FYSK and National Disability Insurance Agency - [2022] AATA 4414

FYSK and National Disability Insurance Agency [2022] AATA 4414 (21 December 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/3168
Re:FYSK
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Senior Member Buxton
Date:21 December 2022
Place:Brisbane

The Tribunal sets aside the decision under review and, in substitution, approves a statement of participant supports for the Applicant that specifies funding for:
(a)School-day support: 5 hours per week of 2:1 support as required (200 hours per year, to be used flexibly as required)
(b)Therapy assistance: 14 hours per week, to be effected by transferring funds for 728 hours per year (funded at $65.23 per hour) from the Applicant’s budget for Core Support, Social, Community and Civic Participation into the Applicant’s budget for Capacity Building Daily Activity (funded at $86.79 per hour);
(c)Specialist support coordination: 56 hours per week;
(d)Multi-disciplinary meetings: funding for 204 hours per year;
(e)Psychology cognitive functioning assessment: one-off payment for 9 hours;
(f)Land based physiotherapy: 70.5 hours per year (including travel);
(g)Exercise therapy: 72 hours per year (including travel);
(h)Home modifications: $6,944.00 for two ramps and inclusion of a deadlock; and
(i)Level-one transport funding.

and otherwise specifies the reasonable and necessary supports and other aspects of the statement of participant supports as set out in the decision under review (as remade on
10 October 2022).
............................[SGD]............................................
Senior Member Buxton

Catchwords
NATIONAL DISABILITY INSURANCE AGENCY – review of supports in plan - how Applicant will receive scheme funding for reasonable and necessary supports related to their disabilities – whether various supports are reasonable and necessary in accordance with s34 of the NDIS Act – decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 42D & 42D(4).
National Disability Insurance Scheme Act 2013 (Cth) ss 31(k), 33(2), 33(5), 33(5)(d), 34, 34(1), 34(1)(c), 34(1)(e), 34(2), 35(1), 100 & 209.
Cases
BIJD and National Disability Insurance Agency [2018] AATA 2971
Harris and National Disability Insurance Agency [2022] AATA 276
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Secondary Materials
National Disability Insurance Scheme (Supports for Participants) Rules 2013
REASONS FOR DECISION
Senior Member Buxton
21 December 2022
BACKground

The Applicant, a 13-year-old participant in the National Disability Insurance Scheme (‘NDIS’), seeks review of a decision made by delegate of the Chief Executive Officer (‘CEO’) of the Respondent National Disability Insurance Agency on 28 April 2021 pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’).[1] He has been assisted by his mother, Ms FYSK, in all aspects of his review application. The Applicant has diagnoses including autism spectrum disorder level 3, global development delay, attention deficit hyperactivity disorder, generalised anxiety disorder, right hemiplegic cerebral palsy secondary to cerebral hemispherectomy, PIK3CA-related Overgrowth Syndrome (‘PROS’) and shunted hydrocephalus.[2] He seeks review in relation to a decision about his approved statement of participant supports, which determines how he will receive scheme funding for reasonable and necessary supports related to his disabilities.
[1] T-documents lodged on 16 June 2021 (“T”), T2, Internal Review Decision, page 49.
[2] Respondent’s Statement of Facts, Issues and Contentions, 11 July 2022 (“SFIC”), [5].
A hearing of the review application was conducted by the Tribunal on 19 and 20 July 2022 by video-link using an electronic platform. Since that date, the parties have each provided to the Tribunal additional substantial written submissions[3], the most recent of which was lodged on behalf of the Applicant, by his mother, on 7 November 2022. In reaching this decision the Tribunal has had regard to the sworn evidence received during the hearing together with various documents, including reports from medical and allied specialists and the submissions from the Applicant and the Respondent. The Applicant provided reports from a range of treating specialists, both past and present, and during the hearing oral evidence was adduced from the following:
·Ms FYSK (the Applicant’s Mother);
·Mr Stephen Heydt (Clinical Psychologist);
·Ms Nicole Haynes (Paediatric Physiotherapist); and
·Ms Camilla Williams (Exercise physiologist).
[3] Respondent’s Closing Written Submissions, 13 September 2022 (P1), and supplementary submissions, 2 November 2022 (P2), Respondent’s correspondence, 14 October 2022 in relation the remittal, with attachments (P3), Applicant’s closing submissions, 16 October 2022 (p4). The Tribunal has marked these post-hearing documents exhibits P1 – P4.
A number of further decisions relating to the Applicant’s funded supports have been made by the Respondent since the reviewable decision was made in April 2021.
On 27 October 2021 the Tribunal remitted the decision to the Respondent for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’). Following the remittal, on 3 November 2021, a delegate of the CEO made a new decision providing for the Applicant’s statement of participant supports to extend the review date of the plan by 12 months and to include funding for the following supports:[4]
[4] Respondent’s SFIC, 11 July 2022, [11]; T2, Internal Review Decision, page 49.
(a)48 hours of occupational therapy;
(b)55 hours of hydrotherapy;
(c)26 hours of music therapy;
(d)90 hours of specialist behaviour intervention support;
(e)30 hours of training in behaviour management strategies for all formal and informal supports;
(f)40 hours of individual social skills development;
(g)ankle-foot orthoses; and
(h)(two) car harnesses.
On 17 December 2021, the Tribunal remitted the decision of the Respondent dated

3 November 2021 for reconsideration pursuant to section 42D of the AAT Act. A delegate of the CEO made a new decision on 24 December 2021 providing for the Applicant’s statement of participant supports to extend the review date of the plan by 12 months and include the following supports:[5]
(a)consumables (continence products) totalling $3,430.66;
(b)6 hours of domestic assistance;
(c)Short Term Accommodation at Level 3, 2:1 overnight support for 3 nights per month (totalling 36 nights) at one x weekday rate per month, one times Saturday rate per month, one times Sunday rate per month;
(d)car harness x one totalling $1,663.50 (instead of the previously agreed car harness);
(e)a comprehensive home assessment by an occupational therapist to assess the need for home modification (quote to be provided); and
(f)support coordination comprising of 20 hours of a Level 3 Specialist Support Coordinator.
[5] Ibid, [14] - [15].
On 9 May 2022, the Tribunal remitted the decision of the Respondent for reconsideration pursuant to section 42D of the AAT Act. A delegate of the CEO made a new decision dated 16 May 2022 to extend the review date of the plan by 12 months and include the following supports:[6]
[6] Tender bundle lodged 15 July 2022 (“TB”), R3, NDIS Plans varied in accordance with s42D(3) of the AAT Act., pages 316-326.
