GFWJ and National Disability Insurance Agency
[2023] AATA 3789
•15 November 2023
GFWJ and National Disability Insurance Agency [2023] AATA 3789 (15 November 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/1131
Re:GFWJ
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
DECISION
Tribunal:Senior Member Katter
Date:15 November 2023
Place:Brisbane
The decision under review is affirmed.
................................[SGD]................................
Senior Member Katter
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports –whether requested additional support is reasonable and necessary pursuant to sub-section 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
ZNDV and National Disability Insurance Agency [2014] AATA 921
REASONS FOR DECISION
Senior Member Katter
15 November 2023
This is a review of an internal review decision by the Respondent[1] as to a Statement of Participant Supports.[2]
[1] Hearing Bundle, R1, page 10.
[2] Hearing Bundle, R1, page 17.
BACKGROUND
The Applicant was born in June 2014. The Applicant has been diagnosed with (and it is not contended otherwise): Autism Spectrum Disorder (level 3), Attention Deficit Hyperactive Disorder and Chromosomal Deletion.[3]
[3] Hearing Bundle, R4, page 206.
An application for review of decision was filed in the Tribunal on 10 February 2022.[4] The representative of the Applicant completed the Application form filed with the Tribunal.[5] As to the date of receipt of the decision to be reviewed, 10 February 2022 is referred to in the form.[6] As to ‘why the decision received on that date is wrong’, it was stated in the form:[7]
“They are not taking into a count a non-verbal child’s needs. They were given a letter from [the Applicant’s] speech therapist and have completely disregard what [the Applicant] requires. Last year when Changing [the Applicant’s] speech therapy days from one day a week to two days a week, we got so much more of [the Applicant] making out small words. (IE I want … red car). [The Applicant] is a seven year old child who needs his parents to do his to help him with his day to day living. [The Applicant] needs assistance to shower, wash and to dress himself. [The Applicant] needs assistance when it comes to toileting (constant reminders on going to do a wee or to do a poo). [The Applicant] can’t throw a ball or catch a ball. [The Applicant] requires a weekly OT and twice weekly for speech. We have received not enough funding. All we are getting told is that [the Applicant] only needs one speech session a month and the same as ot. [The Applicant] is currently having Mert therapy. This is to help [the Applicant’s] brain waves function in a normal way. Mert is NDIS registered.”
[4] Hearing Bundle, R1, page 7.
[5] Hearing Bundle, R1, page 8.
[6] Hearing Bundle, R1, page 10.
[7] Hearing Bundle, R1, page 11.
On 19 January 2022 the Respondent approved a participant plan for the Applicant, stating supports that were to be provided to the Applicant by the National Disability Insurance Scheme between 19 January 2022 and 19 January 2023.[8]
[8] Hearing Bundle, R1, page 82.
The Applicant’s representative requested an internal review of the decision of 19 January 2022.[9] As referred to above, there is an internal review decision of the Respondent dated 10 February 2022, confirming the decision of 19 January 2022.[10] The Applicant, as referred to above, lodged the application for review of the internal review decision of the Respondent on 10 February 2022.[11]
[9] Hearing Bundle, R1, page 14.
[10] Ibid.
[11] Hearing Bundle, R1, page 7.
After the application was filed in the Tribunal on 10 February 2022,[12] there was a remittal from the Tribunal to the Respondent for reconsideration on or about 16 August 2022.[13] Further to that remittal, a new plan was approved as to the Applicant, having a start date of 24 August 2022 and a review date of 24 August 2023. By correspondence, dated 24 August 2022, a National Disability Insurance Scheme plan was communicated to the Applicant’s parents.[14] The “About Me” in that plan stated:[15] “ … [The Applicant] … lives with his father, … and his step mother … . [The Applicant’s] grandmother … known as nanna also supports the family”. That plan[16] included total funded supports of $62,814.42,[17] including “core supports” (“funding for assistive technology”)[18] and “capacity building supports” (the “support of allied health professionals”).[19] That plan, starting on 24 August 2022, states the following ‘goals, objectives and aspirations’:[20]
(a)‘to be able to develop … speech and language skills and improve … communication so [the Applicant] is able to engage and interact with those around [the Applicant];
(b)to be equipped with the right social skills … to everyday settings;
(c)to continue to grow strength in … gross and fine motor skill development;
(d)to continue … progression in … cognitive development and … learning skills; and
(e)to have the right strategies in place [to be] able to have a balanced and healthy emotional wellbeing and regulation practice.’
