GDDC and National Disability Insurance Agency

GDDC and National Disability Insurance Agency [2023] AATA 66 (31 January 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2021/1794
Re:GDDC
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

Decision
Tribunal:Member P Smith
Date:31 January 2023
Place:Sydney

Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency in accordance with the following direction:
(1) to include the following reasonable and necessary supports in the Applicant’s Plan over a 12-month period:
(a)30 hours of Occupational Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing;
(b)30 hours of Speech Pathology Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing;
(c)30 hours of Applied Behavioural Analysis Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing; and
(d)provider travel for each of Occupational Therapy, Speech Pathology Therapy and Applied Behavioural Analysis Therapy to allow for implementation of those therapies in the Applicant’s home and school.

................................[SGD]........................................
Member P Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME - Application to review a decision made by a reviewer of the National Disability Insurance Agency in respect of supports relating to a nine-year old child with a diagnosis of Autism Spectrum Disorder (ASD) of level 2 severity - Request for an increase in funding to the Applicant’s Capacity Building Supports Budget for greater hours of weekly Applied Behavioural Analysis (ABA) Therapy, Occupational Therapy and Speech Pathology Therapy – whether the request is reasonable and necessary within the meaning of section 34 of the National Disability Insurance Scheme Act 2013 (Cth) – whether the requested support represents value for money – whether the requested support is effective and beneficial for the Applicant – whether the requested support takes account of what is reasonable to expect families, carers, informal networks, and the community to provide to the Applicant – whether ABA Therapy, Occupational Therapy and Speech Pathology Therapy have helped to improve the Applicant’s behaviours that are associated with her diagnosis of ASD – whether an alternative model of therapy should be included in the Applicant’s Plan on the basis that the existing therapy model has failed to make significant improvements to the Applicant’s behaviours - consideration of differences in expert opinions – duplication of supports – decision under review set aside and remitted with direction

Legislation
National Disability Insurance Scheme Act 2013 (Cth), ss 3(1)(c), (d), (e), (f), (g), 3(2)(a), (b), (c), 9, 31, 32, 33(2), 33(4)(a)(b), 33(5)(a), (b), (c), (d), (e), (f), 33(7), 33(8), 34, 35(1)(a), (b), (c), 100(6)(b), 117, 119, 209(1)
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth), ss 35, 43, 43(1)(b), 43(1)(c)(ii)
Cases
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121

Secondary Materials
Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence, cl 4
REASONS FOR DECISION
Member P Smith
31 January 2023
INTRODUCTION

