previous OT worked with the parents for 4 or 5 months on the toileting issue and then suddenly “the penny dropped” and the Applicant was able to wipe his bottom.[31] The Mother also told the Tribunal that the OT had been working on the concept of ‘public’ and ‘private’ with the Applicant. The Mother indicated she will make herself scarce during therapy sessions, so the Applicant is not distracted by her presence. The OT, and previously the speech therapist, provide a debrief at the end of the session with one or both parents.[32]
[29] See also Document 7 of JHB 2.
[30] Mother’s oral evidence.
[31] Father’s oral evidence.
[32] Mother’s oral evidence.
It was not exactly clear to the Tribunal what has led to the more recent regression in the Applicant’s toileting. The Applicant’s Father considered it a likely combination of factors including a behaviour of protest, forgetfulness/inattention (particularly when using the iPad) and the sensory experience. He acknowledged that the Applicant can wipe his bottom but only if he chooses to do so and the key issue is how to motivate him to return to that practice.[33]
[33] Father’s oral evidence.
Both parents told the Tribunal that they previously worked with a talented speech therapist. The Applicant’s Father indicated he was looking for a new speech therapist but had been unable to find one. The Applicant’s Mother explained that her son can’t communicate what he wants or express when he is in pain, which in her view, leads to many of his emotional outbursts. She indicated that the Applicant was generally able to communicate what he doesn’t like or want through kicking or screaming. Both parents agreed that increased hours for OT and speech therapy, particularly if they are working in a complimentary manner, would be of benefit to their son.[34]
[34] Mother and Father’s oral evidence.
The Applicant’s mother told the Tribunal she wasn’t sure why the Applicant wasn’t regularly seeing a Behaviour Support Practitioner (BSP). She estimated it was about 6 months since Ms Murphy had worked with her son, noting they had discussed the sexualised behaviours in passing but had not had any in depth conversations or been advised of any strategies. The Applicant’s Mother told the Tribunal that Ms Murphy introduced a planning board which has worked well in terms of the family and support workers setting out the daily schedule for the Applicant. She indicated Ms Murphy has also provided key cards and has written strategies down but did not elaborate on any practices used or implemented.[35] The Father gave evidence that the daily schedule was something the Applicant learned at MASS, along with breathing exercises which he was increasingly learning to use when emotionally dysregulated.[36] The Mother indicated she was unsure what efforts the Applicant’s Father was making to find a BSP who could work with the family on a regular basis.
[35] Mother’s oral evidence.
[36] Father’s oral evidence.
The Applicant’s Father was adamant that longer periods at MASS was the key factor likely to bring about sustained improvement to his son’s behaviour. In his view, the decision of the NDIS to decline funding beyond 4 weeks of STA, thus limiting time at MASS to one month per year, has caused significant detriment to his son, particularly over the past couple of years.
Dr Rick Jarman – Consultant Paediatrician
Dr Jarman has been the Applicant’s paediatrician since July 2019. A letter from Dr Jarman dated 16 August 2024[37] was included in the JHB and he gave oral evidence at the hearing. Dr Jarman has specialist qualifications and over 40 years of experience in developmental, learning and behavioural paediatrics. He is currently the head of the Child Behaviour Clinic at the Royal Childrens Hospital in Melbourne and runs a private practice. The Tribunal finds Dr Jarman provided balanced, objective, and nuanced evidence based on his significant experience, extensive qualifications in the field and personal knowledge of the Applicant and his family. Accordingly, the Tribunal places significant weight on his expert opinion.
[37] A13 of JHB, p288.
Dr Jarman provided the following information in his letter:
[The Applicant] has severe autism spectrum disorder and intellectual disability. He was diagnosed with ASD at age 20 months. He had delayed milestones and impairments in social and speech and language development from his toddler years onwards. He was referred for Early Intervention Services. He was involved in intensive ESDM therapy for 20 hours each week as a preschool child. He has had ongoing speech therapy and occupational therapy and other interventions through to school and beyond. He attended the [specialist school] from 2018 onwards. Behaviour has been an ongoing issue. He is emotionally reactive and aggressive. He has low frustration tolerance. He yells, screams, kicks and punches others and himself. His mother… has been a particular target and has recently been severely injured by [the Applicant] and has had to move out of the family home and live elsewhere. In fact the only thing that has made a difference to [the Applicant’s] behaviour over time has been NDIS funded stints a the Mansfield Autistic Centre (sic). This residential program provides fresh air, exercise, rigid routines, physical exercise, healthy simple diet, removal of screens and technology, and strict behaviour management and has resulted in [the Applicant] really settling while he has been at Mansfield and for the periods of time after he returns home.[38]
[38] A13 of JHB, p288.
Dr Jarman explained that MASS had been around for decades and was originally used by parents, predominantly for respite. However, in his view, it also has an intrinsic therapeutic value linked to the program’s structure and approach which reduces the “over-stimulation” and “excessive sensory overload”. He explained MASS helps to take away the business of everyday life, and that over a period of weeks, many of the children with severe autism seem to settle there. He added, “Now is that a permanent state of affairs? No”.[39]
[39] Dr Jarman’s oral evidence
Dr Jarman said he had initially wondered whether children would feel homesick being away from their parents for extended periods, however:
a lot of children with severe autism tend to cope ok with that… I think it’s just this removal of over-stimulation that actually makes the difference… now that’s all anecdotal… but I’ve had a number of kids that have gone to Mansfield over the years and a lot of the parents say the same sort of thing.[40]
[40] Dr Jarman’s oral evidence.

Dr Jarman indicated that to his knowledge, children would usually go to MASS for 6, 8 or 10 week periods but he wasn’t sure about the right amount of time. He also acknowledged that most children with severe autism don’t attend MASS due to the limited number of places and use alternative therapies and interventions. In his view, MASS had provided some positive outcomes for the Applicant and his parents but also noted it was difficult to mimic or replicate the MASS environment back at home.
The autism is not cured [by Mansfield] but the behaviours are more settled. We hope it lasts for a more prolonged rather than less prolonged period of time but inevitably there is deteriorations when they get back to their normal life.[41]
[41] Dr Jarman’s oral evidence.