(a)228 hours of support worker level 3 assistance per year at the Assistance with Self Care (weekday daytime) rate;
(b)114 hours of support worker level 3 assistance per year at the Assistance with Self Care (weekday evening) rate;
(c)3558 hours of support worker level 3 assistance per year at the Assistance Access to Community, Social and Recreational Activities (weekday daytime) rate;
(d)180 hours of support worker level 3 assistance per year at the Assistance with Self-Care (Saturday) rate;
(e)420 hours of support worker level 3 assistance per year at the Assistance Access to Community, Social and Recreational Activities (Saturday) rate;
(f)171 hours of support worker level 3 assistance per year at the Assistance with Self-Care (Sunday) rate;
(g)399 hours of support worker level 3 assistance per year at the Assistance Access to Community, Social and Recreational Activities (Sunday) rate;
(h)60 hours of support worker level 3 assistance per year at the Assistance Access to Community, Social and Recreational Activities (Public Holiday) rate;
(i)Purchase of a Josi Stroller as per quote dated 12 April 2022; and
(j)$150 for repairs/maintenance of the Josi Stroller;
IMPLEMENTATION ERROR
As a result of the section 42D remittal by the Tribunal on 9 May 2022, the Respondent implemented a NDIS Plan dated 16 May 2022.[7] The total value of the supports under the plan was described in the Respondent’s submissions as $770,885.17,[8] but appears to in fact be $777,137.57, according to a printed version of the plan itself.[9] An error occurred when issuing the 16 May 2022 plan where the supports were implemented over and above those which were already included in the earlier 3 November 2021 plan,[10] such that a total of $819,188.75 in funding was made available to the Applicant at that time.
[7]     Respondent’s Closing Written Submissions, 13 September 2022, [14].
[8]     Ibid, [15].
[9]     Ibid, n6.
[10]    Ibid, n7, [17].
For reasons known only to the Respondent, this error has been described in the Respondent’s submissions and correspondence as a “mutual error”. Perhaps the Respondent intended to convey, by this awkward label, that the hearing had proceeded on the basis of a mutual misunderstanding of the level of funding available to the Applicant. It is unclear how the incorrect implementation of a decision entirely within the control of the scheme regulator could be said to be “mutual” and, therefore, it is difficult to follow how the Respondent’s error could properly be described as “mutual”. Nonetheless, not much turns on this and there is no suggestion by the Respondent that any overspend has occurred as a result of the Respondent erroneously, but inadvertently, providing the Applicant with access to additional funding for a period. The Respondent submitted that the error resulted in the level of funding for support worker supports to be incorrect, and caused the following issues:[11]
(a)There was a duplication of supports, which is contrary to section 34(1)(c) of the NDIS Act; and
(b)The 16 May 2022 plan did not reflect the parties’ agreed understanding.
[11] Ibid, [17].
None of this now impacts the reviewable decision. Although the hearing was conducted on the basis that the supports agreed to under remittal on 9 May 2022 were in substitution of the support worker supports that were included in the 3 November 2021 plan, rather than in addition to,[12] the Respondent has since sought to have the decision remitted for further reconsideration under s 42D, in order that the mistake be corrected. The Tribunal remitted the decision to provide an opportunity for this issue to be addressed.
[12] Respondent’s Closing Written Submissions, 13 September 2022, [18].
On 10 October 2022, a further decision was made which is consistent with the factual basis upon which the hearing was conducted.[13] Pursuant to section 42D(4) of the AAT Act, the delegate’s decision of 10 October 2022 is taken to be the decision for review by the Tribunal. The total funding is $673,453.75, which the Tribunal understands to have been the funding intended to be provided in the 16 May 2022 plan. Where it is necessary to compare the decision under review with evidence in these proceedings about reasonable and necessary supports, to determine if additional supports are required, the Tribunal has adopted the particulars of supports in the decision under review provided in Annexure A to the letter from the Respondent’s solicitors, addressed to the Tribunal, and dated 14 October 2022.
[13] Applicant’s NDIS Plan issued 10 October 2022.
Although this error has now been corrected, it is reasonable to conclude that the consequences of the Respondent’s error have not been particularly easy to navigate for the Applicant’s mother, who is also his advocate in these proceedings, particularly when the Respondent applied the unfortunate label of “mutual” to its own mistake. In addition to the Respondent’s implementation error, Ms FYSK has also had to contend, during the course of this review, with the Respondent’s production of over 100 pages of statements of facts, issues and contentions, with addendum, written submissions, tables and appendices.[14] This led to the need, for example, for the Respondent to clarify that certain agreed supports could me met from available funding.[15] The Respondent may wish to consider whether, in future reviews, it can best assist the Tribunal, and discharge its statutory duties generally, by distilling such information and submissions if, during the progress of a matter to hearing and thereafter, the Respondent’s written case has become cumbersome.
[14] Respondent’s SFIC dated 6 April 2022 (29 pages), and amended SFIC dated11 July 2022 (29 pages), with addendum dated 11 July 2022 (9 pages); Closing Written Submissions dated 13 September 2022 (28 pages), supplementary submissions dated 2 November 2022 (8 pages) and correspondence dated 14 October 2022 in relation the remittal, with attachments, (together 13 pages). A joint schedule of supports, circulated on 18 July 2022, provides a summary of some of this information.
[15] E.g. the Josie Stroller, and replacement glasses, allowed for in the decision under review as part of the “floating” capital expenditure budget - Respondent’s Closing Written Submissions, 13 September 2022, [10]-[11].
The Applicant’s mother discharged the difficult, but in this case unavoidable, dual roles of representative for the Applicant and witness of fact on his behalf with articulate dignity. The Respondent was ably represented by counsel. The Tribunal is grateful to the representatives on both sides of the record for their careful assistance.
ISSUES FOR DETERMINATION
The issues to be determined by the Tribunal is whether the following supports, which have not been included pursuant to the decision under review, are reasonable and necessary in accordance with section 34 of the NDIS Act:[16]
[16] Respondent’s Closing Written Submissions, 13 September 2022, [4].
(a)School-day support: 10 hours per week of 2:1 support as required (with 70 hours per week of 2:1 support Monday to Friday, for seven hours each school day having already been accepted by the Respondent and funded in the Applicant’s current plan);
(b)Therapy assistance: 18 hours per week;
(c)Specialist support coordination: 70 hours per week;
(d)204 hours of multi-disciplinary meetings;
(e)Positive behaviour support for support workers: 60 hours per year;
(f)Managing aggression training for support workers: (increase of 54 hours per year);
(g)MAPA and MAYBO training;
(h)Psychology cognitive functioning assessment: 9 hours per year;
(i)Land based physiotherapy: 70.5 hours per year (including travel);
(j)Exercise therapy: 72 hours per year (including travel);
(k)Home modifications: $6,944.00 for two ramps and inclusion of a deadlock; and
(l)Transport: support worker to travel on the school bus.
In order to determine whether a support should be included in the statement of participant supports approved in the Applicant’s plan under subsection 33(2) of the NDIS Act, the Tribunal must have regard to the matters set out in subsection 33(5) of the NDIS Act and determine whether it is satisfied that the support is a “reasonable and necessary support” in accordance with the criteria in subsection 34(1) of the NDIS Act. The word “reasonable” is informed by the criteria set out in subsection 34(1) of the NDIS Act, although its meaning is not exhausted by these factors. In relation to how the CEO’s function works in practice, Mortimer J said in McGarrigle v National Disability and Insurance Agency (“McGarrigle”) [17]:
“…the text and context of s 33(5)(c), read with s 34(1) indicate that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described… then the question for the CEO (or the delegate or Tribunal) is whether he or she is satisfied that support, as identified, is reasonable and necessary for that particular participant.”