GDDC (the Applicant) is a nine-year-old participant of the National Disability Insurance Scheme (the NDIS). She has a diagnosis of Autism Spectrum Disorder (ASD) of level 2 severity for which she receives supports funded under the NDIS. The Applicant lives in Sydney with her mother (Mrs GDDC) and father (Mr GDDC) (collectively, the Applicant’s parents) and her older brother and sister and members of her extended family.
Mr GDDC made an application to the Tribunal on 24 March 2021[1] on behalf of his daughter seeking a review of a decision made by a reviewer of the National Disability Insurance Agency (the Respondent) on 25 February 2021. The reviewer, after conducting an internal review[2], decided to vary[3] the decision made by a delegate of the Chief Executive Officer (CEO) of the Respondent on 19 November 2020 to approve a statement of participant supports (the SOPS) in the Applicant’s Plan under subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for a 12-month period commencing on 19 November 2020 and ending before 19 November 2021[4].
[1] For a copy of the Application for Review of Decision Mr GDDC made on behalf of his daughter on 24 March 2021 see T1 of the T-documents the Respondent lodged with the Tribunal on 17 May 2021.
[2] For a copy of the internal review decision see T1A of the T-documents.
[3] After an internal review of a reviewable decision has been conducted, the reviewer has the power to vary the reviewable decision under subsection 100(6)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[4] See T7 of the T-documents.
After considering the available material, including the two reports that Mr GDDC sent to the Respondent on 8 December 2020[5] with his request for an internal review, the reviewer stated in her decision that she was not satisfied that Mr GDDC’s request for an increase in funding to the Applicant’s Capacity Building Supports Budget based on the recommendations in the Joint Therapy Assessment Report of Jasmine Ng (Ms Ng), Occupational Therapist and Tessa Maddocks (Ms Maddocks), Speech Pathologist of Everyday Independence dated 16 October 2020[6] and the Progress Report of Kaci Sweeney (Ms Sweeney), Program Supervisor of ABAlink dated August 2019[7] was a reasonable and necessary support for the purpose of section 34 of the NDIS Act and rule 5.1(c) of the National Disability Insurance Scheme (Supports for Participants) Rules 2013.
[5] See T5 of the T-documents. The two reports sent by Mr GDDC with his email of 8 December 2020 included the Joint Therapy Assessment Report of Jasmine Ng, Occupational Therapist and Tessa Maddocks, Speech Pathologist from Everyday Independence dated 16 October 2020 and the ‘Progress Report’ of Kaci Sweeney, Program Supervisor, ABAlink dated August 2019.
[6] See T1F of the T-documents.
[7] See T1E of the T-documents.
The reviewer stated further in her decision however that she was satisfied that an increase in funding to the Applicant’s Capacity Building Supports Budget to include 82 hours of therapy that can be used flexibly was, for the purpose of section 34 of the NDIS Act, a reasonable and necessary support as was Mr GDDC’s request for 12 hours of funded support coordination.
Following the reviewer’s decision to approve 82 hours of therapy and 12 hours of funded support coordination, a new SOPS in the Applicant’s Plan was approved under subsection 33(2) of the NDIS Act for a 12-month period commencing on 25 February 2021 and ending before 25 February 2022[8] (the Applicant’s Plan).
[8] See T6 of the T-documents.
The Applicant’s Plan includes funding in the Applicant’s Core Supports Budget in the amount of $1,814.08 to help the Applicant with everyday activities, her current disability support needs and to progress towards her goals. The Applicant’s Plan specifies funding for the Applicant’s annual continence support needs, including delivery. Funding includes up to $500.00 for the purchase of low-cost low risk Assistive Technology related to the Applicant’s disability support needs. The Applicant’s Plan specifies that the Applicant’s school transport is provided through the New South Wales State Government’s guidelines and eligibility criteria. The Applicant’s Plan also specifies that her transport supports are pre-paid so she will not need to use the funding that has been allocated to her Core Supports Budget to pay for it.
The Applicant’s Plan also specifies funding to the Applicant’s Capacity Building Supports Budget in the amount of $16,111.38 to help the Applicant increase her independence and reduce the Applicant’s need for the same level of support to continue in the future and to help the Applicant with improved daily living (CB Activity). The Applicant’s Plan specifies funding for an allied health professional or therapist to assess and provide support to build the Applicant’s skills so that she can achieve all of her plan goals. The Applicant’s Plan specifies funding for the preparation of progress reports to be submitted to the Agency from each of the Applicant’s Therapists in time for any scheduled review of the Applicant’s Plan. The Applicant’s Plan states that the progress reports must show measurable outcomes to support future funding. The Applicant’s Plan also specifies that the funds allocated for allied health therapies can be used flexibly by the Applicant including Applied Behavioural Analysis (ABA) Therapy, Occupational Therapy, Psychological Therapy and Speech Pathology Therapy to assist the Applicant to achieve her goals.
THE APPLICANT’S CASE
The Applicant was represented in this proceeding by Mr GDDC. At the hearing of the Applicant’s application held on 31 October 2022, Mr GDDC appeared before the Tribunal via video.
At the hearing, Mr GDDC confirmed to the Tribunal that for the purpose of this proceeding he is seeking an increase in funding to the Applicant’s Capacity Building Supports Budget for an increase in hours of weekly ABA Therapy, Occupational Therapy and Speech Pathology Therapy over a 12-month period.
Mr GDDC seeks an increase in funding to the Applicant’s Capacity Building Supports Budget so that the Applicant can receive 10 or 14 hours of weekly ABA Therapy. This request is made based on the recommendation Mithila Govindaraj (Ms Govindaraj), Behaviour Consultant, gives in her NDIS Behaviour Support Report dated 16 February 2022[9]. Mr GDDC seeks an increase in funding to the Applicant’s Capacity Building Supports Budget so that the Applicant can receive 45 hours of Occupational Therapy Supports (consisting of 40 hours of therapy to be delivered through weekly hour-long sessions, three hours for face-to-face carer support and two hours for report writing) as well as six hours per week for a therapy assistant level 2. This request is made based on the recommendations Mihaela Thorby (Mrs Thorby), Occupational Therapist of Aster Care, gives in her Occupational Therapy NDIA Report dated 29 April 2022[10]. Mr GDDC also seeks an increase in funding to the Applicant’s Capacity Building Supports Budget so that the Applicant can receive 102 hours of Speech Pathology Therapy (consisting of 100 hours of therapeutic supports (two hours per week for 50 weeks) and two hours for report writing. This request is made based on the recommendations Louisa Wilson (Ms Wilson), Speech Pathologist of Nash Speech Pathology, gives in her Speech Pathology Letter of Recommendation dated 22 April 2022[11].
[9] See item 5 of the Tender Bundle.
[10] See item 7 of the Tender Bundle.
[11] See item 6 of the Tender Bundle.
At the hearing Mr GDDC argued for an increase in funding to the Applicant’s Capacity Building Supports Budget to facilitate an increase in hours of weekly ABA Therapy, Occupational Therapy and Speech Pathology Therapy. Mr GDDC cited the following reasons in support of the request:
(a)an increase in funding and thus an increase in hours of therapy will lead to better outcomes for his daughter, including improvements to her behaviours, which are associated with the Applicant’s ASD diagnosis, such as communication, speech, social skills, emotional regulation, and her adverse behaviours;
(b)Mr GDDC is of the view that since 2018 there have been significant improvement in regard to the Applicant’s learning and cognition, communication skills, daily living, and social skills, which he argues is a direct result of her receiving extensive ABA Therapy, Occupational Therapy and Speech Pathology Therapy;
(c)an increase in funding and thus an increase in hours of therapy will enable the Applicant’s therapists to help his daughter to ensure further developments to her communication skills, daily living, and social skills with the objective of the Applicant reaching her potential, which is consistent with other children her age;
(d)a decision not to increase funding and the number of hours of therapy may adversely affect the Applicant’s capacity to learn and achieve an improved state in all areas abovementioned; and
(e)the reports prepared by the various allied healthcare professionals, namely that Mr GDDC relies on, in support of his request, all recommend that the Applicant should be given more hours of therapy from allied healthcare professionals.
THE RESPONDENT’S CASE
The Respondent was represented in this proceeding by Greg Johnson of Counsel (Mr Johnson) instructed by Matthew Sheedy (Mr Sheedy), a solicitor of Sparke Helmore Lawyers. Both Mr Johnson and Mr Sheedy appeared before the Tribunal at the hearing, also via video.
At the hearing, Mr Johnson argued that the Tribunal should refuse Mr GDDC’s request for an increase in funding and an increase in hours of weekly ABA Therapy, Occupational Therapy and Speech Pathology Therapy on the basis that the request is not reasonable and necessary for the purpose of section 34 of the NDIS Act.
It was submitted for the Respondent that Mr GDDC’s request should be refused for three reasons. The first reason is because the requested support does not satisfy the requirements of subsection 34(1)(c) of the NDIS Act, in that, the requested support does not represent value for money in that the costs of the support are not reasonable, relative to both the benefits achieved and the cost of alternative support as required under subsection 34(1)(c) of the NDIS Act. The second reason is because the requested support does not satisfy the requirements of subsection 34(1)(d) of the NDIS Act, in that, the requested support will not be, or is unlikely to be, effective and beneficial for the Applicant, having regard to current good practice. The third reason is because the requested support does not satisfy the requirements of subsection 34(1)(e) of the NDIS Act, in that, the funding or provision of the requested support would not take account of what it is reasonable to expect families, carers, informal networks, and the community to provide to the Applicant.
It was submitted for the Respondent that it is reasonable and necessary for the purpose of section 34 of the NDIS Act to increase the amount of funding to the Applicant’s Capacity Building Supports Budget, and to fund under the NDIS, 30 hours of each of ABA Therapy, Occupational Therapy and Speech Pathology Therapy. However, the Respondent further submitted that the delivery of these therapies should have an alternative structure in regard to their intensity and the duration of sessions. For example, for each therapy, providing four hours for initial training sessions consisting of two hours of therapy provided to the Applicant at her home and two hours of therapy provided to the Applicant at her school. Following this, for therapy to be provided to the Applicant for one hour each fortnight over the course of the next 12-month period.
It was submitted for the Respondent that their proposed alternative model of therapy is reasonable and necessary for the purpose of section 34 of the NDIS Act on the basis that it is supported by the expert opinion and recommendations given by Associate Professor M[12] (A/P M) in his reports[13]. It was submitted for the Respondent that when the Tribunal assesses the opinions and recommendations of the allied healthcare professionals that are established in the reports that Mr GDDC has lodged in this proceeding and the opinions and recommendations together with the oral evidence of A/P M, that more weight should be given to the evidence of their expert.
[12] The order made under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) by Deputy President Constance on 29 March 2021 prohibits the publication of the names and addresses of the Applicant and any witnesses appearing before the Tribunal. Therefore, the name and address of the Respondent’s witness will not be disclosed in this decision.
[13] A/P M has prepared three reports for the purpose of this proceeding. The first report is dated 23 July 2021. This report can be found at item 13 of the Tender Bundle. The second report is dated 21 March 2022. This report can be found at item 14 of the Tender Bundle. The third report is dated 7 October 2022. This report can be found at item 15 of the Tender Bundle.
It was therefore submitted for the Respondent that the Tribunal should vary the decision under review pursuant to subsection 43(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth)[14] to include funding in the Applicant’s Capacity Building Supports Budget for the next 12-month period for the following supports the Respondent argues are reasonable and necessary:
[14] For the purpose of reviewing a decision, the Tribunal may, under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), exercise all of the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing under that subsection, including affirming the decision under review, varying the decision under review or setting aside the decision under review and making a decision in substitution for the decision so set aside or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
(a)30 hours of Occupational Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing;
(b)30 hours of Speech Pathology Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing;
(c)30 hours of ABA Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing; and
(d)provider travel for each of Occupational Therapy, Speech Pathology Therapy and ABA Therapy to allow for implementation of those therapies in the Applicant’s home and school.
THE STATUTORY FRAMEWORK
The NDIS[15], implemented under the NDIS Act, established the statutory framework for a new national program for the delivery of supports and services funded under the NDIS to eligible people living with disability to help them in their everyday lives by supporting their independence and social and economic participation and enabling them to exercise choice and control over the planning and the delivery of their supports.
[15] National Disability Insurance Scheme is defined in section 9 of the National Disability Insurance Scheme Act 2013 (Cth) to mean the arrangements set out in Chapters 2 and 3.
The NDIS Act established the NDIA[16], the independent body responsible for the administration of the NDIS. The functions of the NDIA are set out in section 118 of the NDIS Act. The powers of the Agency are set out in section 119 of the NDIS Act.
[16] See section 117 of the National Disability Insurance Scheme Act 2013 (Cth).
Chapter 1 of the NDIS Act outlines the objects and the general principles that underpin the legislation. The objects of the NDIS Act are set out in section 3 of the NDIS Act and include supporting the independence and social and economic participation of people with disability[17], providing reasonable and necessary supports, including early intervention supports, for participants[18], enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports[19], facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability[20] and promoting the provision of high quality and innovative supports to people with disability[21]. Subsection 3(2) of the NDIS Act identifies three ways in which the objects of the NDIS Act are to be achieved. These include providing the foundation for governments to work together to develop and implement the NDIS[22], adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability[23], and establishing a national regulatory framework for persons and entities who provide supports, and services to people with disability, including certain supports and services provided outside of the NDIS[24].
[17] See subsection 3(1)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
[18] See subsection 3(1)(d) of the National Disability Insurance Scheme Act 2013 (Cth).
[19] See subsection 3(1)(e) of the National Disability Insurance Scheme Act 2013 (Cth).
[20] See subsection 3(1)(f) of the National Disability Insurance Scheme Act 2013 (Cth).
[21] See subsection 3(1)(g) of the National Disability Insurance Scheme Act 2013 (Cth).
[22] See subsection 3(2)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[23] See subsection 3(2)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[24] See subsection 3(2)(c) of the National Disability Insurance Scheme Act 2013 (Cth).