[12] Hearing Bundle, R1, page 7.
[13]Hearing Bundle, R4, page 206.
[14] Hearing Bundle, R2, page 187.
[15] Hearing Bundle. R2, page 190.
[16] Hearing Bundle. R2, pages 187-198.
[17] Hearing Bundle, R2, page 195.
[18] Ibid.
[19] Hearing Bundle, R2, pages 196-197.
[20]Hearing Bundle, R2, pages 192-193.
In the plan, with the start date of 24 August 2022, the statement of supports are as follows:
(a)Consumables Budget………...……………..................................................$1,000.00
(b)Daily Activities Budget (156 hours)[21]…………………………………………..$9,698.52
(c)Speech and Occupational Therapy (156 hours) Equine/Aqua Therapy (36 hours)…………………………………………………………………………...$37,246.08
(d)Funding for Psychology (2 hours)……………………………………………….$428.82
(e)Specialist Behaviour Intervention Support (30 hours)…………………...…..$6,432.30
(f)Behaviour Management Plan and Training (20 hours)……………………....$3.879.80
(g)Individual Social skills development (30 hours)……………………………...$2,126.10
(h)Support Co-ordination, level 2 (20 hours)…………………………………….$2,002.80
Total Funded Supports………………………………………………………..$62,814.42
[21]‘Allocated for flexible support within the home, which may include, but is not limited to, assistance with personal care, respite, house/yard maintenance and assistance with other activities of daily living.’
The hearing commenced on 7 August 2023 and concluded on a subsequent hearing day on 22 August 2023. The Respondent made oral closing submissions on 22 August 2023. After hearing the Respondent’s oral closing submissions, the representatives of the Applicant stated: “I don’t know what to say. Basically we have provided all the evidence that we think we needed to”.[22] The Applicant’s representatives were then provided with an opportunity within two weeks to file any written submissions or indicate whether they wish to make oral submissions on the phone, by video or in person, subsequently.[23] The Applicant’s representatives did subsequently file further written articulation. The Respondent was then given a further two weeks in which to reply to any written submissions of the Applicant, which it did.
[22] Transcript 22 August 2023, P-108, lines 13-14.
[23] Transcript 22 August 2023, P-108, lines 29-33.
ISSUE
At the hearing on 7 August 2023 the parent of the Applicant referred to the only issue being the cost of the Magnetic e-Resonance Therapy (“MeRT”) treatment, previously and to occur.[24] The Respondent then submitted that the only issue was whether $20,500 in funding for MeRT therapy should be in the Applicant’s plan, which would be for 10 sessions over two weeks.[25] The Respondent later submitted that:[26]
“The issue is whether that therapy should be included in the applicant’s plan. I understand that it’s for the MeRT sessions already done, as well as for 10 further sessions over two weeks. I understood the applicant this morning to indicate that they’re not seeking any extra funding in the plan for MeRT therapy, but permission to use the existing funding for MeRT therapy.
The question is, if it’s reasonable and necessary for the MeRT therapy to be included within section 34. However, the use of funding in the plan that has been provided for the provision of speech therapy, OT, psychology, the use of that for MeRT therapy does detract from the reasons why that – those other therapies have been included based on the recommendations of the treating practitioners.
In relation to MeRT therapy and section 34, the agency disputes that section 34(1)(a), (b), (c), (d), and (f) are satisfied. And as I said in opening, only section 34(1)(e) is conceded.
There’s no formal onus of proof in the tribunal. However, the tribunal has to be positively satisfied on the evidence that each of the requirements in section 34 are met. And so in so far as there is an insufficient of evidence or any uncertainty in the evidence, that does not work in an applicant’s favour.”[24] Transcript 7 August 2023, P-10-12.
[25] Transcript 7 August 2023, P-13, lines 8-14.
