Goder and National Disability Insurance Agency - [2024] AATA 3495

Goder and National Disability Insurance Agency [2024] AATA 3495 (1 October 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2023/1151
Re:ALEXANDER GODER
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President A Younes
Date:1 October 2024
Place:Sydney

The Tribunal affirms the decision under review.

......................[SGD]..................................................
Deputy President A Younes
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – review of supports in plan – reasonable and necessary supports – Autism Spectrum Disorder – Attention Deficit Hyperactivity Disorder – Developmental Delay – Functional Neurological Disorder – Chromosomal Microdeletion 15q11.2 – seizures – where the participant made multiple requests – core supports – consumables and low-cost assistive technology – assistive technology and home modifications –– capacity building supports – reimbursement requests – whether the plan should be self-managed – diagnoses which the applicant’s access to the NDIS was based on – decision under review affirmed
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participant) Rules 2013 (Cth)
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
SECONDARY MATERIALS
National Disability Insurance Agency, Self-management Policy, June 2022 (Web Page) FOR DECISION
Deputy President A Younes
1 October 2024
INTRODUCTION

The Applicant who was born in August 2000 has been a participant in the National Disability Insurance Scheme (‘NDIS’) for a number of years. On 23 February 2023, the Applicant lodged an application with the Administrative Appeals Tribunal (‘AAT’) seeking review of a decision made by a delegate of the CEO, on 7 February 2023 under s 100(2) of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’), which approved a statement of participant supports (‘SOPS’) forming part of the Applicant’s NDIS plan.[1]
[1] Ex 4, T2.
Principles and Objectives of the NDIS Act
The NDIS Act operates in pursuit of the objectives set out in s 3 of the NDIS Act.
Section 3 of the NDIS Act makes particular reference to the purpose of providing reasonable and necessary supports.
Subsection 3(1) provides, in part:
The objects of this Act are to:
…
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and
…
The objects of the NDIS Act are to be achieved by “adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability.”.[2]
[2] Subsection 3(2)(b) of the NDIS Act.
In giving effect to the objects of the Act, regard is to be had to, among other things, “the need to ensure the financial sustainability” of the Scheme and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.”.[3]
[3] Subsection 3(3) of the NDIS Act.
Section 4 of the NDIS Act refers to the General principles guiding action under the NDIS Act, and provides a set of principles. Relevantly, the following principles highlight matters concerning reasonable and necessary supports:
(1)People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development.
...
(3)People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4)People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5)People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
...
(8)People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
(9)People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
...
(11)Reasonable and necessary supports for people with disability should:
(a)    support people with disability to pursue their goals and maximise their independence; and
(b)    support people with disability to live independently and to be included in the community as fully participating citizens; and
(c)    develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12)The role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected.
...
(14)People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15)Innovation, quality, continuous improvement, contemporary best practice, and effectiveness in the provision of supports to people with disability are to be promoted.
…
Subsection 4(17) refers to the need to ensure the financial sustainability of the Scheme. It provides that is “the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial stability of the National Disability Insurance Scheme”.
Section 32 of the NDIS Act provides that the CEO of the Agency is required to facilitate the preparation of a participant's plan. Section 33 of the NDIS Act provides that the plan must include the participant's statement of goals and aspirations and a statement of participant supports prepared with the participant and approved by the CEO. It is noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the CEO. However, the statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.[4]
[4] Section 33(2)(b) of the NDIS Act.
A participant’s plan is prepared in accordance with the NDIS Act and regulations made under the NDIS Act, and must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Supports for Participants Rules’).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), have regard to a number of factors, including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are ‘reasonable and necessary’.
Section 34(1) of the NDIS Act requires six mandatory criteria to be met before a support is considered to be a ‘reasonable and necessary support’. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.
Section 34(1) of the NDIS Act provides as follows:
34 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 [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 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.
The phrase “reasonable and necessary supports” is not defined in the NDIS Act, but its meaning can be determined with the assistance of the provisions referred to above. As the Federal Court said in McGarrigle v National Disability Insurance Agency:
Section 13 expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” - whether by way of services or activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.