Dr Jarman explained that for children with severe autism, a mix of treatment or management approaches is usually used including routine / structure, OT, speech, psychology, behaviour management and medication. He previously tried standard medications with the Applicant, which did not make a dramatic difference. Dr Jarman now intends to commence a trial of medicinal cannabis to see if that will help to reduce the Applicant’s level of agitation, irritability, and anxiety. Dr Jarman expressed concern that as the Applicant becomes bigger and stronger, there is a risk he will hurt people around him and that his Mother won’t be safe with him in the home. He indicated other adolescent patients have been required to move into state residential care, which the Applicant’s family wants to avoid.
Dr Jarman told the Tribunal there are key behaviour management principles that need to be used by the Applicant’s parents including rigid routines (same thing at the same time every day), praise and reward systems for calm, quiet, settled, compliant and cooperative behaviour and prioritising behaviours that need attention, including how to deliver consequences. He opined that increased support worker assistance was one of the better value interventions particularly for teenagers with severe developmental disabilities because they provide support for families at home. Dr Jarman also thought behaviour support practitioners and psychological input was important, particularly given the risks to the Mother’s safety. He considered OT and speech were of less importance for a child with severe autism. It was unclear to the Tribunal whether Dr Jarman realised there has been minimal behaviour support interventions in the home over the past 2 years.[42]
[42] Dr Jarman’s oral evidence.
Dr Jarman was not sure whether an additional 5 weeks, on top of the existing 4 weeks the Applicant usually spends at MASS would make a substantial difference to his behaviour. He opined that therapeutic benefits were more likely to occur after a period of weeks but couldn’t give a definitive estimate of what would be most effective for the Applicant. He thought it made perfect sense for the Mother to spend some time at MASS to deal with some of the behaviours though he had not previously heard of any other parents participating in the program.[43]
[43] Dr Jarman’s oral evidence.
Dr Jarman gave evidence that support workers should not be acting as babysitters but rather helping to build the Applicant’s skills and manage his behaviours. In his view, they need to have the skills to be able to manage him in the community.[44]
[44] Dr Jarman’s oral evidence.
Dr Jarman expressed the view that bursts of behaviour support intervention might have more impact than standard weekly or fortnightly sessions. He indicated therapeutic approaches can become a bit monotonous with therapists turning up, doing the same thing, having a chat to the parents, and then leaving. He liked the idea of periods of intensive interventions with some space in between to practice and apply the strategies at home. He considered it reasonable to review the success or efficacy of any intervention before continuing with a particular approach.[45]
[45] Dr Jarman’s oral evidence.
Dr Jarman explained that it was common for behaviours of concern to be directed at mothers. In his view, if a child with autism senses that they have power over a person then they are more likely to challenge that person. He explained the Applicant was likely to “think twice” about challenging his Father because he is bigger and stronger but may sense his Mother’s vulnerability and fear and therefore be more likely to attack her. He routinely advises parents to put on their ‘game face’, not show fear and to stare kids down; not for the purpose of intimidating or threatening them, but in a manner which demonstrates the exertion of parental authority. Dr Jarman acknowledged it is particularly hard for the Applicant’s mother at this time because she has been severely injured and so she is understandably scared.[46]
[46] Dr Jarman’s oral evidence.
Dr Michael Harbord – Paediatric Neurologist
Dr Harbord is a paediatric neurologist and was requested by the Respondent to prepare an independent report dated 25 June 2024[47] which was prepared in accordance with the Tribunal’s guideline on persons giving expert or opinion evidence. Like Dr Jarman, Dr Harbord has specialist paediatric training with over 40 years of experience and regularly sees patients with developmental delay, autism, intellectual disability and epilepsy. The Tribunal also found Dr Harbord to provide helpful insights and objective evidence based on his experience and qualifications with appropriate concessions about matters that were beyond his knowledge or expertise. The Tribunal places significant weight on his evidence.
[47] R9 of JHB, p386.
Dr Harbord was provided with briefing materials and met with the Applicant’s parents by video call in June 2024 for approximately 1 hour. He sighted the Applicant briefly at the start of the consult and explained to the Tribunal that unless the child has cerebral palsy, there is nothing to be gained from an in-person consultation. Further, as the Applicant is largely non-verbal, he could not provide additional information for the purpose of the report.[48]
[48] Dr Harbord’s oral evidence.
Dr Harbord noted in his report that the Applicant requires assistance with toileting and wiping his bottom, that he was soiling himself about once per week and smearing his faeces. The Applicant also needed close supervision due to his lack of awareness of danger, hitting his head against objects or with his hands, being physically aggressive to his mother, the risk of absconding from the house and problems with inappropriate sexualised behaviour.[49]
[49] R9 of JHB, p387.
Dr Harbord provided the following information in his report:
[The Applicant] is happy to go to school, and his behaviour at school is usually acceptable but on occasions he has been physically aggressive to the staff… There are major problems with his behaviour in that he can be physically agitated and aggressive when he cannot get his own way, and this results in physical temper tantrums. He is often physically aggressive to his mother…
[The Applicant is seen by his occupational therapist every two weeks, and if available would also have speech therapy every two weeks but this currently not available to him. He does not see a psychologist or behaviour counsellor on a regular basis and has never seen a child psychiatrist.
…
Following these residential four-week programs a behaviour therapist has visited him at home for follow-up support, and stayed overnight, with a definite improvement seen in his behaviour and some activities of daily living such as toileting while he was attending MASS camps, but unfortunately his developmental skills and behaviour deteriorated soon after returning home.[50]
[50] R9 of JHB, p387.
Dr Harbord told the Tribunal it was his understanding from the parents that the Applicant had attended MASS for periods of 4 weeks followed by some input from a behaviour support practitioner (BSP) when he returned home, however there was no ongoing input from the BSP. He understood the Applicant experienced an initial improvement in his behaviours when he was at MASS which continued to a certain degree when he returned home but these improvements weren’t sustained over time.[51]
[51] Dr Harbord’s oral evidence.
Dr Harbord indicated that in his experience, skill development and behavioural change are more likely to occur with regular input from a BSP, OT or psychologist over a long period of time rather than through a short burst of therapy with no follow up. He opined that it was preferable for hours to be spread over a long period of time which ensured regular sessions with the same therapist, rather than just a cluster of hours for a brief period. In his experience, children who showed improvement often had 1 to 2 hours per week of intervention.[52]
[52] Dr Harbord’s oral evidence.