[26] Transcript 22 August 2023, P-89, lines 42-47 and P-90, lines 1-16.
The Applicant referred to the Brain Treatment Centre as being a registered NDIS provider.[27] The Respondent submitted that being a registered provider is not relevant as to whether or not there is the mandatory satisfaction as to the sub-paragraphs in section 34(1). The Respondent submitted that registration is administered by the NDIS Quality and Safeguards Commission, rather than by the Respondent, where that is referred to in the provisions of the Act, including sections 73C(1) and 181F. The issue is whether or not there is the ‘satisfaction’ as to the sub-paragraphs in section 34(1) of the Act as to the Applicant, with the registration or otherwise of the Brain Treatment Centre not being relevant to the satisfaction required by section 34 of the Act as to the Applicant.
[27] Transcript 7 August 2023, page 9, lines 34-35.
As referred to above, the Applicant referred to the use of existing funding for other supports for MeRT therapy. The Respondent submitted that section 46(1) of the Act states that a participant who received an NDIS amount must spend in accordance with the participants plan. Further, that section 182(3) of the Act states that if a person does not comply with section 46(1) in relation to an NDIS amount, then an equal amount is due as a debt to the agency. The issue is whether or not the MeRT therapy should be included in the Applicant’s plan according to section 34 of the Act, in that the use of funding for other supports cannot be used for MeRT therapy.
Section 34 of the National Disability Insurance Scheme Act 2013 (Cth)
“Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).”
Dr Hariri, a practitioner ‘employed by the Brain Treatment Centre’, recommended the MeRT Therapy treatment of the Applicant.[28] Dr Hariri describes the treatment as a “novel and highly individualised form of neuromodulation therapy that identif[ies] and targets brain areas that are dyssynchronous”.[29]
[28] Hearing Bundle, R1, page 57.
[29] Ibid.
As to the MeRT therapy, the Father of the Applicant stated:[30]
[30] Transcript 22 August 2023, P-53-54.
“ … So January ’22, [the Applicant] did it for six weeks, and then the last Easter holidays [the Applicant] did it for two weeks.
… And how often do you recall was – was the – the sessions or - the session – w[h]en was it?
… So – so the first session is your consultation, so they map your brain and see how your brainwaves are working. There is evidence what [the Applicant’s] brainwaves was doing, it was very – very quiet. So they wanted to do a two week trial to see if it actually worked, so they did another EEG after 10 sessions and it proved that [the Applicant’s] brainwaves started popping up.
… And where were you – were you taking [the Applicant] to this?
… I was next – yes, I was right next to [the Applicant].
… Yes. And where were you going for this? So this is in 2022.
… Morayfield. …
… And was it one particular person there that you were dealing with, or did you move from room to room, or - - -
… No. So it’s the same room, but the only two technicians there is Lawrence and Gary, and Lawrence is – he’s more involved than Gary. He – he’s studying his PhD, so – and he knows more about the - - -
… And what’s Lawrence’s surname? Is it Ezedinma?
… Ezedinma, yes.
… And what about Gary? What’s Gary’s surname?
… I’m not too sure. I don’t remember.
… What – what – are they both in the room, or how does it work?
… No. So only one. So it started off with Lawrence, but because Lawrence was studying, he was only there part time, where Gary was full time. So [the Applicant] did a few sessions with Lawrence and then went over to Gary. Then the next week [the Applicant] would have one or two sessions with Lawrence and then – they just swapped. They swapped the children about between them two.
… And what’s your observation about [the Applicant] in terms of the way to – does [the Applicant] know where [the Applicant] was going?
… Yes. At first [the Applicant] would stand. [The Applicant] didn’t know what was going on. But after – after I think it was two sessions – it was going into the Wednesday. … That’s when we started to see progress in [the Applicant]. It was the third day, that … – I heard [the Applicant] talk for the first time. … on the beach. [The Applicant] sung Happy Birthday to my sister, and yes, that was the first time [the Applicant] has even spoken a word. We couldn’t even get yes or no out of [the Applicant].
… And when [the Applicant] sang Happy Birthday was the first articulation … .