[17] [2017] FCA 308, [93].
The Tribunal is to be positively satisfied that the criteria have all been met in order to approve that disputed support for inclusion in the Applicant’s statement of participant supports.[18]
[18] BIJD and National Disability Insurance Agency [2018] AATA 2971, [49].
Subsection 33(5)(d) of the NDIS Act requires the CEO to have regard to any criteria prescribed by the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Rules’) in relation to the manner in which the reasonable and necessary supports will be funded. The Rules made pursuant to subsections 34(2) and 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant provisions are included within parts three and five of the Rules:
Value for money
3.1   In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a)     whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)     whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)     whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)     for supports that involve the provision of equipment or modifications:
(i)      the comparative cost of purchasing or leasing the equipment or modifications; and
(ii)     whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e)     whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)      whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
…
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)     for a participant who is a child:
(i)      that it is normal for parents to provide substantial care and support for children; and
(ii)     whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii)     the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)    whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
…
General criteria for supports
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.
Consideration of reasonable and necessary supports
School-day support

This support relates to additional funding said by the Applicant to be required for support workers on what would ordinarily be a school day but when the Applicant is not in attendance at school. The Respondent accepts that the Applicant requires 2:1 care during waking hours and that Ms FYSK is not to be one of the people providing that support. The Applicant is not funded for support on a school day when he is expected to be in attendance (other than an issue dealt with below that relates to his travel to and from). The Applicant’s support worker funding assumes that he will attend school for five days per week during term time.
It is the Applicant’s case that additional funding for support workers is needed during term time because, although FYSK is scheduled to be at school, there are various reasons why, with some (relative) predictability, that assumption is unreliable. Ms FYSK stated that, on occasion, FYSK has been excluded from school and stated that with this, and sickness and medical appointments, there was no provision for any additional support workers for such events. Whilst she did not provide an estimate of the number of days when this had occurred in, say the term previous to the hearing, she noted that he had been excluded twice, once at the end of last term and again a few days prior to hearing,[19] which was confirmed by

Mr Heydt,[20] and was away from school on a normal school day when sick or to attend appointments.[21]
[19]    Transcript P20, lines 35-42.
[20]    Transcript P54, lines 10-15.
[21]    Transcript P25, lines 2-22.
The Applicant has identified the need for a further 5 hours per week of 2:1 support (10 hours per week in total) on weekdays during terms time (40 weeks per year) as required.[22] It is anticipated by Ms FYSK that this funding will be needed flexibly when FYSK misses school due to medical appointments (scheduled or unscheduled) or sickness, or future exclusion from school.
[22] Transcript P21, line 30.
The Respondent submitted provision of additional funding for five hours of additional 2:1 support workers would amount to a duplication of the Applicant’s core support budget, but not because that budget already takes account of school absences for FYSK. Rather, the Respondent submitted that this prospect is a contingency rather than a certainty and, in case of that contingency, alternative supports should be utilised. The precise nature of the alternative supports proposed by the Respondent in order to avoid duplication are two-fold: Mr FYSK, the Applicant’s father, should provide informal support for his son when his work allows, and flexible funding, allocated in the plan for short-term accommodation, could be diverted to this contingency, should it arise.
The Respondent’s submissions do not seem to reflect either the intent of the statutory scheme nor the reality of family life. Short-term accommodation has been funded, for the Applicant, on the basis that it is a reasonable and necessary support to facilitate respite for the Applicant and his informal supports and to facilitate his disability-related needs. By including this funding, the delegate has determined that STA is needed, not that it is a contingent need that can be utilised each term if the Applicant is fortunate enough to not require time away from school. The funding is flexible to allow for the appropriate choice and control to be exercised by those supporting the Applicant – his immediate family – as to when and how it is used. However, the Tribunal does not accept that this funding is flexible because the family may choose to divert in in order to fund another reasonable and necessary support that has not been funded in the Applicant’s plan because the family were not able to quantify the additional need with absolute certainty.
The alternative submission, that funding for extra support hours would lead to duplication because that support could be provided by an informal support such as Mr FYSK (at no cost), also does not follow. The more pertinent question is what level of informal support is reasonable for families to provide. In this case, Mr FYSK may sometimes be able to provide care for his son when both son and Dad spend time at home on a school day. An additional support worker would still be required. Mr FYSK could, on occasion, be one of the two supports necessary for the proper care of the Applicant during his waking hours, but not both.
In the absence of a sensible submission from the Respondent as to how to factor this expectation into the reasonably quantifiable need for the Applicant to be supported on days he is absent from school, the Tribunal has taken, as a starting point, the calculation proposed by the Applicant and made a reasonable assumption, within the limited available evidence, as to the likely frequency of school absence for the Applicant when Mr FYSK cannot provide care. The Applicant submitted that the request for five hours per week was based on historical numbers of days absent from school[23] but no particulars of these historical numbers was provided. Five days per term is a workable starting point to allow necessary support for the Applicant during such absences when Mr FYSK cannot assist at all or can be only one of the two people necessary to support FYSK. The Respondent’s submission that the care ratio could drop to 1:1 when the Applicant is with Mr FYSK seems at odds with its acceptance of the Applicant’s need for 2:1 care, and the Tribunal notes that this was not put to Ms FYSK, nor was the Tribunal referred to any evidence[24] as to the Applicant’s current needs.[25]
[23] Applicant’s closing submissions, dated 16 October 2022, para [13].
[24] Ms Dunn completed two reports in 2021 (TB, A27, pages 204-220; A29, pages 224-228) but did not give evidence at the hearing as to the Applicant’s current needs.
[25] For completeness, it is not for the Tribunal to determine the identity of the support worker, or whether that worker is, or can be, familiar to the Applicant. However, the Applicant’s post-hearing submissions in this regard, which the Respondent has invited the Tribunal to reject, seem to go no further than to raise this issue in order to demonstrate that emergency funding with unfamiliar support workers is not at all comparable to the respite purpose of the STA funding which the Respondent suggested was analogous.
On the basis of the conclusions drawn from the available evidence, the Tribunal finds that the Applicant’s approved statement of participant supports is to include funding to cater for five days of unexpected absence from school in an average term (one day every fortnight, with additional time to be supplemented by Mr FYSK when available, noting that this might sometimes be more or less frequent each term, and could be accessed flexibly across the school year) of 2:1 support. An additional 10 hours in total on each such day would be required for the two support workers to be present for the Applicant’s additional waking hours when he would otherwise be expected to be at school. This amounts to 50 hours per term, or 200 hours per year, of support at the (already established) level 3 support worker rate in addition to his current funding for support hours[26]. The Applicant’s informal supports, and any other available flexible funding, could meet any shortfall before the Applicant’s next plan re-assessment, by which time more data will be available as to how this support has been utilised.
[26] Noting that funding was incorrectly described by the Respondent as 3558 hours, but the Respondent concedes a typographical error in this regard and accepts this should properly be described as 3588 hours.