…
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”. [5]
[5] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [88] and [91].
Sections 35 and 209 of the NDIS Act provide for the making of Rules in connection with the funding or provision of reasonable and necessary, as well as general supports.
As a Legislative Instrument, the Rules bind the Tribunal in making decisions under the Act.
Part 5 of the Supports for Participants Rules sets out general criteria for supports and those that will not be funded or provided.
The Rules include:
General criteria for supports
5.1   A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2   The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
Supports that will not be funded or provided
5.3   The following supports will not be provided or funded under the NDIS:
(a)a support the provision of which would be contrary to:
(i)a law of the Commonwealth; or
(ii)a law of the State or Territory in which the support would be provided;
(b)a support that consists of income replacement.
The Schedule to the Supports for Participants Rules sets out the considerations relevant to determining whether supports are most appropriately funded through the Scheme:
7.1The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
The Tribunal notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43] as follows:
[The Supports for Participants Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement … some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS. [6]
[6] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43].
In National Disability Insurance Agency v WRMF,[7] the Court considered the meaning of reasonable and necessary support in the context of the Act, namely:
The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community …
… there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.
[7] National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at [141] and [151].
In Mulligan v National Disability Insurance Agency,[8] Mortimer J said:
The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities.
…
Although an impairment may, in general terms … be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.
[8] Mulligan v National Disability Insurance Agency (2015) 233 FCR 201 at [50] and [52].
Part 4 of the Supports for Participants Rules provides the following:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Material before the Tribunal

The parties lodged a set of joint and supplementary documents (‘the T-Documents’). The T-Documents contained, among other things, a copy of the delegate’s decision record, reports/statements from various health practitioners, generic articles, legislation, policy documents, videos and photographic material. The Respondent and the Applicant lodged submissions and Statements of Facts, Issues, and Contentions (‘SFIC’). Three tables were handed up during the hearing, summarizing the issues in dispute. The Applicant provided post-hearing material.
The documents before the Tribunal are Exhibits 1-19.
Mrs Goder, the Applicant’s mother, and five witnesses gave evidence during the hearing.
BACKGROUND
The Applicant lives with his parents, Mrs Yunni Goder and Mr Christopher Goder, as well as his two brothers. The Applicant suffers from multiple disorders including, Autism Spectrum Disorder (ASD) (Level 1), Attention Deficit Hyperactivity Disorder (ADHD), childhood history of Developmental Delay, Functional Neurological Disorder (FND),[9] and Chromosomal Microdeletion 15q11.2.
[9] Ex 16, 93.
The Applicant also suffers from associated disorders such as seizures.
Mrs and Mr Goder have an Enduring Power of Attorney and Enduring Power of Guardianship relating to the Applicant.
Clinical observations
The Applicant has been treated by a number of health care professionals, including Dr Ghassem Rostamian (General Practitioner – ‘GP’), Dr Madhura Bakshi (Geneticist), Dr Mathew Conroy (Clinical Neuropsychologist), Dr Jothi Ramalingam (Psychiatrist), Dr Anna Schutz (Neurologist), Dr John Dowsett (Gastroenterologist), Dr Paulette Van Vliet (Physiotherapist), Ms Gina Stear (Dietician), Ms Kara Tuene (Occupational Therapist – ‘OT’), Ms Gemma Haskell (Speech Pathologist), Ms Xin Gu (Acupuncturist), Ms Jolene Meany (Podiatrist), and Mr Adam Harris (Personal Trainer).
Dr Matthew Conroy
The Applicant is treated by Dr Matthew Conroy, Clinical Neuropsychologist who prepared a number of reports, including one dated 10 May 2022.[10]
[10] Ex 4, 97.
Dr Conroy noted that the Applicant had a range of triggers for his FND which included heat, noise, smell, new people and places, alcohol, fatigue and elevated stress.