Chapter 3 of the NDIS Act provides the guiding framework for participants and the development of individualised participants plans and how a person becomes a participant of the NDIS. Section 31 of the NDIS Act sets out several principles that should, so far as reasonably practicable, be considered in relation to the preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan.
From 8 April 2022, following the passage of legislative amendments to section 32 of the NDIS Act, as introduced by the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022 (Cth), the CEO must, if a person becomes a participant of the NDIS, facilitate the preparation of a participants plan within 21 days of the person becoming a participant[25].
[25] See section 32 of the National Disability Insurance Scheme Act 2013 (Cth).
After a person becomes a participant of the NDIS, they develop a plan with the Agency in two parts. The first part to the development of a participant’s plan includes the preparation of a statement (the statement of goals and aspirations) that is prepared by the participant that specifies the goals, objectives and aspirations of the participant, the environmental and personal context of the participant’s living, including the participant’s living arrangements and informal community supports and other community supports and their social and economic participation[26].
[26] See section 33 of the National Disability Insurance Scheme Act 2013 (Cth).
The second part to the development of a participant’s plan includes the preparation of another statement (the statement of participant supports) that must be included in the participant’s plan as required under subsection 33(2) of the NDIS Act. This statement must be prepared with the participant and approved by the CEO, that specifies a number of matters, including the general supports (if any) that will be provided to, or in relation to, the participant, and the reasonable and necessary supports (if any) that will be funded under the NDIS, the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4, and the management of the funding for supports under the plan[27] and the management of other aspects of the plan[28].
[27] See Division 3 of Part 2 to Chapter 3 to the National Disability Insurance Scheme Act 2013 (Cth).
[28] See subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth).
Subsection 33(3) of the NDIS Act provides that the reasonable and necessary supports that will be funded or provided under the NDIS may at the discretion of the CEO be identified in a participant’s plan specifically or generally, whether by reference to a specified purpose or otherwise.
Subsection 33(4) of the NDIS Act provides that the CEO must decide whether or not to approve the statement of participant supports either within the period worked out in accordance with the NDIS Rules prescribed for the purposes of this paragraph (which may take account of section 36 (information and reports))[29] or if there are no such rules – as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports)[30].
[29] See subsection 33(4)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[30] See subsection 33(4)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
Subsection 33(5) of the NDIS Act sets out several matters that the CEO must have regard to when deciding whether to approve a statement of participant supports. These include the participant’s statement of goals and aspirations as discussed at paragraph [24][31], whether the supports are reasonable and necessary supports as required under section 34 of the NDIS Act[32], whether any relevant assessments have been conducted in relation to the participant[33], whether any methods or criteria specified in the NDIS Rules for deciding the manner in which, and by whom, the reasonable and necessary supports will be funded or provided[34], the principle that it is desirable for a participant to manage their plan to the extent that they wish to do so[35], and the operation and effectiveness of any previous plans of the participant[36].
[31] See subsection 33(5)(a) of the National Disability Insurance Scheme Act 2013 (Cth).
[32] See subsection 33(5)(c) of the National Disability Insurance Scheme Act 2013 (Cth).
[33] See subsection 33(5)(b) of the National Disability Insurance Scheme Act 2013 (Cth).
[34] See subsection 33(5)(d) of the National Disability Insurance Scheme Act 2013 (Cth).
[35] See subsection 33(5)(e) of the National Disability Insurance Scheme Act 2013 (Cth).
[36] See subsection 33(5)(f) of the National Disability Insurance Scheme Act 2013 (Cth).
Subsection 33(6) of the NDIS Act provides to the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered NDIS provider.
A participant’s plan may include additional matters as prescribed in the NDIS Rules[37], and a participant’s statement of goals and aspirations must be in writing or recorded by the Agency in writing[38].
Section 34 of the NDIS Act sets out the mandatory criteria of which the CEO must be satisfied in relation to the funding or provision of each support provided to a participant, to ensure that they are ‘reasonable and necessary’ to assist the person. This must be considered when a statement of participant supports is being developed.
To be considered reasonable and necessary for the purposes of making an assessment against the criteria in section 34 of the NDIS Act, a support must firstly assist the participant to pursue his or her goals, objectives, and aspirations in the participant’s statement of goals and aspirations as required under subsection 34(1)(a) of the NDIS Act. Secondly, the support must assist the participant to undertake activities, as to facilitate the participant’s social and economic participation as required under subsection 34(1)(b) of the NDIS Act. Thirdly, the support must represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support as required under subsection 34(1)(c) of the NDIS Act. Fourthly, the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice as required under subsection 34(1)(d) of the NDIS Act. Fifthly, 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 as required under subsection 34(1)(e) of the NDIS Act. Sixthly, the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service or support services offered as part of a universal service obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability as required under subsection 34(1)(f) of the NDIS Act.
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In National Disability Insurance Agency v WRMF[39], the Full Federal Court observed that the phrase ‘connotes supports which meet a threshold which justifies – be reference to the context, objects, and guiding principles of the [NDIS] Act and the facts of the case – the expenditure of public funds for that support, for a particular participant’. Reasonable and necessary is a composite phrase, and each limb of which must be given work to do[40]. In McGarrigle v National Disability Insurance Agency[41] , Mortimer J explained the two limbs in the following terms:
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”.
[37] See subsection 33(7) of the National Disability Insurance Scheme Act 2013 (Cth).
[38] See subsection 33(8) of the National Disability Insurance Scheme Act 2013 (Cth).
[39] (2020) 276 FCR 415 at [151].
[40] WRMF at [149].
[41] (2017) 252 FCR 121 at [91].
Determination of whether a support meets the reasonable and necessary criterion must be made based on probative evidence[42].
Evidence of Mr GDDC
[42] Ibid at [93].
34.Mr GDDC gave oral evidence at the hearing. He was also cross-examined by Mr Johnson. No other witnesses were called by Mr GDDC to give evidence in support of the Applicant’s application at the hearing.
35.In their updated hearing certificate lodged with the Tribunal on 9 September 2022, the Respondent stated that they required Ms Govindaraj, Mrs Thorby and Ms Wilson for cross-examination at the hearing. They were not called as witnesses to give evidence at the hearing. The Tribunal understands that due to Mr GDDC’s present financial position he could not afford to pay the costs of Ms Govindaraj, Mrs Thorby and Ms Wilson to attend the hearing to give evidence. Mr GDDC also tried to arrange for Samiyah Jafari (Ms Jafari), the Applicant’s current ABA Therapist to attend the hearing to give evidence. However, the Tribunal understands from the email received from Mr Sheedy on the morning of the hearing that confirmation had not been sought from Ms Jafari or her office as to her availability to give evidence on 31 October 2022.
36.Mr GDDC works seven days each week running his family business. Mrs GDDC is a full-time stay at home mother. She suffers from diabetes and other medical conditions for which she is treated[43]. Mr GDDC and his wife live in Sydney in a two-bedroom home they share with their three children. Mr GDDC’s brother’s family also live in the family home. Mr GDDC and Mrs GDDC are the Applicant’s primary carers. They are also assisted at home by their older children who provide informal supports to the Applicant. The Applicant sees her grandparents and her paternal aunts and uncles each week.
[43] See the letter from Dr Hala Khamas, Myhealth Medical Centre dated 23 March 2022 at item 11 of the Tender Bundle.
37.The Applicant’s parents had concerns with the Applicant’s speech development from a young age. When the Applicant commenced childcare at the age of five, concerns were raised by the staff at the childcare centre with the Applicant’s parents about the Applicant’s social interactions with others and her play skills in addition to delays with her speech. The Applicant was subsequently referred to a child development clinic within the Royal North Shore Hospital for assessment. She was formally assessed by the clinic as having a diagnosis of ASD of level 2 severity[44].