… Yes. It was the very first thing, and then after the fourth day, it was more, then the fifth day, more and then the six weeks, … a completely different child.
… And when was that visit to the beach?
… Well, while [the Applicant] was getting the MeRT therapy, I stayed in a hotel on the Sunshine Coast, just so we didn’t have to drive every day. And so it was – we went to the beach pretty – pretty much every day. After the – for this therapy to work, [the Applicant] had to be relaxed, and so we went to the beach every day.
… And when – how long were these sessions lasting for?
… So they go for 31 minutes, I think they are, and the actual – the EEG where they scan the brain, it takes about half an hour.”The other parent of the Applicant stated:[31]
[31] Transcript 22 August 2023, P-64 and 65.
“ … So [the Applicant] sits in a chair [and the Applicant] gets this round thing – magnet on [the] head, and it’s [on] for 15 seconds, and then it’s off. [The Applicant’s Father] and I have had it done on our hand, and it gives you the most minor … little tick, and [the Applicant] loves it. [The Applicant] is obsessed with it.
… And so how long did that program that – this was – did you say 2021? How long was that going for?---So that was for the first six weeks, and then [the Applicant] did another two-week block at the end of the year, toward – I think it was the September school holidays, and - - -
… End of 2021?
… Yes. And then in 2022 [the Applicant] did an Easter block.
… And is that the last time that [the Applicant] has … done the MeRT therapy?
… Yes. And I have noticed a decrease. So before [the Applicant] started it, I struggled to get him to sleep through the night, and once [the Applicant] did the first week of MeRT therapy, [the Applicant] started sleeping through the night and waking up at – [the Applicant] would go to bed at 7 and … would wake up at 7.
… So was all the MeRT therapy, that is, 2021 and 2022, was that all when [the Applicant] was seven years of age?
… Yes.
… And … hadn’t done it before being seven and hasn’t done it since … ?
… Yes. Ans the – and what happened with – did you observe directly any – what about after the sessions? Did you observe anything directly after a session or sessions in terms - - -?
… so after the first week I noticed there was change in [the Applicant’s] behaviour for the better. Like, beforehand I would have to sit him in the shopping trolley, so [the Applicant] didn’t run off on me – where I was able to trust [the Applicant] to hold onto the side of the trolley and walk with me.
… And were there other therapies going on around just before, during this period, just after this period? Aqautherapy? Equine therapy?
… [the Applicant] has always done speech and OT and swimming lessons and then we ceased swimming lessons during COVID and then … did it through school and now we’ve just started it again as a weekly thing.”Mr Ezedinma, a medical technician at the Brain Treatment Centre stated:[32]
“ … What are the benefits you see in the [the Applicant]?
… So I met [the Applicant] in 2022, because I had the privilege of doing [the Applicant’s] EEG, and over the course of 2022 to when I saw [the Applicant] last seems to be – and in my observation seeing [the Applicant] coming into practice and while delivering the treatment … , I’ve made significant improvement around is anxiety, sensory – sensory abnormalities is really just [the Applicant’s] sensitivity to touch, especially when you’re trying to … do a procedure like an EEG … , seem to have improved during the course of the time I interact with [the Applicant]. Agitation, irritability, the numbers of tantrums and meltdowns in – and I’m speaking about during my 20-40 minutes time with [the Applicant]. Also an improvement around focus and concentration, and – because how I can judge that is while [the Applicant’s] receiving therapy, … able to be on [the Applicant’s] phone or iPad, and in the beginning … could skip videos really erratically what I could see. Over the time I was delivering therapy, [the Applicant] could take … time and watch a video. Maybe [the Applicant] does have that interest in it, but there does seems to be more focus and concentration around that. More engagement, especially with regards to eye contact. I usually make it a case of points to call the name of the participant and see how much they’re able to look at me and not just look through me – give high fives or fist bumps – and … seems to have – therapy progress seems to be way much better with regards that. More ordered responses: you could have said what did [the Applicant] have for breakfast or any other question you could ask; it’s not just looking through me, but … could give some responses to questions I asked. I think – yes, that at the top of my head is things I could recall from the time I had spent with him.”
[32] Transcript 22 August 2023, P-81, lines 17-40.