Dr Conroy observed that he has continued to provide the Applicant with regular psychological support over the past 2 years with the primary goal is “to reduce the frequency, severity and impact of his functional neurological symptoms. When I commenced working with Alex he was suffering from non- epileptic seizures (NES) daily, with significant impacts on his functioning. His FND had caused him to stop attending TAFE and there was a reduction and disengagement from enjoyable and meaningful activities, in particular completing art…Through the use of a tracking app and seizure diary we were able to monitor and record factors related to his FND; this has allowed Alex and his family to develop a comprehensive plan to manage his FND (see appendix 1). At the time of writing this report there has been significant improvements in his functioning; reports indicate that he now suffers from NES about once per fortnight and the ongoing impact of these seizures has reduced. However, he continues to suffer regularly from FND symptoms including most notably dissociation and memory loss.[11]
[11] Ex 4, 97-98.
Dr Conroy gave evidence during the hearing, among other things, confirming the aim of reducing the risk of seizures.
Dr Paulette Van Vliet
Dr Paulette Van Vliet, who is the Applicant’s treating Physiotherapist, prepared reports, including one dated 14 June 2022[12] in which she observed:
Alex has been diagnosed with Functional Neurological Disorder (FND), Autism Spectrum Disorder, ADHD, and Global Developmental Delay. His FND causes non epileptic seizures that last 30mins+ leaving him weak throughout resulting in difficulties walking for about 1hr+. There are several triggers he can identify for his seizures such as overexertion, being too hot, and certain perfumes and chemicals. He has strategies to deal with these triggers, including using ice packs if too hot, and pacing his exercise. He also has regular bouts of memory loss such as forgetting what an egg is, that it can be cooked and how to cook it. Alexander lives at home with his family. He would like to improve his balance, fitness, muscle strength, functional use of his left hand, and to lose weight as he currently weighs 125 kg. He enjoys going to work out at the gym twice a week with the personal trainer which is helping with his muscle strength, but is not losing much weight at present.
At present Alexander relies on his family for assistance performing everyday living tasks and for accessing the community. Physiotherapy will reduce this burden on his carers, maintain his current level of functional ability, and help him to reach his functional goals.[13]
[12] EX 4, 104.
[13] Ex 4, 104-105.
Dr Van Vliet noted that the Applicant was experiencing seizures “at least once per month”, and that physiotherapy was aimed at reducing them to once every two months.[14] She made various recommendations in support of further funding by the Respondent.
[14] Ex 4, 105-106.
Dr Van Vliet gave evidence in the course of the hearing. Among other things, she expressed the view that the seizures are debilitating in nature and tended to exacerbate the Applicant’s FND. She however noted that since working with the Applicant, the FND symptoms are decreasing and that “he is a lot more confident with his movements, and is able to try hard at things and do better.”[15]
[15] Transcript, 9/7/2024, 3, [10-15].
The Tribunal observes that when asked by Counsel for the Respondent about improvements, Dr Van Vliet stated:
…what we have seen is his ability to do that sort of thing is far higher in capacity than it was before. So we can expect him to be doing several things at once and not get his FND symptoms quite often now, whereas to begin with we would have to make it quite simple. It’s hard to say if that’s directly applied to something. But what we have realised with[the Applicant] is that he seems to be doing a lot more in his life that he reports back to us that he wasn’t doing before. So he goes out and about to various places. He has a strong interest in cooking. He has a strong interest in, sort of, army things. And he sounds much more capable, you know, compared to before. So it’s hard to know what has caused that, but he’s definitely a more confident and outgoing young man than when I first met him.”[16]
[16] Transcript, 9/7/2024, 8, [30-40].
In relation to the amount of treatment/therapy that Dr Van Vliet had recommended, she accepted the possibility that there could be an increase in dependency rather than independence.[17]
[17] Transcript, 9/7/2024, 21, [25].