[44] See the letter from Dr Iresha De Silva, General and Developmental Paediatrician to Dr Elizabeth Golez, the Applicant’s General Practitioner, Myhealth Medical Centre dated 22 July 2021 at item 3 of the Tender Bundle.
38.The Applicant is in Primary 3 at the Macquarie University Special Education Centre (the MUSEC). The MUSEC is a research-based school that delivers their education program through Macquarie University to children from Kindergarten to Primary 6 who have a disability, including mild or moderate intellectual disability, autism, or disability in language.
39.The Applicant attends the MUSEC each weekday between the hours of 9am to 3pm. She uses an external travel provider to travel to and from school. The Applicant commenced studying at the MUSEC sometime in 2020. Prior to her current schooling, the Applicant had attended a mainstream public school. However, the Applicant’s parents decided to take the Applicant out of that school and enrol her in the MUSEC. The decision to change the Applicant’s school was made because the Applicant’s parents did not consider the mainstream public school to be suitable for the Applicant.
40.Mr GDDC has lodged with the Tribunal the Applicant’s school progress report for Semester 1 of 2021[45]. The report included an outline of what the Applicant has been learning as part of the MUSEC education programme, and more specifically, the educational activities undertaken, together with the results from the school, describing the Applicant’s performance as a student at the MUSEC.
[45] See item 10 of the Tender Bundle.
41.The report stated that the Applicant had engaged in a number of educational activities in Semester 1 of 2021. This included the Applicant studying handwriting which she was assessed as emerging[46]. This also included the Applicant studying Phonetic awareness which she was assessed as emerging. This further included the Applicant studying Phonics and ‘Word Attack’ which she was assessed as partial[47] and emerging.
[46] Emerging is defined in the Applicant’s Progress Report to mean that the student demonstrates the skill in familiar settings and situations when provided with a model or partial physical and/or verbal prompts.
[47] Partial is defined in the Applicant’s Progress Report to mean that the student demonstrates the skill in familiar settings and situations and with minimal prompting applies the skill in a variety of new contexts.
42.Whilst being cross-examined by Mr Johnson, Mr GDDC gave evidence about the efficacy of ABA Therapy provided to the Applicant. Mr GDDC said in his evidence that ABAlink first provided the Applicant with ABA Therapy[48]. Mr GDDC said that the therapy by ABAlink was mostly provided to the Applicant on a weekly basis, sometimes at the Applicant’s home or at the ABAlink clinic. Mr GDDC said that ABAlink also provided five and a half hours of dedicated weekly therapy sessions to the Applicant at her former school[49]. Mr GDDC said that when the Applicant attended the ABAlink clinic to receive therapy he observed the therapists going to the Applicant’s room to talk to her about deficits in her behaviours and demonstrating techniques regarding how to be calm.
[48] A copy of the Service Agreement for ABAlink – ABA Program Services the Respondent lodged with the Tribunal on 10 March 2022 is located at ST1c. of the index to the Supplementary T-documents. This document shows that Mr GDDC and ABAlink Early Intervention Services Pty Ltd entered into a Service Agreement on 10 December 2018 to provide ABA early intervention Therapy between the period 10 December 2018 until 27 November 2019.
[49] The delivery of providing five and a half hours of weekly ABA Therapy to the Applicant at her school is confirmed by Kaci Sweeney, Program Supervisor of ABAlink in her Progress Report dated August 2019. A copy of Ms Sweeney’s Progress Report is located at T1E of the T-documents.
43.After finalising the ABA therapy with ABAlink, the Applicant and her parents attended Aspire Early Intervention for further behavioural assessment of the Applicant. The Applicant’s parents reported to Dianne Verstappen (Ms Verstappen), the Clinical Director of Aspire Early Intervention who assessed the Applicant on 12 April 2021, that their daughter continued to have deficits in regard to communication, functional and social interaction skills[50].
[50] See item 2 of the Tender Bundle for a copy of the Intake Report prepared by Ms Verstappen on 12 April 2021.
44.In mid-2021, at the age of eight, the Applicant was referred by Dr Elizabeth Golez, the Applicant’s General Practitioner to Dr Iresha De Silva, a General and Developmental Paediatrician for further assessment due to the reported severity of the Applicant’s behavioural challenges associated with her ASD diagnosis.
45.Mr GDDC has lodged with the Tribunal a NDIS Behaviour Therapy Progress Report prepared by Melissa Esen (Ms Esen), Behaviour Therapist and Managing Director of Essential ABA Pty Ltd, dated 18 October 2021[51].
[51] See item 4 of the Tender Bundle for a copy of the NDIS Behaviour Therapy Progress Report of Melissa Esen, Behaviour Therapist and Managing Director of Essential ABA Pty Ltd dated 18 October 2021.
46.Ms Esen stated in her report that she provided weekly ABA Therapy to the Applicant mostly at her home because Ms Esen considered the Applicant’s home to be the most effective environment to deliver therapy to the Applicant because she was surrounded by people familiar to her.
47.Mr Johnson referred Mr GDDC to the NDIS Behaviour Support Report of Ms Govindaraj, Behaviour Consultant dated 16 February 2022[52]. The Tribunal notes that this report was not prepared by Ms Govindaraj for the purpose of this proceeding and as such does not include the requisite information either in the body of the report or in an annexure to the report the Tribunal expect parties and their legal representatives to include in relation to this kind of evidence as set out in the Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence[53]. This report noted that Mr GDDC had asked Ms Govindaraj to prepare a progress report in time for the review of the Applicant’s Plan scheduled to be conducted before 25 February 2022. Mr GDDC said in his evidence that the Applicant is no longer receiving ABA Therapy from Ms Govindaraj. He said the ABA Therapy, which had been delivered by Ms Govindaraj was now being provided to the Applicant by Ms Jafari[54].
[52] For a copy of the NDIS Behaviour Support Report of Ms Govindaraj dated 16 February 2022 see item 5 of the Tender Bundle.
[53] See clause 4 of the Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence.
[54] Ms Jafari prepared her Progress Report in respect of the Applicant on 18 October 2022. This report is at item 9 of the Tender Bundle.
48.Ms Govindaraj stated in her report that Mr GDDC contacted her office in November of 2021 about her providing ABA Therapy to his daughter. Ms Govindaraj stated that she conducted three initial assessments of the Applicant that being 23 November 2021 and on 8 and 15 December 2021. She made a reference in her report to her Initial Behaviour Support Report for the details regarding her observations arising out of her initial assessments of the Applicant. The Tribunal notes that the Initial Behaviour Support Report of Ms Govindaraj is not a document before the Tribunal.
49.Ms Govindaraj stated in her report that the Applicant began receiving one to one ABA Therapy sessions under her supervision on 12 January 2022. Ms Govindaraj stated that in the period between 12 January 2022 and 16 February 2022, the Applicant received 30 hours of ABA Therapy. This was conducted under Ms Govindaraj’s supervision with the assistance of an independent behavioural technician to support the implementation of the Applicant’s treatment plan.
50.Ms Govindaraj outlined in her report three objectives in respect of its preparation. These include an outline as to the progress of the Applicant from ABA Therapy provided by Ms Govindaraj in the period between 12 January 2022 and 16 February 2022, the Applicant’s short-term goals relevant to functional communication and emotional regulation; and the expected costs associated with continued ABA Therapy from Ms Govindaraj.
51.Ms Govindaraj stated in her report that ABA Therapy is considered an effective treatment for individuals with ASD – with greater treatment intensity and duration being significant predictors of mastering learning objectives across a variety of behaviours. In making this observation, Ms Govindaraj cites an article that she relied upon for her professional opinion that ultimately led to her recommendation for an increase in funding and thus an increase in hours of ABA Therapy to support the Applicant to reach her therapy goals.
52.Ms Govindaraj stated in her report that the Applicant has deficits with functional communication. Ms Govindaraj stated that the Applicant has difficulties in using full sentences and making verbal requests to stop a non-preferred activity. Ms Govindaraj stated that the Applicant has deficits with emotional regulation, which causes the Applicant to have outbursts of anger, potentially harming others and/or herself when she is prohibited from an activity or an item she wishes to engage with. On that basis, Ms Govindaraj recommended in her report that the Applicant continue to receive ABA Therapy at an increased level of support, this being a minimum of 10 or 14 hours each week. Ms Govindaraj was of the view that this increase in support would assist the Applicant to achieve her therapy goals.