Dr Harbord considered that owing to the Applicant’s moderate intellectual disability, he would require a lot of ongoing repetition to learn new behaviours. He did not expect the Applicant would be able to continue behaviours that were learned during a 4-week program and opined the Applicant would require ongoing interventions from a BSP. Dr Harbord indicated a longer placement at the MASS program might lead to a slightly longer duration of improved behaviours at home, but the Applicant would require significant repetition for changes to be imbedded. He thought such a process would take months rather than weeks and Dr Harbord was not confident that additional time at MASS would lead to sustained improvements in the Applicant’s behaviour.[53]
[53] Dr Harbord’s oral evidence. See also R9 of JHB, p393.
He considered that in circumstances where interventions might be ‘front loaded’, such as developing the behaviour support plan and training parents and support workers in appropriate strategies, it would still be necessary for the BSP to touch base regularly with the Applicant’s support team. This would facilitate a review of strategies to ensure they were working. He thought this should be happening every week even if it was a brief telephone conversation.[54]
[54] Dr Harbord’s oral evidence.
Dr Harbord gave evidence that in his experience, a BSP would often be supervised by a trained paediatric psychologist with an interest in behaviours and intellectual or developmental disability. He thought BSPs with qualifications in psychology or development disability were particularly helpful in developing behaviour strategies to address hyper-sexualised behaviours in adults. In his view, such an approach would also work in addressing sexualised behaviours and aggressive outbursts in children.[55]
[55] Dr Harbord’s oral evidence.
Dr Harbord was not familiar with the MASS program and to his knowledge, a similar program does not exist in South Australia. He thought a residential program for children with autism was “a good idea” because it can provide recreation for the child and respite for the family, but he was unconvinced it alone would lead to long term improvement in the Applicant’s behaviour.
In his closing submission, the Applicant’s father claimed that Dr Harbord was not an expert on his son and was out of touch with current practice and thinking in relation to autism, suggesting that he was led by “loaded questions” put to him by the Respondent.[56] In the Tribunal’s view, Dr Harbord appropriately acknowledged matters that were beyond his knowledge or expertise and gave balanced evidence informed by his expertise. Importantly, he was not critical of the MASS program. The crux of his evidence was that MASS alone would not lead to sustained improvement in the Applicant’s behaviours. This was entirely consistent with Dr Jarman’s evidence. The Tribunal does not accept that the Respondent or Dr Harbord acted with any impropriety in relation to the preparation of his report.
[56] Applicant’s closing written submissions, dated 12 February 2025, p1-2.
The Tribunal also rejects the suggestion by the Applicant’s father in his closing submission that Professor Bruce Tonge “was available to the Tribunal, but was not heard”. The Applicant’s father did not raise Professor Tonge as a potential witness until the morning of the hearing, did not file any documents from Professor Tonge and later confirmed that Professor Tonge had never assessed his son.[57]
[57] Applicant’s closing written submission, dated 12 February 2025, p2.
Ms Megan Murphy – Behaviour Support Practitioner (MASS)
Ms Murphy is a Behaviour Support Practitioner (BSP) with MASS. She was provisionally registered with the NDIS Quality and Safeguards Commission (QSC) until May 2022, when she was found suitable at the ‘Core Practitioner level’.[58] Ms Murphy has a Bachelor of Arts and a Bachelor of Teaching and is registered with the Victorian Institute of Teaching. Ms Murphy worked as a teacher for approximately 2 years before joining MASS in 2007 as a “travelling teacher”. This role was designed to support parents of children with autism in regional Victoria with respect to positive behaviour support strategies, parent coaching and co-diagnosis. She does not have any experience working for another disability organisation or a specialist disability school and confirmed that there is no specific qualification required to be a BSP.[59]
[58] Letter from NDIS QSC dated 4 May 2022 confirming behaviour support practitioner registration, filed 5 February 2025.
[59] Ms Murphy’s oral evidence.
Ms Murphy told the Tribunal she first met the Applicant and his family in 2019 prior to the Applicant accessing services. She confirmed the Applicant had been to MASS on four consecutive occasions since 2021 and generally attended during term 3 for four weeks.[60]
[60] Ms Murphy’s oral evidence.
Ms Murphy described MASS as a family centred practice which uses a coaching and demonstration model with parents and other care givers – showing them how to do it, watching them do it and helping them do it. She indicated she regularly adjusts the behaviour support plan set out in the QSC template to a more user-friendly version for parents and support workers. She noted that many support workers are very unqualified and/or inexperienced and so the strategies need to be broken down so that they can understand.[61]
[61] Ms Murphy’s oral evidence.
Ms Murphy said, “you cannot implement a behaviour support plan without actually being in the family home to model and show the meaning behind it”. She acknowledged it was rare for practitioners to spend overnight time in the family home but explained it had been a core feature of the MASS program since inception. In her view, the model is a game changer for families because it lends itself to the profile of a child with autism who requires repeat practice to establish or master a new skill. It also provides multiple opportunities during the day to implement strategies with the child and/or parents. Ms Murphy gave evidence that working around the regular schedule of a family and child is beneficial and provides more natural opportunities to coach parents or support workers.[62] She indicated her typical approach to working with families involves an initial face to face coaching period. She then maintains regular phone/remote contact, review of incident reports, occasional unplanned calls and arranging further face to face sessions when needed.
[62] Ms Murphy’s oral evidence.
The most recent behaviour support plan was drafted in November 2024 but has not been finalised. Ms Murphy explained that the development of a behaviour support plan involved meeting with parents to understand behaviours of concern, identifying any restrictive practices and developing strategies to both manage behaviours and support adaptive and communication skills. She emphasised the importance of a holistic approach and explained there was no standard formula to develop a behaviour support plan however the QSC requires the use of a particular template.[63]
[63] Ms Murphy’s oral evidence.
Apart from a recent visit in January 2025, Ms Murphy could not recall when she last conducted a face-to-face visit with the family. She indicated she was unavailable for part of 2024 and the Applicant’s Mother was also out of the home for a period, suggesting that there had been more contact in 2023. Records produced by Ms Murphy after the hearing confirm that there was no contact between herself and the family between June 2024 and December 2024,[64] which is consistent with the Mother’s evidence. The records further indicate that the Applicant was at MASS from mid-May to mid-June 2024, with Ms Murphy attending the home on 4 consecutive days from 19 to 22 June 2024 shortly after the Applicant returned home. Prior to that, Ms Murphy’s most recent face-to-face contact with the Applicant and his family occurred during a 4-day home visit from 30 August to 2 September 2023, after the Applicant returned from the MASS program. There was no evidence of any home visits in the first half of 2023.