Ms Kara Tuene
Ms Kara Tuene, OT prepared a report dated 6 July 2023.[18] She commented that the Applicant has FND which is a “disorder that impacts the function of the brain and entire nervous system…can result in a wide range of symptoms that mimic other neurological disorders such as paralysis, seizures and reduced cognition. For symptoms like weakness and movement disorder, there is a problem with the way the brain is sending messages to the body. For symptoms like numbness and pain there is a problem with the way the brain is receiving messages from the body. During functional seizures or dissociative symptoms, the brain is in a trance like state. An additional symptom of FND is difficulty with regulating body temperature. FND is caused by a complex combination of biological, psychological and social factors on the brain. There are usually several underlying biopsychosocial factors which play a role in the development of FND which make the brain vulnerable and trigger FND episodes. Injury, pain, anxiety, depression and traumatic life experiences can contribute to making brains more vulnerable to FND. Alexander has received a recent diagnosis of a genetic disorder microdeletion 15q11.2. This deletion is a rare copy number variant impacting four genes (NIPA1, NIPA2, CYFIP1 and TUBGCP5), and carries increased risks for developmental delay, intellectual disability, and neuropsychiatric disorders (attention-deficit/hyperactivity disorder, autism, and psychosis. Alexander has also been diagnosed with severe fatty liver disease.”[19]
[18] Ex 4, 1191.
[19] Ex 4, 1191-1192.
Ms Teune made various observations about the Applicant’s home environment and physical limitations, including the existence of a toilet and basin on the ground floor that has a “narrow doorway and insufficient space to assist Alexander to access this toilet when he has a seizure. It has been assessed to see if there is a way to make the room and access bigger, but there is not.”[20] She observed that the other bathroom in the home is located on the second floor.
[20] Ex 4, 1194.
Ms Teune made the following recommendations:
·28 days of Short Term Accommodation (STA) per year to be included in the next NDIS plan , inclusion of funding for 4 Saturday and 4 Sunday stays, and 1:1 support.
·A lightweight power wheelchair that can be used by an attendant to get the Applicant back to the car and home if he has a seizure in the community.
·Installation of a tyrex ramp at the front access.
·Installation of a through floor lift to enable the Applicant to be transported from the car to his bedroom without the need for additional transfers.
·Creation of a wheelchair accessible bathroom, which will require OT assessment and report writing with recommendations for same.
·Provision of assistive technology to support toileting and bathing such as a mobile commode.
·12 hours of Occupational Therapy sessions over 12 months to develop and implement strategies to support skill development in daily living activities.
·The Applicant requires support workers to provide guidance when engaging in daily activities at home and as such it is recommended that he receives 21 hours per week.
·1:1 support when engaging in 3D art due to poor memory, reduced motivation, difficulty with maintaining attention and difficulty learning new things.
·3 hours of weekly cleaning to free up some of the Applicant’s mother’s time so that she can continue to provide informal support for the Applicant.
·2 hours of fortnightly garden maintenance.
·Regular pool maintenance to ensure it is safe for the Applicant to access the pool.
·12 hours of podiatry per year to maintain toenails and recommend suitable orthotics and footwear.
·Fortnightly neuropsychology appointments.
·Physiotherapy assessment and intervention to develop strength to counteract low muscle tone.
·Regular exercise physiology.
·Monthly dietician support to keep him on track in relation to weight loss.
·Speech pathology assessment and intervention.
·The Applicant uses the air conditioner as the primary method of regulating his body temperature as such funding to support the cost of the additional electricity is required.[21]
[21] Ex 4, 1199-1202.
Ms Teune observed that the Applicant had been “seen intermittently” since December 2020.[22] She does not list occupational therapy as a service the Applicant has been regularly receiving.
[22] Ex 4, 1192.
Ms Tuene gave evidence during the hearing. In summary, Ms Teune gave evidence that the Applicant is sensitive to stimuli, including, sound, smell, and touch. She noted that the Applicant struggles with mobility due to weight. She expressed concerns that the Applicant could have a seizure which could impact his functional ability such as being able to go upstairs to use the bathroom. She noted the existence of a toilet on the ground level but expressed concerns about accessibility. She accepted that the Applicant is experiencing fewer seizures.