Therapy assistance
The Applicant seeks 18 hours per week of therapy assistance to train support workers to deliver positive behaviour support, occupational therapy, physiotherapy, exercise physiology and any other professional disciplines he is funded to access such as music therapy and hydrotherapy. The evidence during the hearing was to the effect that he was accessing 14 hours of therapy assistance support per week at that time, although the Applicant, though his mother, submitted after the hearing that accessed hours had increased to 18 hours per week post-hearing. The Respondent was not able to test this evidence either with Ms FYSK or with Mr Heydt, clinical psychologist, who gave sworn evidence on this issue.
The Applicant’s request for an increase to 18 hours is not supported by expert evidence that the increase is necessary. However, having regard to the evidence given by Mr Heydt, to the effect that therapy assistance of 14 hours per week was providing effective and beneficial for the Applicant, the Respondent conceded[27] that the Applicant should have access to 14 hours of funding per week for therapy assistance by transferring funds for 728 hours per year (funded at $65.23 per hour) from the Applicant’s budget for Core Support, Social, Community and Civic Participation into the Applicant’s budget for Capacity Building Daily Activity. The effect of the transfer of hours, difference in rate (to that of a support worker at $86.79 per hour) and use of the therapy assistant to provide both training to support workers and support of the applicant simultaneously. The Tribunal is satisfied that this support is reasonable and necessary and finds that the Applicant’s approved statement of participant supports is to include the transfer of funding proposed by the Respondent, with the requisite increase in funding required to ensure that the higher hourly rate required for this task is budgeted for in the increased capacity building funding.
[27] Respondent’s closing submission, 13 September 2022, [62].
The Respondent will need to be mindful of the total number of hours available in the core and capacity building budgets when implementing this decision. The Tribunal has made other findings that have the effect of increasing the core budget, and the capacity building budget. It is the intention of the Tribunal that, after the transfer from the Applicant’s core budget to his capacity building budget relating to therapy supports, the Respondent will also give effect to the Tribunal’s other determinations. If an assumption made by the Tribunal about existing funds becomes incorrect after this transfer, the Respondent is to ensure that the Tribunal’s decision is implemented in a way that ensures this is corrected and adequate funds are available to fund all the Applicant’s reasonable and necessary supports, as determined by the Tribunal, in addition to those already funded in the decision under review.
Support co-ordination
The Applicant is funded for 20 hours of Level 3 Support co-ordination and 36 hours of Level 2 Co-ordination. The Respondent submitted this level of funding was sufficient but made an alternative submission that 50 hours of support co-ordination at the specialist, or level 3, rate may also suffice. The Applicant sought an additional 30 hours of support co-ordination at the level of specialist, or level 3.
It is not the role of the NDIA to ensure the availability of a support co-ordinator or to fund more co-ordination than is related to the participant’s disability so that a provider will agree to take on a particular participant as a client. However, it is apparent from the evidence of Ms FYSK and Mr Heydt that support co-ordination is being undertaken, without adequate funding, by each of them[28]. A specialist with the appropriate qualifications and skills, ideally with a background in social work or psychology, could provide the necessary conduit between therapists and carers, both formal and informal, and manage the flow of information necessary to monitor the dynamic needs of the Applicant as they develop and connect him with the supports necessary to address those needs.[29]
[28] Transcript P68, lines 1-9.
[29] See evidence of Mr Heydt, esp. Transcript p 66 from line 2.
The Applicant requires his capacity building supports to be delivered in an holistically beneficial manner. The principle in subsection 31(k) of the NDIS Act provides that planning and management of funding for supports should, as far as reasonably practicable, “provide the context for the provision of disability services to the participant and, where appropriate, coordinate delivery of disability services where there is more than one disability service provider”. When this principle is read in conjunction with the provisions of Section 34 of the NDIS Act, and the relevant rules, the scheme plainly contemplates the provision of reasonable and necessary support co-ordination to be funded in appropriate cases. The Applicant is a child and requires support co-ordination to be undertaken on his behalf. In the event, he lives with his family and his mother, in particular, is dedicated to caring for the Applicant and, where possible, to promoting the building of his capacity. She suffers from ill health, and has caring responsibilities for the Applicant’s twin brother, particularly whilst their father is absent for work. It is beyond reasonable expectations that the Applicant’s mother undertake, either single-handedly or without sufficient assistance, the role of support co-ordinator in circumstances where the Applicant’s needs are genuinely complex and dynamic, where she works herself and where both parents have responsibilities to the Applicant’s sibling.
The Tribunal finds both the medical and anecdotal evidence, as to the need for extensive support in the co-ordination of the Applicant’s supports, to be compelling. The Tribunal notes the Respondent’s submission that adequate funding for support co-ordination is already provided. However, the Tribunal is satisfied that the complexity of the constellation of the Applicant’s needs, therapy and treating teams requires the support of the most experienced of support co-ordinators. Both Mr Heydt and Ms FYSK gave evidence to the effect that it was difficult to arrive at a precise figure but, with adequate specialist support co-ordination of about one hour each week, the level two funding for support co-ordination could be dispensed with. The Tribunal accepts this evidence. The current plan allows for a total of 56 hours of support co-ordination, but at variable rates. The Tribunal is not satisfied that any more or fewer hours are needed than currently funded.
On the basis of the conclusions drawn from the available evidence, the Tribunal finds that the Applicant’s approved statement of participant supports is to include funding for specialist support co-ordination, at level three, sufficient to provided 56 hours in total, annually to provide for the co-ordination of the Applicant’s complex needs. It follows that the currently funded support worker hours at the lower rate are no longer necessary.
Multi-disciplinary meetings
The Applicant seeks funding for an additional 204 hours annually to facilitate weekly meetings between four allied health professionals in order to co-ordinate and update their approach to supporting the Applicant. The Respondent submitted that increasing the current budget would lead to duplication of funding as some funding already exists for such meetings and some funding may be provided by Medicare. The Respondent also submitted that part of this role can be undertaken by a support co-ordinator[30]. The latter submission appears to misunderstand the role of a support co-ordinator, which is to ensure access to supports and assist in selection, continuity and collaboration. That understanding is consistent with both the role description in the Pricing Arrangements and the evidence of Mr Heydt on the issue.
[30] Respondent’s closing submission, 13 September 2022 [78] and [80]
The purpose of allied health professionals meeting is to compare notes and plan for the Applicant’s future capacity building. The support co-ordinator is not engaged to plan for the delivery of future capacity building services and, in particular, to determine the nature of those services. To the extent that this interpretation conflicts with the respondent’s submissions, those submissions are rejected.[31]
[31] Respondent’s closing submission, 13 September 2022, [79]
There is a natural tension when supports funded by the NDIS to build capacity in participants are provided by those who also support those with health issues. The NDIS does not fund supports more appropriately funded by systems such as Medicare, and it is not part of the role of the NDIS to subsidise a health system which may not be able to deliver on a health need for someone who is also a participant in the scheme. However, that natural tension has no role to play in this particular case. The Applicant is not unwell, and he does not have health issues that his allied professionals are required to “treat”. He has disabilities and this team of professionals work together the build his capacities. Each needs to push or pull in the same, or at least a complementary, direction. To do so, they must understand one-another and together track the progress of the Applicant. Rather than duplicate supports or challenge the notion of value for money, this proposed support is designed to ensure that the funds spent on each service work together to ensure best practice.