[64] Document 3 of JHB 2, p42.
The Tribunal finds that Ms Murphy has had very limited contact with the family over the past two years, with behaviour support interventions largely limited to 4-day home visits following the Applicant’s attendance at MASS.
Ms Murphy said she was more family-focused with her behaviour support training. However, she recently spoke with a support worker and provided an easy version of the behaviour support plan along with some guidance tailored to the support worker’s capacity. Ms Murphy told the Tribunal she was not confident the support workers have the capacity to assist the Applicant to develop skills but noted their understanding of behaviour support was improving. Ms Murphy seemed to resist the suggestion that following the development of the behaviour support plan, a key part of her role was to train support workers and other service providers in relevant strategies. She emphasised that service providers are also responsible for training their support workers or other staff in behaviour support. The Tribunal accepts service providers may have a training role, however it does not ameliorate her responsibility to provide relevant training in accordance with the behaviour support plan, for which she is funded.
Ms Murphy told the Tribunal she had a conversation with the Applicant’s OT last year and shared some resources. She indicated she had met several OTs over the years but had not participated in a formal care team meeting which she attributed to “a lack of hours”. Ms Murphy acknowledged that being in the house at the same time as the OT would provide a good opportunity to collaborate, though she did not indicate whether her visits had ever been scheduled to coincide. It was unclear to the Tribunal why annual or bi-annual meetings were not possible given the existing hours of support in the Applicant’s plan for speech, OT and BSP, and noting that the Applicant was at MASS 4 weeks per year. To the Tribunal’s mind, Ms Murphy’s explanation tended towards an excuse for not doing what should clearly have been done in accordance with her own recommendations and the available funding in the Applicant’s plan.
Ms Murphy indicated she wasn’t familiar with current funding in the Applicant’s plan, stating “I only fall under one category which is capacity building”. She was unsure, for example, how many hours of support worker assistance was available. It was put to Ms Murphy that it would be important for her to understand the level of support worker assistance included in the Applicant’s plan to assess whether the behaviour support plan was being properly implemented. Ms Murphy replied, “you might think it is, but I don’t factor it in because every family is different”. The Tribunal observed this to be a wholly unsatisfactory answer to the question.
Several reports from Ms Murphy were included in the JHB. In her report dated 23 March 2023, she noted:
[The Applicant] has experienced social isolation from recreation due to his behaviours of concern in the community setting. [He] has support workers however they are limited in the activities they can do with [him] as they are not able to manage his behaviours in particular absconding and physical aggressive behaviours.[65]
[65] T10 of JHB, p75.

Ms Murphy also wrote:
[The Applicant’s] behaviours have increased in severity in the last 6 months, the impact of his behaviours affecting his relationship with is family and compromising his home situation. There is a real risk of [his parents] being physically harmed by the [the Applicant] and no longer being able to provide care for him. There is a real risk of [the Applicant] being relinquished and placed in the care of the NDIS and DFFH. Participation in the Positive Behaviour Placement is an opportunity to try and turn this around and repairs relationships with his family so that they can coexist safely again and reduce the risk of relinquishment.[66] (Tribunal’s emphasis)
[66] T10 of JHB, p75-76.
Ms Murphy recommended 60 hours of specialist behaviour support at this time.[67] However, despite the expressed concerns about relinquishment and safety, Ms Murphy’s oral evidence and the records produced by MASS do not suggest that this prompted any additional intervention or support in the home environment. The Tribunal finds this be a wholly inadequate response and raises serious questions about Ms Murphy’s professional judgement during this time.
[67] T10 of JHB, p81.
In her report dated 21 September 2023, Ms Murphy wrote:
During this period of intervention [the Applicant] was supported in a 1:1 ratio with a variety of evidence-based practices implemented to support [the Applicant] to develop skills. These included functional behaviour assessments, positive behaviour supports, visual supports, social skills and parent inclusion. Including [the Applicant’s] parents through the intervention was important as their involvement enhances the generalisation across settings.
Following the 4-week placement [the Applicant] was supported in the home setting by the Behaviour Practitioner to assist with the generalisation of skills to the home.[68]
[68] A6 of JHB, p211
The report did not provide any details of the hours or frequency of support provided in the home after the residential program. The Tribunal is satisfied, having reviewed MASS records, that the support was essentially limited to a 4-day period.
The report noted that the Applicant had experienced 3 daytime and 4 night-time occasions of “incontinence” over the 4-week program at MASS.[69] He was reported to have slept through the night from 8pm until 7am with only 3 x night-time wakings of less than 30 minutes duration. However, “[u]pon return to home [the Applicant] has night-time waking 3-4 times per week and will sleep in his mother’s bed once awake”.[70] Ms Murphy further stated, “one of the features of [the Applicant’s] challenging behaviours is that they are specific to the family a (sic) setting and occur more frequently in his mother’s presence”. In Ms Murphy’s view, the Applicant required a longer placement at MASS to change the behaviour and the Mother needed to attend MASS to learn new responses or strategies.[71]
[69] A6 of JHB, p214. The Tribunal prefers the Father’s explanation that such occasions, rather than incontinence, might be more correctly considered behaviours associated with protest, forgetfulness / inattention or sensory.
[70] A6 of JHB, p214.
[71] A6 of JHB, p217.
In the same report, Ms Murphy recommended a 9-week residential program at MASS in the first year followed by a 6-week residential program in the second year, with his parents to attend for some of the period.[72] She opined:
The MASS Placement intervention period of 4 weeks was not a (sic) long enough for [the Applicant] to establish independence with his skills and achieve his goals… As [the Applicant] was working on several goals during his time to maximise the support, more time would have allowed him to consolidate his toileting skills with a greater likelihood of achieving them and then transitioning them home.[73]
[72] A6 of JHB, p218.
[73] A6 of JHB, p216.
She largely maintained this position at hearing though conceded in cross-examination by Ms Blok that any intervention that is regular, consistent, intensive and includes the parents would be highly beneficial for the Applicant. Ms Murphy also recommended 90 hours of specialist behaviour intervention support and 30 hours of behaviour management training for the Applicant’s formal and informal supports. “Due to the frequency and severity and number of behaviours of concern…it is recommended that Behaviour Practitioner provide the direct training to the participant and the formal and informal supports at regular intervals for the next 12 months”.[74] (Tribunal’s emphasis)
[74] A6 of JHB, p222-223.