53.Ms Govindaraj, however, noted in her report that in less time than the recommended 10 or 14 hours of weekly ABA therapy, the Applicant had mastered two unspecified therapy targets and made significant progress using functional communication more frequently and with less scaffolding. Finally, Ms Govindaraj submitted in her report that more funding will result in the increased capacity of the Applicant.
54.It was put to Mr GDDC by Mr Johnson that in making her recommendation for an increase in funding for greater hours of ABA Therapy, Ms Govindaraj failed to consider that the Applicant may also be receiving other allied health therapies during the week including from an Occupational Therapist. While accepting this proposition, Mr GDDC said in his evidence that at the time Ms Govindaraj made her recommendation, the Applicant was only receiving ABA Therapy coupled with some Speech Pathology Therapy.
55.It was put to Mr GDDC by Mr Johnson that of the ABA Therapists, Occupational Therapists and Speech Pathologists who have prepared reports relating to the Applicant’s therapy, they are all effectively trying to achieve the same type of therapy outcomes in relation to the Applicant’s development, to assist her in her communication and speech and self-regulation. Mr GDDC accepted this proposition.
56.Mr GDDC was asked by Mr Johnson what the reason was for the Applicant ceasing therapy sessions with Ms Govindaraj. Mr GDDC said in his evidence the reason was that Ms Govindaraj was the supervisor responsible for writing the therapy program for the Applicant. He said further that Ms Jafari maintained the program written by Ms Govindaraj but was a junior therapist. Mr GDDC said that the Applicant has been receiving ABA Therapy from Ms Jafari for approximately eight to nine months. Mr GDDC said that Ms Jafari provides her therapy sessions to the Applicant at the family home usually for two to three hours each week depending on what he and his wife request. Later in his evidence, Mr GDDC said that the Applicant will soon have to stop the therapy sessions with Ms Jafari because she needs a senior supervisor to give her direction for the delivery of the Applicant’s treatment. This arrangement and the reasons given by Mr GDDC were not specified either by Ms Govindaraj or Ms Jafari in their respective reports.
57.Mr GDDC was asked by Mr Johnson if Ms Jafari sets him and his wife any homework that they can undertake in order for them to help the Applicant. Mr GDDC said in his evidence that Ms Jafari sets him, and his wife verbal homework tasks at the end of each of her therapy sessions with the Applicant. He said that Ms Jafari usually directs or suggests to the Applicant’s parents how to manage certain situations regarding the Applicant’s behaviours, including how to actively help their daughter in the family home. Mr GDDC said that Ms Jafari has also suggested to him and his wife how to manage the Applicant’s behaviour while the Applicant is shopping with them at the supermarket. An example given by Mr GDDC in his evidence is when the Applicant picked up a crayon that she had spotted in the supermarket and Mr GDDC would not buy it. The Applicant’s usual response would be to cry. Ms Jafari suggested to the Applicant’s parents that they withhold buying what the Applicant is fixated on having despite her engaging in difficult behaviour. Mr GDDC said that he repeatedly followed this technique whilst shopping with the Applicant, which was successful. Mr GDDC said that the improvement in the Applicant’s behaviour was immediate.
58.Mr Johnson referred Mr GDDC to the joint Therapy Assessment Report of Ms Ng, Occupational Therapist and Ms Maddocks, Speech Pathologist, dated 16 October 2020[55]. Mr GDDC confirmed in his evidence that the Applicant had seen Ms Ng and Ms Maddocks for therapy. He said that both Ms Ng and Ms Maddocks would come to the family home, sometimes when he was not there, to provide therapy to the Applicant. Mr GDDC said that Ms Ng and Ms Maddocks would bring to their therapy sessions unhelpful exercises and toys. From Mr GDDC’s observation the programme Ms Ng and Ms Maddocks provided to his daughter was unsatisfactory and too expensive. Mr GDDC said that neither Ms Ng nor Ms Maddocks provided instructions to him and his wife to assist them in being able to help the Applicant when the therapists were not present. Thus, Mr GDDC decided to cease sessions.
[55] See T1F of the T-documents.
59.Mr GDDC said in his evidence that when the Applicant comes home from school her mother helps her get changed and showered. He said that the family eats dinner at about 5pm. He said that after dinner the Applicant will play with her toys. After she finishes playing with her toys, the Applicant will do her homework set by the school and set through therapies, with the assistance of her parents for approximately two to three hours. Following this, the Applicant watches some television. She then brushes her teeth, again with the assistance of her parent(s), and then goes to bed.
60.Mr GDDC said in his evidence that the Applicant started kindergarten at a public school however her parents decided to change her schooling to the MUSEC following recommended advice. The Applicant’s parents were not satisfied with the mainstream school. An advantage of the MUSEC as noted by Mr GDDC in his evidence were the small class sizes, coupled with the minimised student/teacher ratio. Mr GDDC said that his daughter is improving at the MUSEC insofar as she is much happier and is learning and developing at a higher level than she was at her previous school. In terms of allied health therapies, Mr GDDC said that outside specialists are not permitted to attend the school to deliver therapies to their students.
61.Mr GDDC rejected the proposition put to him by Mr Johnson that despite ABAlink providing regular therapy sessions to the Applicant at school for a dedicated five and a half hours each week, the therapy sessions were not effective at that time in helping the Applicant regulate her emotions. Mr GDDC also rejected the proposition put to him by Mr Johnson that the reason he and his wife decided to change the Applicant’s school was due to there being limited to no improvements in the Applicant’s behaviours from the ABA therapy provided to her at her former school.
62.In response to these propositions, Mr GDDC said in his evidence that the decision made by him and his wife to stop the weekly ABA Therapy sessions with ABAlink at his daughter’s former school was because there was insufficient funding. He said that the decision to enrol their daughter at the MUSEC was made after he and his wife became aware of how their daughter was poorly treated at school for the school year. Mr GDDC said that his daughter was made to stay in the corner of the classroom in a box with a mobile telephone during school hours.
63.Mr GDDC accepted the proposition put to him by Mr Johnson that the 30 hours the Applicant attends at the MUSEC each week are helpful to her cognitive development and learning. Mr GDDC said in his evidence that the Applicant receives supportive therapy by an ABA Therapist and a Speech Pathologist outside of the MUSEC who sometimes helps the Applicant with her homework as well as working on other areas of deficit. Mr GDDC confirmed in his evidence that the Applicant is also receiving supportive allied health therapy at school.
64.Mr GDDC was referred to the recommendations made by A/P M in his reports, namely that the Applicant could benefit from a different approach to therapy to improve therapeutic outcomes. Mr GDDC said in his evidence that he did not agree with A/P M’s recommendations, despite his expertise in paediatrics, specialised knowledge in child development and behaviour. Thus he preferred the recommendations of the allied health professionals who have either assessed or treated his daughter over a longer period of time but without the same level of expertise in child development and behaviour.
65.Mr Johnson highlighted the difference in opinion between A/P M and the allied health therapists. This included that the Applicant had seen or continues to see therapists for a higher number of hours than needed according to A/P M. He notes that more hours do not necessarily mean a better outcome for the Applicant. A/P M was of the opinion that through working with the Applicant’s parents and thus decreasing hours of therapy would benefit the Applicant. Mr GDDC said in his evidence that this was already happening by the therapists setting homework.
66.Mr GDDC said in his evidence that it was only in the last nine months that he has become satisfied with the work of the Applicant’s therapists and has noticed the improvements to the behaviours pertaining to the Applicant’s progress. However, he noted the adverse effects that COVID-19 had on the Applicant’s progress mainly due to a reduction in the number of hours of therapies provided.
67.Mr GDDC said in his evidence that since the Applicant has been receiving therapy from Ms Jafari, she has made improvements in respect to her cognitive development and learning. However, Mr GDDC said that the reduced hours of ABA Therapy had an adverse effect on his daughter’s progress.
68.Mr Johnson put to Mr GDDC that the reason for the Applicant’s improvements was because of the help that she was receiving from her parents at home in a secure environment familiar to the Applicant. In response, Mr GDDC said:
I’m not really sure what the amount of treatment she gets from the therapist that she’s getting or, you know, obviously we learning every day as well. To us, everything is new to us and my other two kids are normal. I never had a kid with autism. So every day, whether it’s from the therapist or learning every day life as we go forward, we learn every day how to, you know, treat GDDC or how to help GDDC. How to do things in a different way[56].
[56] See page 24 of the Transcript of Proceeding dated 31 October 2022.