As to the “significant improvement”[33] in the Applicant, Mr Ezedinma stated that that was from “simple observation basically”,[34] rather than any testing or objective measures by which there was an assessment of the Applicant’s developmental progress before and after MeRT.[35] Mr Ezedinma agreed that MeRT is ‘not a recognised treatment modality for Autism Spectrum Disorder but is in the nature of research or experimentation in Australia’.[36] Mr Ezedinma further stated that ‘large, controlled, randomised trials are required to demonstrate the efficacy and safety of MeRT in children’.[37] Mr Ezedinma acknowledged that the efficacy and safety of MeRT had not been demonstrated in children with Autism Spectrum Disorder.[38]
[33] Transcript 22 August 2023, P-81, line 21.
[34] Transcript 22 August 2023, P-83, line 25.
[35] Transcript 22 August 2023, P-83, lines 38-46 and P-84, lines 1-5.
[36] Transcript 22 August 2023, P-84, lines 28-33.
[37] Transcript 22 August 2023, P-84, lines 43-46.
[38] Transcript 22 August 2023, P-86, lines 22-24.
Associate Professor McDowell, a specialist peadiatrician in child development, referred to a letter from the Brain Treatment Centre as to findings as to the Applicant after nine MeRT sessions.[39] The Applicant also referred to reports of EEG mapping as to the Applicant dated 11 January 2022,[40] 14 January 2022,[41] 16 February 2022[42] and 9 March 2022.[43] Associate Professor McDowell stated:[44]
“ … Why would that evidence not indicate that MeRT is working for the Applicant?
… There’s a bunch of reasons. Firstly, any change in EEg findings, there needs to be background evidence if that has any kind of predictive meaning about clinical benefit, because EEG findings change all the time. So just a change in EEG in and of themselves without any background research to interpreter the significance of them I wouldn’t regard as very meaningful. The narrative feedback and the changing in test-retest, there’s no indication that people have lied on that, but it falls in two categories. One is that it can be in the placebo zone, and the second is it’s just anecdote. It’s not defined against any kind of background objective measure. It’s just people’s interpretations. And people who are open – like if you going to determine benefit of things there has to be some objectivity, and I think these are people in the situation. So I’m not saying that there’s any problem with it, but it’s not objective. Again medicine, like if I was using medication to treat a child, I wouldn’t regard that as sufficient level of evidence to actually indicate that I was getting benefit from the medication as expected. That’s just people saying, ‘I think things are better’.
… Are there any other reasons?---When you say ‘Are there any other reasons’, for that not being evidence?
… Yes?---Look the interpretation of this is that it might have helped the child and it might not. So I’m not saying it didn’t, all I’m saying is that evidence in and of themselves is not evidence that those particularly interventions led to the changes document, and secondly, whether the changes documented were actually meaningful to child and sustained for the child. So it falls in a very nebular zone of evidence.
… Thank you, you didn’t examine the applicant?---No, I did not. This is just passed on paper only.… Yes, how might an examination of the applicant influence your opinion regarding the merits of MeRT?---There were two issues that I was asked to give opinion in, one I more of a scientific look at the intervention – of the MeRT methodology itself, and then on the child themselves. Basically, if you just looking at an individual child for clinical evidence of benefit, there really has to be two things. Once is that the change attributable to the intervention. It has to be meaningful to the child, it’s not just – you know, so it would have to be clinically significant. And secondly, it has to be sustained. If I give you an example, if you had a massage, you might feel better for the … after the massage, but it doesn’t mean the benefits are sustained. So an intervention in child development has to be something that leads to clinically significant and sustained change. And also, you’ve got to be pretty sure that it’s attributable to that intervention and not the myriad of other things going on in the child’s life.”[39] Transcript 7 August 2023, P-32, lines 36-39.
[40] Exhibit 2. Transcript 7 August 2023, page 5, line 18.
[41] Exhibit 3. Transcript 7 August 2023, page 5, line 21.
[42] Exhibit 4. Transcript 7 August 2023, page 5, line 26.
[43] Exhibit 5. Transcript 7 August 2023, page 5, line 30.