In its unauthored response to targeted questions from the Respondent, MASS proposed that during the 9-week program, the Applicant’s parents visit in weeks 1 and 5 and stay in new accommodation, paying their own way and providing their own food.[75]
Whilst at MASS his parents will be coached and supported to implement strategies to support [the Applicant], they will be able to focus on him and his needs as they are away from all their other day-to-day tasks that add to the overwhelming carer role. Having this space will give them a clear head to be able to take on and learn new strategies to support [the Applicant] and to have success with the support of the staff and / or Practitioner. They have the opportunity to have support to trouble shoot on the spot when something is not working and to reflect with the staff afterwards, which will boost they confidence in supporting [the Applicant].[76]
[75] A16 of JHB p292.
[76] A16 of JHB, p292.
Ms Murphy was asked to explain to the Tribunal how a longer program at MASS would help the Applicant change the behaviour of getting into bed with his Mother during the night at home. She opined that a 9-week program would give him a greater opportunity and “best chance” to imbed new behaviour due to his intellectual disability and autism. She explained repeat practice at the residential program was a key part of the strategy, noting the Applicant had round the clock support at MASS.
Ms Murphy disagreed with the proposition that the behaviour was likely to return when the Applicant went home to his mother unless something changed in the home. Despite agreeing that repetition and routine would be required to imbed new skills and behaviours, Ms Murphy seemed to resist the proposition that this would also need to occur over the course of a year in the home. She maintained throughout her evidence that the length of the stay at MASS was the critical determinant to the Applicant’s prospects for long-term behaviour change. Noting the Father’s evidence that the Applicant mostly slept through the night in his own bed at home for 3 months while the Mother was away, the Tribunal found Ms Murphy’s evidence unconvincing. She seemed unable to acknowledge or grapple with the complex family dynamics also at play involving different parenting styles, expectations, gender and/or physical size and strength.
Ms Murphy explained that some of the skills obtained at MASS have been retained in the home, namely the visual schedule. Ms Murphy also noted marginal improvement in the Applicant’s understanding of why his mother sleeps in her bed and why he should sleep in his bed. No other specific examples of skill retention or behaviour change were provided despite a clear request for details by the Tribunal.
The Father and Mother also referred to the visual schedule in their evidence, giving the impression that this was perhaps the most concrete strategy implemented to date. While the Tribunal accepts the usefulness of the strategy which actively involves the Applicant in a daily planning process, the Tribunal observes that the success of the visual schedule is clearly contingent on the Applicant’s parents and support workers consistently using it. The Tribunal is not satisfied on the evidence that appropriate strategies in relation to toileting, sleep and other behaviours have been developed or implemented with the same consistency. For example, Ms Murphy’s ‘Sleep Program’[77] appears to contain very generic suggestions about implementing sleep routines, with not a single mention of the main problematic behaviour, namely a post-pubescent boy getting into bed with his mother during the night and the mother being unable to prevent him entering her room and/or redirecting him due to his size and aggression.
[77] Document 5 of JHB 2, p48.
The Tribunal observes that environmental restrictive practices such as locked doors, windows and gates were documented in the behaviour support plan dated 28 March 2022 to prevent the Applicant from absconding.[78] It is unclear why a physical barrier, such as a lock on the Mother’s bedroom door, appears not to have been considered despite the very real concerns about the Mother’s safety and the need to deter night-time visits by the Applicant to her room. To the Tribunal’s mind, such an approach would be analogous to a lock on a bathroom door to ensure privacy and personal space whilst toileting or showering.
[78] A5 of JHB, p199.
Ms Murphy was of the view that helping to manage sexualised behaviours was “sometimes in scope” for a BSP. She acknowledged it was a behavioural issue but said it would depend on the experience of the practitioner. She indicated she could assist the Applicant with those issues though it is unclear to the Tribunal whether Ms Murphy has any relevant experience, qualifications, or training with respect to managing inappropriate sexualised behaviours.
At the commencement of Ms Murphy’s evidence, Ms Blok drew her attention to the Tribunal’s guideline on persons giving expert and opinion evidence. Ms Murphy confirmed that she had read the guideline and understood she has an overriding duty to provide impartial assistance to the Tribunal and is not an advocate for a party to the proceeding.[79]
[79]
During her evidence, Counsel appropriately put to Ms Murphy an apparent conflict of interest between her employment at MASS, her recommendation of the MASS residential program, her failure to explore or implement other options with the Applicant’s parents and her evidence before the Tribunal. Ms Murphy emphasised that the parents didn’t know about the MASS program before she met and spoke with them about it, noting it was the parents who then requested the Applicant attend MASS. The Tribunal observes this is exactly the point Counsel was seeking to make but it was seemingly lost on the witness. Ms Murphy refused to acknowledge that there might be alternatives to assist the Applicant and conceded she didn’t know of any other options. “I don’t have an alternative for you because there is no alternative”.[80] Ms Murphy appeared to take a somewhat combative and defensive approach through much of her evidence, often describing her work in general terms, failing to give specific details despite repeated requests for concrete examples and not modifying her opinion in circumstances where it appeared appropriate to do so. She also did not adequately explain the lack of regular and consistent behaviour support in the home over the past 2 years. Noting that Ms Murphy has no specialist qualifications in disability or experience in the wider disability sector, her evidence frequently had the tenor of an advocate rather than an expert. For these reasons, the Tribunal attributes limited weight to her evidence.
[80] Ms Murphy’s oral evidence.
CONSIDERATION
The Tribunal’s task in reviewing the decision is to determine whether the request for additional STA, 52 hours of sexualised behaviour therapy and an extra $2,152.80 for incontinence aids and AT over 2 years satisfy the criteria in section 34 of the NDIS Act and relevant rules, such that they justify the expenditure of public funds.
Additional Short-Term Accommodation (STA)
During the hearing and in its closing written submission, the Respondent contended that there were grounds to increase the level of STA beyond the usual 28 days contained in the relevant guideline[81], owing to the evidence of:
(a)The significant carer burnout experienced by the Applicant’s parents;
(b)The Applicant’s behaviours of concern which have resulted in his mother being injured; and
(c)The benefits the Applicant obtains from attending the MASS program.[82]
[81] Operational Guideline – Short Term Accommodation and Respite, 24 June 2022.