Mr GDDC said in his evidence that he and his wife are learning how to assist the Applicant daily, however, this takes time, and the directions of the Applicant’s therapists are required. When further examined by Mr Johnson, Mr GDDC was unable to determine whether the Applicant’s recent progress was as a result of the allied health professionals, or because of the assistance provided by him and his wife.
Mr GDDC said in his evidence that the Applicant began receiving Occupational Therapy from an Occupational Therapist sometime after she began receiving ABA Therapy. He said that Occupational Therapy was not the first allied health therapy provided to his daughter.
Whilst being cross-examined by Mr Johnson, Mr GDDC gave evidence about the efficacy of Occupational Therapy provided to the Applicant. Mr Johnson referred Mr GDDC to the Occupational Therapy Report of Mrs Thorby dated 29 April 2022[57]. Mr GDDC confirmed in his evidence that his daughter has received Occupational Therapy from Mrs Thorby. The Tribunal notes that this report was not prepared by Mrs Thorby for the purpose of this proceeding and as such does not include the requisite information either in the body of the report or in an annexure to the report the Tribunal expect parties and their legal representatives to include in relation to this kind of evidence as set out in the Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence[58].
[57] See item 7 of the Tender Bundle.
[58] See clause 4 of the Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence.
Mrs Thorby stated in her report that the Applicant attended her clinic for four one-hour sessions where she was reported to have participated in most therapeutic activities set by Mrs Thorby. Mrs Thorby stated that her therapy included working on the Applicant’s communication skills, fine motor skills, and her self-regulation and social interaction skills.
Mrs Thorby stated in her report that during the four one-hour sessions she conducted with the Applicant, she observed four areas that presented difficulties for the Applicant. These included self-regulation, language and communication, motor control and self-care skills.
Mrs Thorby outlined in her report the ‘adaptive behaviour areas’ that the Applicant had low to moderately low scores in all three areas, including communications skills, daily living skills and relationships. The overall summary score in respect of the Applicant demonstrated across the board, a low level comparable to others in her age bracket.
Mrs Thorby also stated in her report that the Applicant had good potential to learn and that her family was willing to learn and incorporate techniques into daily life at their home.
Mrs Thorby recommended in her report that the Applicant continue to receive Occupational Therapy sessions to support her in improving in the trajectory of her behaviour and developmental problems as well as life and sensory-motor skills. Mrs Thorby further recommended that the Applicant receive 45 hours of Occupational Therapy Supports (consisting of 40 hours of therapy to be delivered through a weekly hour-long sessions, three hours for face-to-face carer support and two hours for report writing) as well as six hours per week for a therapy assistant level 2.
Mr GDDC said in his evidence that since receiving Occupational Therapy, he has noticed significant improvements to the Applicant’s capacity to change her clothes, attend to domestic tasks such as brushing her teeth and maintaining her overall hygiene.
Whilst being cross-examined by Mr Johnson, Mr GDDC also gave evidence about the efficacy of Speech Pathology Therapy provided to the Applicant.
Mr GDDC said in his evidence that the Applicant began to receive Speech Pathology Therapy after she started ABA Therapy. Mr GDDC said that the Applicant has seen a few Speech Pathologists. He said that when he and his wife realised that the therapy was not working or was not making improvements to the Applicant’s speech and communication, they decided to stop therapy sessions.
80.Mr GDDC said in his evidence that his daughter received speech pathology therapies from Jenna Royden (Ms Royden), a Speech Language Pathologist at Child Speech Therapy Australia between August of 2020 until March of 2021. In her Speech Pathology Progress Report dated 17 April 2021[59], Ms Royden stated that the Applicant had received weekly speech pathology therapy from her in the period between August of 2020 until March of 2021. Ms Royden identified in her report five therapy goals for the Applicant to achieve from her therapy. These included the Applicant being able to use verbs to describe actions and in sentences during structured tasks, being able to accurately answer questions during book reading and picture tasks, being able to understand the sequence of actions using specific terms, being able to engage in appropriate turn taking during social games with minimal support and finally for the Applicant to be able to categorise items into groups based on their function.
[59] See item 1 of the Tender Bundle.
81.Mr GDDC was asked by Mr Johnson as to the reason(s) why the Applicant ceased attending therapy sessions with Ms Royden in March of 2021. Mr GDDC said in his evidence that the reason for his daughter ceasing sessions with Ms Royden was because he understood that Ms Royden would be on maternity leave and thus not working. However, this evidence is inconsistent with what Ms Vertstappen stated in her Intake Report of 12 April 2021[60], that being the Applicant’s parents ‘are considering stopping speech pathology as the current SLP is leaving and they feel she has made little progress’.
[60] See T1H of the T-documents.
82.Mr GDDC said in his evidence that the Applicant is currently receiving Speech Pathology Therapy from another Speech Pathologist. He said that his daughter has been seeing her current Speech Pathologist for about nine months. He said that he and his wife are very happy with the current Speech Pathologist. He said that he and his wife have seen a lot of improvements in the Applicant’s speech. Mr GDDC said that it was not possible for him to obtain a written report from the Applicant’s current Speech Pathologist because he cannot afford to pay for it.
83.Mr GDDC said in his evidence that the Applicant receives therapy from her Speech Pathologist each week for one-hour sessions at the Speech Pathologist’s clinic. He said that the Speech Pathologist works with the Applicant on her communication and speech and on the Applicant’s use of words.
84.Turning to the letter of recommendation of Ms Wilson that Mr GDDC relies on in respect of his request for additional funding for more Speech Pathology Therapy, the Tribunal notes that Ms Wilson confirmed that the Applicant attended her for speech pathology therapy. Ms Wilson stated that the Applicant’s therapy goals are intended to improve her expressive and receptive language skills, her functional literacy skills and for the Applicant to make improvements in her social communications skills so that she was able to successfully interact with a range of communication partners. Ms Wilson stated that the same therapy goals that she had initially set for the Applicant were to be repeated for the following plan period.
85.Ms Wilson stated in her letter of recommendation that the Applicant (as of 22 April 2022) continued to present with significant speech, language and literacy difficulties, and difficulties in engaging in social interactions. Ms Wilson stated that these deficits are a direct result of the Applicant’s ASD diagnosis. Ms Wilson therefore stated that over the next 12-month period, the Applicant should receive 100 hours of therapeutic supports for individual Speech Pathology Therapy sessions (two hours per week for 50 weeks) and two hours for report writing.
86.Like the reports prepared by Ms Govindaraj and Mrs Thorby, the Tribunal notes that the letter of recommendation was not prepared by Ms Wilson for the purpose of this proceeding and as such does not include the requisite information either in the body of the letter or in an annexure attached to that document the Tribunal expect parties and their legal representatives to include in relation to this kind of evidence as set out in the Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence[61].
[61] See clause 4 of the Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence.
Evidence of Associate Professor M
87.A/P M was called by the Respondent as a witness to attend the hearing via video to give evidence. He was asked some questions about his alternative paradigm of therapy by Mr Johnson in examination-in-chief. Mr GDDC also asked A/P M some brief questions.
88.A/P M is a registered medical practitioner who practices as a developmental paediatrician who has specialised knowledge in child development and behaviour. He graduated with a Bachelor of Medicine and a Bachelor of Surgery in 1984 from the University of Sydney. He obtained postgraduate qualifications in paediatrics in 1992. In 1993, A/P M was awarded a Masters in Public Health from Harvard University, and in 2003 he successfully completed a PhD from the University of Queensland (UQ). He is also a clinical appointment as Associate Professor at the UQ.
89.A/P M has 25 years of clinical and practical experience in assessment of developmental and behavioural paediatrics. This includes a period of four years training at the Children’s Hospital in Boston, United States of America. The work A/P M undertook at this hospital carries recognition in Australia as the Australian Health Practitioner Regulation Agency sub-speciality qualifications in Community Paediatrics.
90.A/P M states his style of practice is explicitly longitudinal. This means that if a child has significant problems, he will see the child on a regular basis over a substantial period of time, ideally helping them to transition to adulthood.