The Tribunal finds that the Applicant’s approved statement of participant supports is to include funding for an additional 204 hours annually to facilitate weekly multi-disciplinary meetings between the allied health professionals supporting the Applicant.
Support workers, family members and training
The Applicant currently has 30 hours of funding in his plan for training in behaviour management strategies for both his paid (formal) support workers and his family and friends (informal supports).
The Applicant submits that additional funding is required to adequately train and support the formal and informal supports in the Applicant’s daily life. The Applicant, through his mother, sought:
a.60 hours for four support workers to each attend 15 hours of positive behaviour support training;
b.84 hours of training for support workers in managing aggression (being 54 hours of training for in addition to the currently funded 30 hours);
c.Funding to attend two courses identified as “MAPA” and “MAYBO” training.
The Applicant proposes that four staff employed by or contracted to support worker provider “Healthy Minds” receiving 15 hours of positive behaviour support training funded by through the Applicant’s plan so that they can obtain the general training they need that would assist in working with participants including the Applicant and to be accredited as level 3 workers.[32] These workers do not work exclusively for the Applicant, nor do they work exclusively for Healthy Minds.[33] Presumably, level 3 support workers are paid more than level 2 support workers because, as a condition of receiving that higher rate, they are already more extensively qualified or trained.[34] It would be a surprising interpretation of the participant focussed scheme for one individual participant’s funding to be used to benefit a supplier of support workers who can the charge out those workers at a higher rate. Mr Heydt suggested that other plans for individual participants did include such funding[35], but the Tribunal is to consider this particular participant. The Tribunal finds that there is no direct correlation between the cost, and the Applicant’s disability. It follows that 60 hours for four support workers to each attend 15 hours of positive behaviour support training is neither necessary for the Applicant nor a reasonable use of participant funds.
[32]    Transcript P57, lines 1-20.
[33]    Transcript P56, lines 35-47.
[34]    Discussed by Mr Heydt at Transcript P 56 lines 7-30.
[35]    Transcript P 55, lines 4-10.
There may well be a general shortage of skilled support workers in Australia,[36] but the Tribunal does not accept that the legislative scheme is designed to provide funding to overcome this general workforce shortfall through the individual plans to provide tailored supports to participants.
[36] See discussion by Mr Heydt at Transcript P59.

The Applicant submitted that it was appropriate to consider together the proposed supports of 84 hours of training for support workers in managing aggression and attendance at MAPA and MAYBO training (to be quoted). The Applicant has 30 hours of available funding, related to his Positive Behaviour Support Plan, for the Positive Behaviour Support Practitioner to provide some training or intervention to support the Applicant’s formal and informal supports in dealing with the Applicant’s aggression and escalating behaviours. There is ample evidence to demonstrate that family members, support workers and school staff have been injured as a result of behaviours related to the Applicant’s disability and that such training is therefore necessary.[37]
[37] Including in the various reports of Ms Wall, Developmental Psychologist (TB, A19, pages 144-148), Ms Ruzsicska, Behaviour Support Practitioner (T3, page 64; TB, A11, pages 91-106) and Mr Heydt, Clinical Psychologist (TB, A16, pages 127, A18, pages 132-143, A24, pages 173-199, A30, pages 229-237).
There is some conjecture in the material as to whether the additional 54 hours has already been agreed to and funded. The Applicant asserted it had been agreed to but not funded,[38] however the Respondent submitted that it had not been, and should not be, funded.[39] Annexure A to the letter from the Respondent’s solicitors, addressed to the Tribunal, and dated 14 October 2022 identifies 30 hours only for “behaviour management plan including training”. This is consistent with the description (set out earlier in these reasons) of additional supports as they have been determined, and added over time, to lead to the decision under review as remade on 14 October 2022. The Tribunal accepts this as correct and considers that the question for the Tribunal is whether it is reasonable and necessary for a further 54 hours to be funded (84 hours in total).
[38] Applicant’s closing submissions, 16 October 2022, para [74].
[39] Respondent’s closing submissions, 13 September 2022, paras [102] – [104].
There is no doubt that the Applicant would benefit from family and friends receiving training and information that assists the Applicant to be safe at home and to sustain his living arrangements within his family home. Some training is funded. The Tribunal must also consider what it is reasonable to expect families and carers to provide.[40] Each person caring for a participant with needs may have a different experience and benefit from different training and support. The scheme is expected to provide for the Applicant’s disability-related needs, but it is reasonable for the Applicant’s family to meet their own needs in responding to challenging behaviours. At least to some extent, these needs arise in all families. The current funding for 30 hours of behaviour-related training for family and friends acknowledges the very real challenges and needs generated by the Applicant’s specific behaviours. Should these training needs vary in the future, it is open to those supporting the Applicant to provide specific evidence demonstrating that additional funding is needed. The Tribunal is not satisfied on the evidence that funding in addition to the 30 hours provided for in the Applicant’s current plan is reasonable and necessary.
[40] section 34(1)(e) of the NDIS Act.
There was insufficient detail as to the cost or availability of the MAPA and MAYBO training modules. The Respondent suggested to Ms FYSK and Mr Heydt during the hearing that these training modules were not “accredited”, presumably in order to invite the Tribunal to draw something from this. It was unclear by which body or authority a training course should be “accredited” in order to be funded under the scheme, and the Respondent did not seek to rely on any statutory limitation upon funding a course that was not accredited. Should the Applicant provide further information on the costing and availability of this course in the future, funding should not be rejected merely on the basis of the status of the training course if the Respondent is otherwise satisfied that attendance represents a reasonable and necessary support for the Applicant. In this case, the state of the evidence does not admit of that conclusion, and it follows that the Tribunal is not satisfied that this is a reasonable and necessary support to be specified in the statement of participant supports for the Applicant at this time.
Cognitive Assessment
The applicant seeks 9 hours of psychology cognitive functioning assessment (8 hours of assessment and 1 hour of travel). The Applicant submitted that, due to the FYSK’s PIK 3CA overgrowth related syndrome (PROS) and subsequent left brain hemispherectomy it is critical to monitor the applicant’s cognitive development to ensure he is being supported where necessary and challenged as his brain continues to mature and diversify activity.
Ms Wall (referred to in later documents as Ms Mackay) opined that the Applicant was not suited to undertaking a standardised cognitive assessment, and that is not the support identified by the Applicant as reasonable and necessary. A non-standardised assessment, to provide a comprehensive picture of the Applicant’s cognitive functioning and needs “may be warranted” (according to Ms Wall), and funding has been sought for the Applicant to have this undertaken at a time when he has transitioned from paediatric psychology care, previously provided through Autism Partnership (Ms Wall) to adolescent care provided through Healthy Minds (Mr Heydt). Mr Heydt was not asked, expressly, if an assessment was required now. However, the Tribunal is prepared to conclude, based on the complex confluence of the Applicant’s cognitive needs, the breadth of his support team and the need to ensure funded supports are consistent with best practice, that funding should be made available in the applicant’s plan for the necessary non-standardised cognitive assessment which will be undertaken when his treating psychologist recommends. This is one-off funding. If it is not used in the current plan (either because the Applicant is not ready, or because of other factors beyond his control, such as other health issues or the availability of the assessor) it can be rolled over to his next plan.