[82] Respondent’s closing written submissions filed 21 February 2025, p4.
The Tribunal agrees this was an appropriate concession to make and finds that 6 weeks of STA is reasonable and necessary pursuant to section 34(1) of the Act. The Tribunal wishes to be clear that this is not an endorsement of the parent’s intention to use the 6 weeks at MASS; simply that the Tribunal is satisfied they need additional respite and it is reasonable in the circumstances to provide that additional support. For reasons discussed below, there may be additional out-of-pocket expenses associated with the Applicant attending MASS for STA, which cannot be funded by the NDIS.
The Tribunal is now required to consider whether the request for an additional 21 days of STA (3 weeks in first year) and 42 days of STA (6 weeks in second year) for the purpose of attending the MASS Skills Building Program is reasonable and necessary.
School, the Transitional Rules and meaning of ‘NDIS support’
In its response to targeted questions from the Respondent, MASS provided evidence that the Applicant would “attend the Mansfield Autism Independent School from Monday – Friday, 9am-3pm to mimic his typical school routine”,[83] suggesting a school-like environment and routine “that is not academic” but rather focused on “increasing self-regulation, communication, flexibility and social skills”.[84] The picture became significantly clearer at hearing. Ms Murphy and the Applicant’s Father confirmed in their oral evidence that the Applicant attends a local school for children with autism while residing at MASS and participates in a range of social and recreational activities including yoga and massage.
[83] A10 of JHB, p271.
[84] A10 of JHB, p271.
The Respondent pointed to Rule 7.13 and 7.14 of the Support Rules which stipulate:
7.13 The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to education or training attainment), such as personal care and support, transport to and from school and specialist supports for transition from school education to further education, training or employment that are required because of the student's disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools.
7.14 The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).
The Respondent contends that the educational component of the MASS residential program is not the responsibility of the NDIS and therefore cannot be funded.[85]
[85] ST5 of JHB, p784.
Further, the Respondent submitted that several components of the MASS Residential or Skills Building Program are not NDIS supports for the purposes of section 34(1)(f) by virtue of the Transitional Support Rules. These include:
(a)School education – Schedule 2, Item 16(d)
(b)Yoga – Schedule 2, Item 9(g)
(c)Massage – Schedule 2, Item 10(a)
(d)Social and outdoor recreational activities including community visits such as going to the pool, BBQs in the bush – Schedule 2, Item 4(q).[86]
[86] Respondent’s closing written submissions filed 21 February 2025, p3.
The Respondent pointed to the decision of WVGM v Chief Executive Office of the National Disability Insurance Agency[87] where the Tribunal, differently constituted, found that WVGM’s request for STA and associated recreational activities were day-to-day costs and not a NDIS support for the purpose of the Transitional Support Rules:
The Tribunal considers that WVGM’s request for support to fund STA and associated activities, such as a “kayaking with dolphins” tour or meditation, fall within the description of the prescribed supports as referred to in this paragraph, which render them “not a NDIS support”. Therefore, the Tribunal concludes that the STA as requested by WVGM in this proceeding is not a “reasonable and necessary support” under s 34(1)(f) of the NDIS Act and should not be funded in WVGM’s NDIS plan.
[87] [2025] ARTA 47 (21 January 2025), [208]
The Respondent submitted the following:
While the request for MASS program can be differentiated from the request in WVGM for a holiday, in that the MASS program is not a holiday, the principle is the same. Because the program contains supports that fall within the description of “not NDIS supports”, it is not open to the Tribunal to find that the MASS program for 9 weeks should be funded. The Respondent contends that it would be artificial to separate the “not-NDIS supports” that form part of this program and to fund the balance separately, particularly given such a large portion of the program is educational. As such the MASS Skills Building program as a program cannot be funded as a NDIS support. (Tribunal’s emphasis)
The Tribunal was somewhat perplexed why MASS was not more explicit in their response to targeted questions that the children at their service attend a separate local school. MASS did not provide an explanation of the funding arrangements in that regard and Ms Murphy repeatedly indicated she had no knowledge of those matters. The Tribunal is satisfied on the evidence before it that MASS has packaged a range of activities or components into a standardised residential program involving a fairly predictable weekly routine based around school attendance.
Having considered the Supports Rules, the Tribunal is satisfied that the NDIS is not responsible for the educational component of the MASS program and cannot be funded. Further, due to the number of components of the residential program that are explicitly excluded by the Transitional Supports Rules, the Tribunal cannot be satisfied that the Positive Behaviour Support Residential Placement[88] or the MASS Skills Building Program is a NDIS support. Accordingly, the residential program falls foul of section 34(1)(f) of the Act and cannot be funded.
[88] See A7 of JHB.
Assuming MASS provides invoices which clearly distinguish STA component costs from other parts of the program that are not NDIS supports and/or which duplicate capacity building supports already funded in the Applicant’s plan[89], the Applicant could use his 6 weeks of STA funds to attend MASS. Any other non-NDIS supports would need to be provided in-kind, funded by another service system and/or paid by the Applicant’s parents.
[89] See Rule 5.1(c) of the Supports Rules.
For the avoidance of any doubt, had the Applicant requested an additional 3 weeks of STA in the first year, to be used with an alternative organisation, the Tribunal would not have been satisfied that section 34(1)(e) was met, noting the Applicant’s age, his attendance at school and the levels of day-to-day in-home support. This is discussed further below, under ‘New STA request in closing submissions’. Further, it was unnecessary for the Tribunal to determine the request for 6 weeks of STA funding in the second year because of relevant findings in relation to plan duration, also discussed below.
Effective and Beneficial having regard to good practice
The Applicant’s Father ran his application on the basis that a 9-week and 6-week program over 2 years would make a significant difference to the Applicant’s behaviours of concern. In his view “[n]othing else has been shown to be effective. Any other proposed approaches are simply unproven conjecture with no evidence to support their efficacy”.[90]
[90] Applicant’s closing written submissions dated 12 February 2025, p 3.

The Respondent contended, in the alternative, that the MASS residential program was not effective and beneficial having regard to current good practice, within the meaning of section 34(1)(d) of the Act. Noting how the Applicant put his case, the Tribunal will consider the issue briefly, notwithstanding the previous finding that the MASS residential program or Skills Building Program is not a NDIS support (section 34(1)(f)) and an additional 3 weeks of STA is not reasonable and necessary pursuant to section 34(1)(e).