91.A/P M has, for the purpose of this proceeding, prepared three reports. He prepared a report on 23 July 2021[62] (the primary report). He also prepared two supplementary reports on 21 March 2022[63] (first supplementary report) and 7 October 2022[64] (second supplementary report).
[62] See item 13 of the Tender Bundle.
[63] See item 14 of the Tender Bundle.
[64] See item 15 of the Tender Bundle.
92.The Tribunal notes that all three of A/P M’s reports have been prepared for the purpose of this proceeding and in the annexure attached to all three reports, the requisite information the Tribunal expects parties and their representatives to be included in relation to this kind of evidence as set out in the Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence[65].
[65] See clause 4 of the Administrative Appeals Tribunal: Guidelines on Persons Giving Expert and Opinion Evidence.
93.A/P M prepared his primary report after conducting an independent medical assessment of the Applicant in his rooms on 7 July 2021. A/P M was requested to provide his opinion, as a developmental paediatrician, by preparing and providing a report, setting out his professional opinion based on his assessment of the Applicant and having reviewed copies of the written material that had been lodged with the Tribunal for the purpose of this proceeding before the date of the assessment. This material was provided to him with the letter of instruction Mr Sheedy sent to him on 6 July 2021. His primary report also provided answers to the questions that were set out in the annexure to that letter of instruction[66].
[66] See the letter of instruction Mr Sheedy sent to A/P M on 6 July 2021 at item 13 of the Tender Bundle.
94.A/P M prepared a supplementary report on 21 March 2022 in response to a second request to prepare and provide his opinion based on him having reviewed copies of further written material that Mr GDDC lodged with the Tribunal. This material was provided to him with the second letter of instruction Mr Sheedy sent to him on 14 March 2022. His first supplementary report also provided answers to the supplementary questions that are set out in the annexure to the second letter of instruction[67].
[67] See the letter of instruction Mr Sheedy sent to A/P M on 14 March 2022 at item 14 of the Tender Bundle.
95.A/P M prepared a second supplementary report on 7 October 2022 in response to a third request to prepare and provide his opinion based on having reviewed copies of further written material Mr GDDC lodged with the Tribunal. This material was provided to him with the third letter of instruction Mr Sheedy sent to him on 19 September 2022. His second supplementary report also provided answers to further supplementary questions that are set in the annexure to the third letter of instruction [68].
[68] See the letter of instruction Mr Sheedy sent to A/P M on 19 September 2022 at item 15 of the Tender Bundle.
96.Mr Johnson referred A/P M to his alternative paradigm of therapy, which the Tribunal understands encapsulates a more holistic approach to therapies being provided to the Applicant by ABA Therapists, Occupational Therapists and Speech Pathologists. A/P M was asked by Mr Johnson to assist the Tribunal by explaining in his evidence what is meant by the therapy model identified by A/P M in his first supplementary report as ‘train the trainer’, an alternative A/P M proposed, in his first supplementary report, as an alternative model of therapy for the Applicant[69].
[69] A/P M discusses the train the trainer model in his first supplementary report at paragraphs 4.2.1.2, 4.2.2.3, 4.2.3.1, 4.2.3.2, 4.2.3.3, 4.2.5 and 4.3.1.2.2.
In his evidence, A/P M said that ‘the train the trainer’ model of therapy means that the majority of therapeutic wisdom is used to train those who work with the child, in this case, mainly the parents and the teachers at school so that those who work with the child can then use therapeutic understanding and strategies in the way they care and manage the child’[70].
[70] See page 27 of the Transcript of proceeding dated 31 October 2022.
A/P M was asked by Mr Johnson to give an opinion on whether the ‘train the trainer’ model was more beneficial to the ‘1:1 model of therapy’. Alternatively, or if it was individually dependent. A/P M said in his evidence that his opinion is based on his professional experience as a paediatrician. He said that the ‘train the trainer’ model is more appropriate because it provides a greater opportunity for therapeutic benefit, and moreover, it trains the parents in these therapeutic techniques thus enabling them to work with the Applicant. A/P M also said that the ‘train the trainer’ model is empowering whereas the therapists working 1:1 with children may cause the Applicant to miss out on these important benefits as she develops.
A/P M said in his evidence that in his opinion he would recommend a combination of a 1:1 therapy model and ‘train the trainer’ model. This is the first line of therapy but coupled with 1:1 therapy in order to ensure an even learning trajectory whereby the Applicant’s parents’ knowledge can be updated to enable them to work with their daughter based on best practice techniques. A/P M’s combined recommendation is based on his observations that none of the therapy models alone to date had been successful in preventing the Applicant from becoming agitated when engaging in non-preferred activities, which according to A/P M significantly impeded the Applicant’s learning abilities. Thus, A/P M views it as apparent that the Applicant needs to learn strategies to stay and remain calm to benefit from any therapeutic model. Without an alternative approach to therapy, A/P M is of the view that there will be limited progress in the Applicant’s behaviours and learning.
Mr Johnson referred A/P M to the oral evidence that Mr GDDC had given to the Tribunal earlier at the hearing about the decisions made by the Applicant’s ABA Therapists and Speech Pathologists to involve the Applicant’s parents. This involved giving the Applicant’s parents homework to help the Applicant by building her capacity at home to moderate her behaviours at home and in the community and also engage in learning and development.
Mr Johnson also referred A/P M to other oral evidence that Mr GDDC had given to the Tribunal earlier at the hearing about applying a technique he had learned from home-based ABA Therapy sessions, which he considered to have had immediate effect. This involved a situation between the Applicant and her parents at a supermarket in the past where the Applicant would demand to have crayons bought for her and where the Applicant was told ‘no’ she would engage in challenging behaviours which were difficult to curtail. However, in recent times where this scenario presented itself, the Applicant’s parents applied therapeutic techniques that they had been taught successfully at home from the Applicant’s Therapist. Mr GDDC considered that applying this technique was effective and helpful in modifying his daughter’s behaviour.
With reference to the two examples cited by Mr Johnson, A/P M said in his evidence that he could see that the ‘train the trainer’ model had some benefit, albeit limited. To address the Applicant’s complex behaviours, A/P M ascertained that a more nuanced plan of therapy was required. In this regard it is noteworthy that there is some improvement to the Applicant’s behaviours, however, a more holistic therapy model is required to address the particularly challenging behaviours the Applicant engages in.
A/P M said in his evidence that the Applicant’s capacity is that of a very young child between the ages of two to three years. He said that if the Applicant’s current behaviours are not addressed through alternative and appropriate models of therapy, she will encounter further behavioural problems continuing through puberty and beyond.
Mr Johnson referred A/P M to the report of Ms Jafari[71] with particular reference to her having provided home based and individualised behavioural support therapies to the Applicant at her home. Mr Johnson asked A/P M if after reviewing Ms Jafari’s report he would change any of the opinions and recommendations he had given in his three reports for an alternative therapeutic paradigm. A/P M responded in his evidence:
[71] See item 9 of the Tender Bundle.
The first is an acknowledgement that this kid spends a major part of her waking hours during school term at school and that particularly at her age, I would expect somebody to have a very explicit strategy for collaborating with the school to achieve these therapeutic goals. The second thing is even though they call it ABA with the final A being analysis, I didn’t read any proper analysis about why interventions up to this point haven’t worked because, you know, she’s a 10 year old kid or a nine year old kid. It’s just kind of meaningless to keep doing the same thing if it doesn’t work. And so I would expect somebody new coming into the system to look and think, okay, what’s everything that has been done before and why hasn’t it worked. And to develop a hypothesis out of that that then guides your intervention. But just more of the same – I just can’t see how it’s justified[72].
[72] See page 28 of the Transcript of Proceeding dated 31 October 2022.
In cross-examination, Mr GDDC put to A/P M that although the Applicant has a diagnosis of ASD, she still has the capacity to learn. Mr GDDC said to A/P M that since their meeting on 7 July 2021 his daughter had made significant improvements. In support of this proposition, Mr GDDC referred A/P M to the report of Ms Jafari[73]. In response, A/P M was of the view that the Applicant did have the capacity to learn and develop, however, the correct therapeutic interventions would be required for that to be effective as set out in A/P M’s reports.
[73] See item 9 of the Tender Bundle.
DISCUSSION