[44] Transcript 7 August 2023, page 32, lines 41-46 to page 33, lines 1-39.
As to whether the MeRT therapy was, or is likely to be, effective and beneficial for the Applicant, having regard to current good practice, the Respondent submitted that the evidence before the Tribunal as to the Applicant does not provide a basis for the mandatory satisfaction in that regard. There is not evidence before the Tribunal as to the beneficial nature of the MeRT therapy for the Applicant having regard to current good practice: as stated by Mr Ezedinma there is not a regard to good practice by testing or objective measures; testing the Applicant’s developmental progress before and after MeRT.[45] Mr Ezedinma stated that the beneficial nature of MeRT therapy for the Applicant is not a current good practice, in that the treatment modality for Autism Spectrum Disorder is in the nature of research or experimentation in Australia.[46] Associate Professor McDowell also stated that there is not evidence, as referred to above, of the beneficial nature of the MeRT therapy for the Applicant having regard to current good practice: “ … it might have helped the [Applicant] and it might not. So I’m not saying it didn’t, all I’m saying is that evidence … that those particularly interventions led to the changes … , and secondly, whether the changes documented were actually meaningful to [the] child and sustained for the child. So it falls in a very nebular zone of evidence.”[47]
[45] Transcript 22 August 2023, P-83, lines 38-46 and P-84, lines 1-5.
[46] Transcript 22 August 2023, P-84, lines 28-33.
[47] Transcript 7 August 2023, P-33, lines 16-21.
The MeRT therapy, on the evidence, is not effective and beneficial for the Applicant having regard to current good practice. There is not therefore the mandatory satisfaction in relation to the provision of MeRT therapy as required by section 34(1)(d) of the Act. There must be satisfaction of all of the sub-paragraphs in section 34(1) of the Act.[48] As referred to above, the Respondent submitted only that there could be satisfaction as to section 34(1)(e) of the Act. Section 34(2) of the Act states that the rules may prescribe methods for criteria to be applied or matters to which the CEO is to have regard, in deciding in whether he or she is satisfied as mentioned in any of the paragraphs (1)(a)-(f). Further, the Respondent submitted that rule 5.1(a) of the rules is relevant in that a support will not be provided or funded under the Scheme if it is likely to cause harm to the Applicant, or where there is insufficient evidence as to whether or not the particular treatment is likely to cause harm to the Applicant. The Respondent also submitted that rule 5.1(c) of the rules states that a support will not be provided or funded if it duplicates other supports delivered under alternative funding through the Scheme, where the Applicant has other funding for therapies intended to increase attention span, concentration, sociability, clarity of thought sleep quality, ability to adapt to change and reduction in anxiety as referred to by Dr Harari.[49] The Respondent submitted that there could not be satisfaction as to sub-paragraphs 34(1)(a), (b), (c) and (f) of the Act having regard to the evidence. Where all of the sub-paragraphs in section 34 are mandatory by the use of the word “must”, the other sub-paragraphs do not need to be considered further, having regard to the evidence, where there is not satisfaction as to section 34(1)(d). The Applicant’s proposed further support of MeRT therapy is therefore not reasonable and necessary having regard to the relevant criteria in section 34(1) of the Act.
[48]In ZNDV and National Disability Insurance Agency [2014] AATA 921 it was relevantly stated by Deputy President Bean and Member Thompson at [80]:
“Importantly, the criteria set out in sub s 34(1) are cumulative, so that if the equipment does not meet all of the criteria, it will not be a “reasonable and necessary” support for the purpose of s 34.”
[49] Hearing Bundle, R1, page 57.
The decision the subject of the review, as referred to above, being the plan having a start date of 24 August 2022 and a review date of 24 August 2023 will, for the reasons referred to above, be affirmed.
DECISION ON REVIEW
The decision under review is affirmed.[50]
[50] Section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
I certify that the preceding 22 (twenty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
................................[SGD]................................
Associate
Dated: 15 November 2023
Dates of Hearing: 7 and 22 August 2023
Representatives for the Applicant: Parents
Counsel for the Respondent: Mr J. Sproule
Solicitor for the Respondent: Hunt & Hunt Lawyers
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