The Tribunal accepts that the Applicant derives some clear benefits from the structure and routine in place at MASS and it affords his parents an important period of respite. However, the key issue at hearing was whether funding for a longer stay at MASS could satisfy all the criteria in section 34(1) of the Act.
Having considered the evidence, the Tribunal makes the following findings:
(a)The Applicant has attended 4 x 4-week annual programs at MASS since 2021;
(b)The Applicant’s behaviours of concern have settled, and in some instances, almost resolved while attending a 4-week program at MASS;
(c)Upon returning home, the Applicant’s behaviours slowly regress, and some behaviours have worsened in recent years, possibly due to puberty;
(d)The Applicant and his family have received very limited in-home behaviour support from Ms Murphy, except for an intensive period of support in the immediate aftermath of each residential program. For example:
(ii)Between January 2023 and December 2024 (2-year period), Ms Murphy spent a total of 61.5 hours with the Applicant and/or his parents (face-to-face or over the phone), with most of those hours used during an 8-day period;
(iii)For the same period, Ms Murphy spent 21 hours on travel, either from her home in Geelong to the Applicant’s home in Melbourne or Mansfield;[91]
(e)The Applicant has not been referred to any other program or received any other regular behaviour support interventions to assist with his behaviours of concern over the four years he has been attending MASS.
[91] Document 4 of JHB 2.
Rule 3.2 of the Supports Rules provides:
3.2. In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
The Tribunal finds only marginal differences between Dr Jarman and Dr Harbord’s expert evidence. Essentially both doctors recognise that the family derives some benefit from the Applicant’s attendance at MASS which helps to settle his behaviours while providing a period of respite for his parents. Both doctors were clear that regular behaviour support intervention was important, though it seemed Dr Jarman was unaware that the Applicant had not received regular behaviour support.
Dr Harbord’s evidence tended towards supporting regular weekly behaviour support interventions whereas Dr Jarman thought bursts of more intensive support across the year might be more effective. The Tribunal observes that both approaches have merit and reflects good behaviour support practices that one would expect to see with a child like the Applicant, whether the child was attending MASS or not. The Tribunal is satisfied that neither approach has been trialled or implemented despite the provision of the highest level of behaviour support funding in the Applicant’s plan. Neither doctor thought MASS alone could provide sustained changes to the Applicant’s behaviours.
Based on the behaviour support hours in the Applicant’s plan the Tribunal is satisfied that there are sufficient hours to implement a combination of the following interventions:
·Short periods of intensive behaviour support across the year (1 – 2 days x 4 times per year)
·A period of weekly sessions
·A period of fortnightly sessions
·A period of monthly sessions
·Care team meetings (with OT, speech therapist etc)
·Brief phone check-ins
·Multiple training sessions with support workers (which could be combined with intensive behaviour support sessions)
·Updating behaviour support plan
·Reasonable travel time.
The Tribunal was troubled by the parents’ and Ms Murphy’s apparent fixation on MASS as the only intervention that could support the Applicant’s long-term behaviour change and which would assist the Mother to better manage the Applicant’s behaviours. The Tribunal does not doubt the genuineness of the parents’ belief that MASS is the only intervention that will support their son, however the evidence suggests there are alternative forms of interventions that simply have not been attempted. Further, the Applicant may have achieved significantly greater gains following his month-long stays at MASS had there been appropriate levels of behaviour support interventions across the intervening months and years.
The Tribunal is not convinced that the current behaviour support plan/strategies are sufficiently sophisticated and/or consistently implemented in the home to support longer-term change. For example, it was unclear to the Tribunal what practical strategies Ms Murphy has provided to the Mother regarding the Applicant sleeping in her bed beyond “redirecting”, noting the Mother’s evidence that redirection no longer works due to his size and aggression.
A report by Ms Murphy dated 15 November 2023 stated that the MASS placements “were well received by [the Applicant’s] parents who noticed gains at the end of each placement. Each time [the Applicant] had difficulty transferring his skills to home due to the short length of the intervention. [The Applicant] did not have the opportunity for necessary repeat practice which need needed to consolidate his skills”.[92]
[92] A8 of JHB, p249.
The Tribunal agrees with Ms Murphy that the Applicant did not have the opportunity for the necessary repeat practice upon returning home but does not agree that this would be remedied simply by a longer stay at MASS. The Tribunal is satisfied that Ms Murphy’s single mindedness about MASS has resulted in her failure to implement her own recommendations or provide the type of behaviour support interventions described by Dr Jarman and Dr Harbord. Consequently, the Applicant has lost important opportunities at a critical time in his development to receive appropriate, regular, and consistent behaviour support interventions. The Tribunal is satisfied this can be attributed to Ms Murphy’s qualifications being limited to teaching with no clear disability experience outside of MASS, her deferral to the parents’ wishes over professional advice based on best-practice and a clear conflict of interest between her employment at MASS and the prioritisation of the residential program over any other form of behaviour support intervention. This failure is particularly concerning given the very real risks to the Mother’s safety and the Applicant’s increased sexualised behaviours.
For these reasons, The Tribunal is not satisfied that a 9-week and 6-week residential program at MASS is effective and beneficial within the meaning of section 34(1)(d). The current approach does not provide an integrated and consistent transition plan to support the transference of skills, routines, strategies, and behaviours from MASS to the home over the long-term. It is therefore unlikely to lead to sustained improvements in the Applicant’s behaviour. Section 34(1)(d) is not met.
For similar reasons, and noting the substantial cost involved in attending the MASS residential program,[93] the Tribunal could not be satisfied that the requested support represents value for money under section 34(1)(c).
[93] A7 of JHB.
New STA request in closing submissions
In his closing written submissions, the Applicant’s Father requested a further 20 days of STA over 2 years to cover camps at Flying Fox and Jewish Care. This request was not raised during the hearing and there was limited information provided about the camps. The Tribunal accepts on the limited evidence that the Applicant has enjoyed his time with both programs, and they can be accessed using STA.
The Tribunal is not satisfied that an additional 20 days of STA for this purpose, on top of the 6-weeks already found to be reasonable and necessary, satisfies section 34(1)(e) noting the Applicant’s age, his attendance at school and the levels of day-to-day in-home support. The Applicant’s parents may choose to use a portion of the 6 weeks of STA to fund camps with these organisations.