The Tribunal finds that the Applicant’s approved statement of participant supports is to include funding for a one-off inclusion of an additional 9 hours of psychology support (8 hours of assessment and 1 hour of travel) to facilitate non-standardised cognitive functioning assessment of the Applicant.
Capacity Building
The Applicant currently has 273 hours of therapy funded in his plan, which equates to an average of about five hours each week (prior to the adjustment identified above relating to therapy assistance). This fund includes a total of 177 hours allocated across the disciplines of occupational therapy (48 hours), hydrotherapy (55 hours) and music therapy (26 hours) and speech therapy (48 hours). There is no funding allocated expressly for either physiotherapy or exercise physiology, however, the remaining 96 funded hours of capacity building, which equates to a little less than two hours each week, can be used flexibly.
The Respondent has submitted that the reasonable and necessary portions of the Applicant’s requests for inclusion of additional hours of capacity building funding for allied services including exercise physiology and physiotherapy can be accommodated within the 96 hours of flexible funding. The Applicant submits that additional funding is required to adequately build his capacity through these disciplines.
The Tribunal has considered the evidence in relation to the Applicant’s various needs for capacity-building supports. For the reasons set out below, the Tribunal has concluded that the supports for 70.5 hours of physiotherapy and 72 hours of exercise physiology are reasonable and necessary for the applicant, and notes that, together, this exceeds the available flexible funding by 46.5 hours. The Applicant did not identify any other need for to which this flexible funding should be applied. It follows, in order to avoid duplication, that funding for only an additional 46.5 hours in capacity building supports should be added as a result of the below findings as to reasonable and necessary physiotherapy and exercise physiology supports.
Physiotherapy
The Respondent submitted that 45.5 hours of funded land-based physiotherapy was sufficient to build the capacity of the Applicant.[41] The Respondent submitted that a figure of 45.5 hours annually for physiotherapy was “reasonable and necessary having regard to the applicant’s disability-related needs”.[42] This would be comprised of 40 hours physiotherapy, 1.5 hours for completing an end of plan report, and 4 hours for multidisciplinary team meetings.[43]
[41] Respondent’s SFIC, 11 July 2022, [63] – [64].
[42] Ibid,[62].
[43] Ibid.
The parties disagree as to the addition of funding for a further 10 hours to conduct intensive programs during the school holidays, five hours of travel and other costs and ten hours of report writing, communication and other non-face-to-face services (when considered together, a total of 70.5 hours of physiotherapy support annually).[44]
[44] Ibid, [55].
Ms Hayes, physiotherapist, provided two reports, the first dated 28 October 2021[45] and the second dated 11 February 2022.[46] The main difference in the recommendations made by Ms Hayes is a reduction in the recommended hours to be funded for travel time (ten hours in the October 2021 report)[47] and non-face-to-face hours (fifteen hours originally recommended).[48] Otherwise, Ms Hayes continues to recommend that these costs be funded and that intensive school holiday programs are required for the Applicant.[49]
[45] TB, A25, Report of Nicole Haynes, paediatric physiotherapist, pages 200-202.
[46]    TB, A32, Report of Nicole Haynes, paediatric physiotherapist, pages 262-265.
[47]    Ibid, n45, A25, page 202.
[48]    Ibid.
[49]    Ibid, n46, A32, page 265.
The Applicant submits that intensive physiotherapy which takes place during school holiday period is necessary as it is essential to maintain FYSK’s engagement in therapy, as well as engage in activities and focus on goals, which he is unable to do without specialist assistance due to his disabilities.[50] The Applicant submits that without the sustainability of the intensive physiotherapy over the school holidays, FYSK will progressively deteriorate and will eventually require increased funding and greater dependency on NDIS.[51]
[50] Joint schedule of supports, page 5.
[51] Ibid.
The Respondent submits that to provide funding as sought for the physiotherapy would be a duplication of supports,[52] as the Applicant presently has funding within his capacity building supports for 96 hours of “other therapy” which can be used flexibly for “support and assistance from Allied Health Professionals for skills development, training, assessment and physiotherapy”.[53]
[52] Respondent’s Closing Written Submissions, 13 September 2022, [121].
[53] Ibid, [112] – [113].
The evidence of Ms Hayes was not challenged by the Respondent, other than to a limited extent through cross-examination, and no conflicting evidence was produced to the Tribunal. There is no proper basis for the Tribunal to reject the recommendations she has made, that the intensive school holiday programs are required to maintain momentum for the Applicant. It is, of course, proper to consider this uncontroverted evidence within the context of the statutory scheme.
The Tribunal finds both the medical and anecdotal evidence, as to the need for extensive and consistent physiotherapy to support and develop the Applicant, to be compelling. The Applicant is a child and requires physiotherapy to be undertaken in order to continue to build and maintain everyday skills. In the event, he lives with his mother who works tirelessly to support the Applicant, to care for him and to build his capacity and with his father and brother who also care for and spend time with the Applicant. It is beyond reasonable expectations that a family member, either single-handedly or without sufficient assistance, undertake the role of physiotherapist during school holidays whilst also managing and caring for the complex needs of the Applicant (and for his brother).
It is a necessary corollary to the hours of funding that sufficient funding for related travel and reporting be provided so that a physiotherapist will provide the services on site at a suitable location. Ms Hayes and the Applicant’s mother identified tasks ranging from managing communications between practitioners and to providing capacity building to the Applicant’s mother with respect to the non-face-to-face support. Therefore, the evidence available to the Tribunal supports the conclusion that physiotherapy is necessary and that the requested number of 70.5 hours of physiotherapy identified in the available evidence is reasonable.
The Tribunal notes the Respondent’s submission that flexible funding from elsewhere in the funded supports could be deployed for additional physiotherapy[54] and that capacity building supports were previously under-utilised, indicating a sufficiency of funding. The Tribunal accepts the Applicant’s mother’s evidence that some Covid-related circumstances, and the escalation of the Applicant’s behaviors, had prevented some therapies from being fully utilized during 2021, but that this is unlikely to continue.[55] It is therefore unlikely that flexible funding will be under-utilized and therefore available as suggested by the Respondent.
[54] Respondent’s closing submissions, 15 February 2022, [11].
[55] Applicant’s closing submissions in reply, 7 March 2022, page 6.
On the basis of the conclusions drawn from the available evidence, the Tribunal finds that the Applicant’s approved statement of participant supports is to include funding for physiotherapy sufficient to provided 70.5 hours in total, annually.
Exercise Therapy
The Applicant has sought 72 hours of funded supports for an exercise physiologist to support the Applicant. The Respondent submits that to provide funding as sought for the exercise physiology would be a duplication of supports,[56] as the Applicant presently has funding within his capacity building supports for 96 hours of “other therapy” which can be used flexibly for supports from Allied Health Professionals for skills development, training, assessment and physiotherapy, and that this support would not represent value for money.[57]
[56] Respondent’s Closing Written Submissions, 13 September 2022 [136].