The sole issue for this Tribunal to determine is whether the requested supports as identified at paragraph [11] of this decision are reasonable and necessary for the purpose of section 34 of the NDIS Act.
In support of his request, Mr GDDC relies on the reports written by allied healthcare professionals, including Ms Govindaraj, a Behaviour Consultant, Mrs Thorby, an Occupational Therapist and Ms Wilson, a Speech Pathologist. Mr GDDC has also lodged with the Tribunal other reports written by various allied healthcare professionals who have either assessed the Applicant or provided therapies to her at different times. Included in these reports are recommendations for allied health therapies as has been provided, but with increased hours of therapy. Mr GDDC also relies on these reports more broadly in supporting his request.
In support of their position on what they submit is reasonable and necessary for the purpose of section 34 of the NDIS Act, the Respondent relies on the opinions and recommendations given by A/P M in his three reports.
The Respondent argued that three of the reasonable and necessary criterion in section 34 of the NDIS Act has not been satisfied on the basis of there being insufficient evidence and furthermore omissions in the reports prepared by the various allied healthcare professionals. This is in regard to subsections 34(1)(c), (d) and (e) of the NDIS Act.
The various reports prepared by the allied healthcare professionals before the Tribunal appear to not include alternative forms of therapy, which may have better and effective therapeutic outcomes. Indeed, there is little substance and/or analysis in each report, which is supported by A/P M in his reports.
In his evidence, Mr GDDC accepted that there were related outcomes across the spectrum of allied healthcare disciplines that the Applicant has over a considerable period of time sought to address her behavioural deficiencies associated with her ASD diagnosis.
It is apparent to the Tribunal that there are difficulties and inconsistencies documented in the various reports in how to address the Applicant’s complex learning and behavioural needs. In particular, it is noted that there is a lack of cohesion and continuity as set out in the reports of the various allied healthcare professionals as to the intensity and number of hours of allied healthcare therapies that the Applicant should receive.
The Tribunal notes that there have been substantial changes from the Applicant’s treatment plan over time. In his evidence, Mr GDDC gave examples of stressors, including COVID-19 and a lack of satisfaction with therapists and their availability to provide therapy. This according to Mr GDDC led A/P M to ascertain that the therapeutic model that has to date been provided to the Applicant, which was regarded as disunified and thus concluded that the funding to continue with the same type of therapies with more hours would not be reasonable, necessary, and would result in little to no progress for the Applicant.
The Tribunal notes Mr GDDC’s submissions about his daughter’s substantial progress from receiving continued allied healthcare therapies from the various professionals who have prepared reports. The Tribunal accepts that some of the therapy has been beneficial to the Applicant. However, with regards to the opinion of A/P M and Mr GDDC’s own oral evidence, the progress to date could not be described as substantial. This is apparent from A/P M’s evidence regarding the need to change the paradigm of therapy as opposed to maintaining the same form of therapy with more hours.
As Mr GDDC specifically relies on the recommendations outlined in the reports prepared by Ms Govindaraj, Mrs Thorby and Ms Wilson to support his request to increase funding to the Applicant’s Capacity Building Supports Budget for an increase in the number of hours of weekly ABA Therapy, Occupational Therapy and Speech Pathology Therapy, it is necessary for the Tribunal to assess these reports and give them appropriate weight, against the expert evidence of A/P M.
Firstly, in relation to the request for more funding and more hours of ABA Therapy, A/P M stated in his second supplementary report that Ms Govindaraj’s recommendations were flawed for a number of reasons; including a failure to establish how this therapy could engage with the Applicant’s other specialised therapies and education. Moreover, Ms Govindaraj’s report failed to situate the environmental setting the therapy would occur in. With regard to the ‘independent behaviour technician’, Ms Govindaraj’s report fails to give any detail about training and her/his role. In particular, it is noteworthy that this report does not address the underlying failures in the therapist’s capacity that have not led to any substantial improvements with regard to the Applicant’s behavioural deficiencies.
Secondly, in relation to the request for more funding and more hours of Occupational Therapy, the Tribunal notes that A/P M accepted Mrs Thorby’s recommendation for three hours of face-to-face parent/carer support and training to be appropriate in the circumstances of this case. However, he stated in his second supplementary report that Mrs Thorby’s report failed to make use of a ‘train the trainer’ model of therapy and he questioned the report’s efficacy as the therapy would not be in an environment familiar to the Applicant. Furthermore, A/P M stated in his report that Mrs Thorby’s recommended strategies were unclear and thus it would not be possible to determine whether the therapy, including with the proposed therapy assistant would be beneficial to the Applicant.
Thirdly, in relation to the request for more funding and more hours of Speech Pathology Therapy, A/P M stated in his second supplementary report that Ms Wilson’s report was unclear. In particular, there were no detailed findings regarding the Applicant’s therapy goals and expected outcomes. A/P M stated in his second supplementary report that the proposed recommendation of Ms Wilson needed scrutiny because of the need for consistency and effective methodologies in order that they are synchronous and complimentary to her educational and other commitments.
Turning to the proposed model of therapy advocated by A/P M in his reports as to the number of hours of therapy outside of school would decrease but be more cohesive across the board insofar as there would be continuity and consistency in how the therapy would be delivered to the Applicant or in other words the ‘train the trainer’ model as discussed above. It appears both Mr GDDC and his wife are willing and able to provide in-home therapies to the Applicant GDDC and that this has had a beneficial effect on the Applicant’s behaviours and development, as stated by Mr GDDC in his evidence.
This would in A/P M’s opinion allow the Applicant to receive therapies both at home and at school with the involvement of her parents, to help her build her capacity within the home and, with the involvement of her teachers, to help her to build her capacity at school, given that the MUSEC provides a specialised education programme to help children with difficulties to reach their potential.
CONCLUSION
For the reasons outlined above, the Tribunal is not satisfied that the requested support meets the requirements of subsection 34(1)(c), (d) and (e) of the NDIS Act. Therefore, the Tribunal has decided to set the decision under review aside and to remit it to the Respondent in accordance with the following direction:
(1)To include the following reasonable and necessary supports in the Applicant’s Plan over a 12-month period:
(a)30 hours of Occupational Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing;
(b)30 hours of Speech Pathology Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing;
(c)30 hours of ABA Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing; and
(d)provider travel for each of Occupational Therapy, Speech Pathology Therapy and ABA Therapy to allow for implementation of those therapies in the Applicant’s home and school.
DECISION
Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency in accordance with the following direction:
(1)to include the following reasonable and necessary supports in the Applicant’s Plan over a 12-month period:
(a)30 hours of Occupational Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing;
(b)30 hours of Speech Pathology Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing;
(c)30 hours of Applied Behavioural Analysis Therapy comprising four hours of initial training, fortnightly sessions (24 hours over 48 weeks) and two hours for report writing; and
(d)provider travel for each of Occupational Therapy, Speech Pathology Therapy and Applied Behavioural Analysis Therapy to allow for implementation of those therapies in the Applicant’s home and school.
I certify that the preceding 122 (one hundred and twenty-two) paragraphs are a true copy of the reasons for the decision herein of Member P Smith
.................................[SGD].......................................
Associate
Dated: 31 January 2023

Date of hearing: 31 October 2022

Advocate for the Applicant: Mr GDDC

Counsel for the Respondent Mr G Johnson

Solicitor for the Respondent Mr M Sheedy, Sparke Helmore Lawyers

[2023] AATA 66

31 January 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Expert Evidence

Procedural Fairness

Date of hearing:	31 October 2022
Advocate for the Applicant:	Mr GDDC
Counsel for the Respondent	Mr G Johnson
Solicitor for the Respondent	Mr M Sheedy, Sparke Helmore Lawyers