Sexualised behaviour therapy – 52 hours
The Applicant’s mother gave evidence that the Applicant has exhibited increased sexualised behaviour, particularly since the onset of puberty. This includes concerns about potential sexual behaviour towards the family dog and pressing up against some women in a sexual manner. The Tribunal is satisfied on the evidence that the Applicant’s sexualised behaviour is a behaviour of concern arising from his diagnosis of autism and intellectual disability. This behaviour has increasingly emerged during the onset of puberty.
It is not in dispute that the Applicant requires assistance to address these behaviours of concern. However, the Applicant did not provide any evidence from a practitioner in support of this request for funding or an explanation as to why 52 hours was sought. Without clear evidence as to who would provide such therapy, the Tribunal cannot be satisfied that the requested support is either an ‘evidence-based therapy’ permitted under item 34 of Schedule 1 of the Transitional Supports Rules or a support precluded under item 9(k) of the Schedule 2 of the Transitional Support Rules.
The Respondent submitted that funding in the current plan for specialist behaviour support could be used to address issues of sexualised behaviour. The Tribunal accepts Dr Harbord’s evidence that a BSP and/or psychologist would often assist adults with sexualised behaviours of concern.
The Support Rules are also relevant when considering whether the requested additional support represents value for money within the meaning of section 34(1)(c). Rule 3.1 states:
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) …
On the current evidence, the Tribunal cannot be satisfied that the additional funding represents value for money when comparable supports, such as the existing 90 hours of behaviour support and 40 hours for a behaviour management plan are designed to achieve the same outcome and at a substantially lower cost. For similar reasons, the Tribunal also finds that an additional 52 hours of sexualised behaviour therapy would duplicate other supports already funded to address behaviours of concern and therefore contravene Rule 5.1(c) regarding duplication of supports. Section 34(1)(c) is not met, and the 52 hours of sexualised behaviour therapy cannot be funded.
Whilst it is ultimately a matter for the Applicant’s parents, the Tribunal observes that behaviour support to help the Applicant manage his sexualised behaviour has been sorely missing from his life. This was particularly concerning to the Tribunal because, as a matter of common sense, it creates serious issues of risk both for the Applicant and those around him, if not managed carefully and skilfully. The Tribunal accepts the Mother’s evidence that to date, Ms Murphy has not provided any in-depth advice or strategies with respect to sexualised behaviours. It would seem the family would greatly benefit from fresh insights, perspectives, and strategies to deal with this and other behaviours of concern, noting both Dr Jarman and Dr Harbord’s evidence regarding the importance of psychological input or training when dealing with such behaviours.
Continence aids and assistive technology (AT) – additional $2,152.80
The Applicant’s father sought additional funding for $1,076.40 per annum or $2,152.80 over 24 months for incontinence products. There was no evidence before the Tribunal explaining how this figure was arrived at nor was there a report from a continence specialist despite 5 hours of funding in the current plan.
The Mother gave evidence that the Applicant requires bigger nappies now that he is older, but neither parent described any shortfall in current supplies, noting that the Applicant is already funded $8,492.50 for individual incontinence products and the family only reverted to using nappies late last year.
On the current evidence, the Tribunal cannot be satisfied that the additional funding represents value for money when comparable supports, namely the existing level of funding in the current plan, is adequately supporting the Applicant with his incontinence at a substantially lower cost. Section 34(1)(c) is not met.
Plan duration and management of funds
The Father contends that the Applicant should receive a 24-month plan, stating:
22. The security of a two year Plan would give some certainty as to a viable pathway forward for [the Applicant]. [The Applicant] needs a Plan that is coherent with a defined pathway and identifies the supports and interventions that will make this journey possible. [The Applicant] needs a firm and reliable platform on which to build these skills. This platform can only be provided by a full term placement at MASS.[94]
[94] Applicant’s closing written submissions dated 12 February 2025, p3.
The Respondent contends that because the Applicant is a child with changing development needs, a 12-month plan is the most suitable length. Further, in the Respondent’s submission, best practice suggests regular review of behaviour support and restrictive practices.
The Tribunal agrees with the Respondent that a 12-month plan is the most appropriate duration, noting the clear need for consistent behaviour support interventions across the year and the importance of reviewing the utilisation and efficacy of supports, in line with Dr Jarman’s recommendation.
The Applicant’s plan is currently self-managed, aside from funding for behaviour support which must be agency managed. It was apparent during the hearing that the Applicant’s parents may benefit from some plan management assistance, particularly for managing capacity building funds. It is unnecessary for the Tribunal to decide that issue, as the parents can discuss the matter further with the specialist support coordinator and make a request directly to the Respondent for plan management if they so wish.
DECISION
The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration in accordance with the recommendation that the following supports be funded in the Applicant’s statement of participant supports:
1.    5 hours per day, 7 days a week for 46 weeks for support worker assistance with daily living at the higher intensity rate;
2.    42 days (6 weeks) of Short Term Accommodation (STA), being 30 weekdays, 6 Saturdays and 6 Sundays;
3.    60 hours of occupational therapy;
4.    30 hours of speech therapy;
5.    5 hours for continence assessment and advice;
6.    Behaviour Support consisting of:
a.    90 hours for specialised behaviour support;
b.    30 hours training and implementing a behaviour support plan; and
c.     40 hours for skills building;
7.    120 hours for support coordination, level 3;
8.    Existing funding for continence aids and assistive technology comprising $8,492.50 per annum for washable incontinence products for children, $181.10 per annum for non-body-worn washable products for absorbing urine and faeces and $250 for low-cost AT for communication or cognitive support; and
9.    The date by which the Respondent will review the Applicant’s plan is 12 months after the day on which the reasonable and necessary supports above are included in the Applicant’s statement of participant supports.

Date(s) of hearing: 4 & 5 February 2025 – by video

Applicant: DYJR’s Father

Counsel for the Respondent: Ms Natalie Blok

Solicitors for the Respondent:
Ms Jane Thomson, Moray & Agnew

Date(s) of hearing:	4 & 5 February 2025 – by video
Applicant:	DYJR’s Father
Counsel for the Respondent:	Ms Natalie Blok
Solicitors for the Respondent:	Ms Jane Thomson, Moray & Agnew