[57] Ibid, [136]-[138].
Ms Williams, Exercise Physiologist, prepared a report[58] and gave sworn evidence at the hearing. She explained that the recommended 72 hours included two 30-minute sessions each week and sufficient time to allow for travel to the site for those sessions.[59] The evidence of Ms Williams was not challenged by the Respondent, other than through cross-examination, including as discussed below, and no conflicting evidence was produced to the Tribunal. There is no proper basis for the Tribunal to reject the recommendations she has made. It is, of course, proper to consider this uncontroverted evidence within the context of the statutory scheme.
[58] TB, A20, Report of Suzette Griffoen, physiotherapist, pages 149-136.
[59] Transcript P127 lines 40 – 45.
Ms Hayes, Physiotherapist, gave compelling sworn evidence as to the distinction between physiotherapy and exercise physiology. Insofar as the Applicant is concerned, Ms Hayes explained that the recommendations as to physiotherapy were distinct from, and in addition to, his exercise physiology needs.[60] Ms Williams gave evidence consistent with Ms Hayes, despite during concerted cross-examination.[61] Ms Williams’ evidence was to the effect that exercise physiology allowed a broad approach to the development of the strength and conditioning needed for more targeted functions undertaken via physiotherapy. The Tribunal concludes that, at least insofar as the Applicant’s particular needs are concerned, the disciplines are complementary, but not duplicative. The Tribunal is further satisfied that addressing the Applicant’s needs through community-based or group activities would pose a risk to the Applicant and others, and it is reasonable to address this risk by meeting his strength and conditioning needs in a one-on-one setting in accordance with the recommendations of Ms Williams.
[60] Transcript P123 line 22- P124 line 14.
[61] Transcript P 128 line 45 to P 129 line 40.
It is a necessary corollary to the hours of funding that sufficient funding for related travel and reporting be provided so that an exercise physiologist will provide the services on site at a suitable location. Therefore, the evidence available to the Tribunal supports the conclusion that funding for exercise physiology is necessary and that the requested number of 72 hours of physiotherapy identified in the available evidence is reasonable.
Home Modifications
The Respondent now accepts that the home modifications proposed in the Complex Home Modification Assessment Report of Ms Thompson, dated 18 March 2022, are reasonable and necessary supports. The quote for these works, which provide for improved access to the Applicant’s home, is just for a little less than $7,000. However, the Respondent submits that an aspect of the operational guidelines requiring assurance that “there are no laws, regulations or planning restrictions which would prevent the home modifications being undertaken” should prevent funding from being made available to the Applicant for these “reasonable and necessary supports”.
The Respondent submits:[62]
[62] Respondent’s closing submissions, 13 September 2022, [150] – [157].
“Based on the evidence currently before the Tribunal, the Home Modifications cannot form part of the applicant’s supports for the following reasons.
First, the evidence does not disclose whether the Home Modifications comply with the law.
Second, the Operational Guidelines, in the Home Modification chapter provide that:
(a) The respondent must be satisfied that there are no laws, regulations or other planning restrictions which would prevent the home modifications being undertaken; and
(b) The home modifications must represent value for money.
The Operational Guidelines go on to state that the respondent will generally not fund: “remediation of work that does not comply with the specifications of work or did not comply with the Building Code or relevant Australian Standards (this is the responsibility of the builder)”
In this case, the quotation from Q SPEC Building Mobility Solutions does not state:
(a) the applicable Building Code or relevant Australian Standards (whether AS 1428 or otherwise) which apply to the Home Modifications;
(b) that the Home Modification will be compliant with the applicable Building Code or relevant Australian Standards.
Ms Thompson purports to give evidence that the proposed Home Modifications will comply with AS 1428, that evidence should not be accepted where she is not a builder, and will not be carrying out the works. The Tribunal should only be satisfied with evidence from Q SPEC that the Home Modifications will be compliant.
If the proposed Home Modifications are not compliant with the applicable Australian Standards and Building Code:
(a) there is a risk of harm to the applicant, and potentially other occupants and entrants to the applicant’s home; and
(b) the Home Modifications will not comply with the Operational Guidelines for Home Modifications, and should not be funded by the NDIS.
During the hearing on 19 July 2022, the Tribunal raised an issue with the respondent’s counsel regarding: what decision can the Tribunal made to include funding of for the ramp comprised within the Home Modifications, in the event the Tribunal is satisfied it is a reasonable and necessary support, or any other information that can be obtained to satisfy the Tribunal of the same.”

The Respondent then submitted that three options were available to the Tribunal:
(a)Firstly, the Tribunal can find that the Home Modifications are reasonable and necessary but cannot approve them without compliance with the applicable Australian Standards and building codes.[63]
(b)Secondly, the Tribunal could find that the Home Modifications are reasonable and necessary and comply with the applicable Australian Standards and building codes, contrary to the Respondent’s position.[64] The Tribunal could remit the matter with directions to the effect of “when calculating the appropriate level of funding for the Home Modifications, consideration should be given to the quotations provided by the applicant in this matter”.[65]
(c)Thirdly, the Tribunal could find reasons as to why the Operational Guidelines for Home Modifications, as a policy, should not apply in these circumstances.[66]
[63] Ibid, [160].
[64] Ibid, n62, [161].
[65] Ibid; Harris and National Disability Insurance Agency [2022] AATA 276, [69].
[66] Ibid, [162].
The Tribunal is to consider firstly the provisions of the NDIS Act and the Rules, then, if not inconsistent, will consider the Operational Guidelines.
Curiously, the Respondent does not submit that the quoted works offend any part of any applicable building code or Australian Standard. There is no reason to conclude that the proposed works would not comply with any building code or that there is any law, regulation or other planning restriction that prevents the undertaking of the proposed home modifications. It is unclear why the Tribunal, standing in the shoes of the delegate, would not be “satisfied” that the quoted works are not perfectly within the law. The Respondent has not identified any potential concern or way in which the proposed works might not be compliant. Section 34 of the NDIS Act is inclusive in its approach to supports that are reasonable and necessary. Further, the Act requires a flexible, tailored and appropriate response to each participant’s needs. Therefore, it is unlikely that the proper approach, in order to reconcile the binding provisions of the NDIS Act with this aspect of the Operational Guidelines, is to assume non-compliance with codes and standards and to work forwards from there. In the unlikely event that works funded through the scheme, which are otherwise reasonable and necessary, in some way offend a code or standard, it is open to the scheme to provide whatever additional funds are needed to bring the works up to code, despite the operational guideline apparently suggesting to the contrary.
Not only are the home modifications, which will have the effect of providing the Applicant and those supporting him with safe ingress and egress to his home, reasonable and necessary – they are also urgent. Taking into consideration all of the matters canvassed above, the Tribunal finds that the Applicant’s approved statement of participant supports is to include funding for the proposed works as quoted. In the event thar further funds are required to meet any reasonable uplift in costs as a result of increased costs in materials or labour arising from the delay between the provision of the quote and the undertaking of this essential work, it is the intent of the Tribunal that this additional funding also be made available as part of the approved statement of participant supports.
Transport
The Applicant submitted that there were two aspects of travel-related costs incurred by the Applicant’s formal and informal supports that were related to the Applicant’s disabilities and were reasonable and necessary supports that ought to be funded in the Applicant’s plan. Ms FYSK explained the Applicant’s submissions as follows:
(a)Costs incurred by family and support workers using their own private vehicle to transport the Applicant to and from appointments; and
(b)Costs incurred by support workers returning to collect their own vehicle from the Applicant’s home after accompanying him to school on the dedicated school bus service to his Special School (uber fees of around $15 per trip).
The Applicant’s plan does not provide any allowance for transport. The Applicant cannot use public transport. The Applicant’s family use their own vehicle to transport the Applicant to and from medical appointments, school (when he needs to be collected or is otherwise not on the bus) and for access to the community. It is reasonable for the family to meet the everyday costs associated with transporting their son to certain events and within the community. However, some recognition should be made, in the Applicant’s funded supports, for his additional, disability-related transport needs. The Tribunal concludes that at least the base level of transport funding, at level one, would cover necessary disability-related travel expenses and be a reasonable measure of support, having regard to what it is reasonable for families to themselves provide.
It is not disputed by the Respondent, and the Tribunal accepts, that he cannot travel on the private bus to his special school without assistance from a support worker. In order for that support worker to board the bus and accompany the Applicant to school an arrangement is in place with the bus service provider to employ the Applicant’s support worker for the duration of the bus trip. For this, the support worker will receive a flat fee of $52.[67] The support worker must fund their return to their vehicle (if located at the Applicant’s home) or to their next destination using public transport, Ubers or taxis. Ms FYSK estimated that the entire return trip to school from the family home would take about an hour.
[67] Ibid, n62, [50].
The Respondent submitted:[68]
[68] Ibid, [49] – [54].
“NDIS funding cannot be conditioned on a particular worker’s preferences for the source of their own remuneration. The respondent submits that this funding request is not a reasonable and necessary support because:
(a) the support workers are employed by Townsend during their return journey. It would be futile for the respondent to fund them during this time, such that it would not represent value for money;
(b) although there is some suggestion that the support workers may not continue to provide the support if their Uber fares are not reimbursed by the respondent, the respondent submits that that evidence cannot be relied upon where the support workers are continuing to work under the current arrangements;
(c) as the service is to assist FYSK to get to school – a requirement on all children – it is most appropriately funded by Education Queensland, not the NDIS in conformity with s 34(1)(f) of the NDIS Act and r 7.9(a) of the Supports Rules.
Moreover, the evidence before the Tribunal is that support workers are paid more by Townsend Buses. They receive $54.80 from Townsend, versus $52 from Healthy Minds.
Mrs FYSK’s evidence was that the applicant’s support workers do not wish to continue to support the applicant to take the school bus in circumstances where Townsend will not reimburse their Uber fare.
In short, their preference is not relevant. The support workers must be employed by Townsend while on the bus, and so they must be paid by Townsend. Their employment arrangements are a matter for them and Townsend, and should not govern the applicant’s entitlement to funding from the NDIS.
The applicant has choice and control over in the pursuit of his NDIS goals, and the planning and delivery of his supports. If a particular support worker chooses not to support the applicant on the school bus—as to which the Tribunal has no persuasive evidence—the applicant can engage a support worker who will support the applicant to ride on the school bus.
Therefore, the respondent submits that both the support workers’ level of remuneration, and any additional reimbursement for their Uber fares home, are most appropriately funded by Townsend Buses. The respondent submits the funding sought is not, in these circumstances, caught by r 7.21(a)-(c) of the Supports Rules.22 While r 7.21(c) does allow funding for taxis or other private transport options, this is limited to funding the applicant’s own travel by these means, not the travel of his support workers while they are not with the applicant.”
The Tribunal accepts the Respondent’s submissions with respect to this issue.
The Applicant submitted that a support worker would be out of pocket if the scheme did not offer funds from which their return trip from the Applicant’s school to their private vehicle at his home could be re-imbursed. Whilst this concern, held by the Applicant’s family, is understandable, and the submission on his behalf is rational, the Applicant has nonetheless been able to attract and retain support workers who undertake this aspect of his support work through their arrangement with Townsend.
It is not possible to conclude that meeting out-of-pocket expenses incurred by support workers, whilst they are undertaking employment with Townsend, is a reasonable and necessary support for the Applicant. It follows that it is not appropriate to specify such funding in the approved statement of participant supports but is it appropriate to specify level-one transport funding for the Applicant.
CONCLUSION
The Tribunal has found that funding for the following reasonable and necessary supports is to be specified in the Applicant’s statement of participant supports for a year-long period:
(a)School-day support: 5 hours per week of 2:1 support as required (200 hours per year, to be used flexibly as required);
(b)Therapy assistance: 14 hours per week, to be effected by transferring funds for 728 hours per year (funded at $65.23 per hour) from the Applicant’s budget for Core Support, Social, Community and Civic Participation into the Applicant’s budget for Capacity Building Daily Activity (funded at $86.79 per hour);
(c)Specialist support coordination: 56 hours per week;
(d)Multi-disciplinary meetings: funding for 204 hours per year;
(e)Psychology cognitive functioning assessment: one-off payment for 9 hours;
(f)Land based physiotherapy: 70.5 hours per year (including travel);
(g)Exercise therapy: 72 hours per year (including travel);
(h)Home modifications: $6,944.00 for two ramps and inclusion of a deadlock; and
(i)Level-one transport funding.
The Tribunal is not satisfied that the other supports discussed above are reasonable and necessary.
DECISION
The Tribunal sets aside the decision under review and, in substitution, approves a statement of participant supports for the Applicant that specifies funding for:
a)School-day support: 5 hours per week of 2:1 support as required (200 hours per year, to be used flexibly as required);
b)Therapy assistance: 14 hours per week, to be effected by transferring funds for 728 hours per year (funded at $65.23 per hour) from the Applicant’s budget for Core Support, Social, Community and Civic Participation into the Applicant’s budget for Capacity Building Daily Activity (funded at $86.79 per hour);
c)Specialist support coordination: 56 hours per week;
d)Multi-disciplinary meetings: funding for 204 hours per year;
e)Psychology cognitive functioning assessment: one-off payment for 9 hours;
f)Land based physiotherapy: 70.5 hours per year (including travel);
g)Exercise therapy: 72 hours per year (including travel);
h)Home modifications: $6,944.00 for two ramps and inclusion of a deadlock; and
i)Level-one transport funding.
and otherwise specifies the reasonable and necessary supports and other aspects of the statement of participant supports as set out in the decision under review (as remade on

10 October 2022).
I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for decision of Senior Member Buxton.
………[SGD]……….…………………
Associate
Dated: 21 December 2022
Dates of the hearing:  19 and 20 July 2022
Date of final submissions:                 7 November 2022
Applicant:  In-person via Video
Advocate for Applicant:  Applicant’s Mother (Ms FYSK)
Counsel for the Respondent:            Ms G Yates
Solicitor for the Respondent:             Ms N Donaghy (Australian Government Solicitor)