Professor Ingrid Scheffer
Professor Ingrid Scheffer, Paediatric Neurologist and Epileptologist provided a report dated 30 January 2024.[23] She confirmed the diagnoses of Autism, Global Developmental Delay, ADHD, microdeletion 15q11.2, and FNS. She noted that the Applicant has a complex set of disorders which are genetic in nature, needing long-term support. Professor Scheffer noted that although the Applicant had severe functional neurological seizures, these were “currently very well managed with the input of his neuropsychologist and psychiatrist”.[24]
[23] Ex 4, 1534-1537.
[24] Ex 4, 1536.
Mr Nicholas Kershaw
Mr Nicholas Kershaw, Senior Consultant Neurological Physiotherapist prepared a report dated 16 March 2024.[25]
[25] Ex 4, 1604-1617.
Mr Kershaw expressed the opinion that FND is a major contributor to the Applicant’s decline in functional capacity, which is also impacted by a variety of psychiatric diagnoses and sensory issues that are likely to improve with appropriate treatment and therapy. Mr Kershaw indicated that the Applicant has “potential to improve with appropriate funding management and interventions and recommend reassessment in 12 months to get a clearer picture of his long-term capacity and which of his disabilities would be considered his primary disability...”[26] Mr Kershaw noted that the impairments associated with the diagnosis of FND contribute to the decline in functional capacity which includes non-epileptic seizures, muscle weakness, impaired motor control, and dissociation related memory loss. Mr Kershaw commented that the Applicant’s ability to mobilise, transfer, and attend to self-care can significantly deteriorate, which impacts functional capacity.
[26] Ex 4, 1610.
In relation to the diagnosis of genetic disorder microdeletion 15q11.2, Mr Kershaw noted the suggestion that the seizures are a symptom of this condition, but indicated that electroencephalography (EEG) studies have shown that the Applicant’s seizures are non-epileptic in nature whereby the Applicant demonstrates normal electrical activity in his brain.
Mr Kershaw noted that the available information regarding microdeletion 15q11.2, refers to the seizures sometimes seen in this disorder which are epileptic in nature, inconsistent with the Applicant’s presentation. He stated that the evidence suggests that the non-epileptic seizures are a result of FND diagnosis, and not microdeletion 15q11.2.
Mr Kershaw was asked “Based on the evidence provided and your clinical experience, do you agree with the methodology and assessments completed that have been used to determine the level of physiotherapy, exercise physiology, allied health assistant, hydrotherapy and acupuncture supports required for Alex? Please include your clinical reasoning and refer to best practice and relevant research in your response?”[27]
[27] Ex 4, 1611.
In response to the above, Mr Kershaw noted that the best practice in physiotherapy involves using clinical outcome measures to monitor and track a patients progress over time to determine the effectiveness of interventions. He noted that due to the lack of valid outcome measures presented in the physiotherapy reports provided to him, he could not comment on the assessments completed used to determine the level of therapies required for the Applicant. [28]
[28] Ex 4, 1611.
In relation to the determination of additional exercise physiology in which the Applicant should participate, Mr Kershaw observed that Exercise Sports Science Australia (ESSA) recommends a minimum of 60 minutes of moderate intensity exercise daily, with the guidelines quoting 300 to 420 minutes per week, to achieve weight loss.
Mr Kershaw did not believe that the recommendation of the Applicant completing this much exercise per week is fully considering the Applicant’s functional capacity and disability. He stated:
…If the intention of the suggested combined physiotherapy, hydrotherapy and exercise physiology sessions were to meet this threshold, this would imply that the sole goal of his therapy is weight loss as opposed to management of his disability-related impairments. I believe this would be a misuse of his NDIS funds. Additionally, the ESSA guidelines are written for the prevention and management of obesity and associated comorbidities in an able-bodied adult population…
Whilst ideally, one would like Alex to be able to exercise up to 300 minutes per week at a moderate intensity, there has been no evidence provided to suggest he has the capacity to do so and still have the ability to actively engage in his ADLs, appointments, and other activities that are meaningful to him. The World Health Organisation Physical Activity Guidelines for Adults Living with Disability state that people should be aiming for 150 to 300 minutes of moderate intensity physical activity per week. This is with consideration to what they are capable to achieving with their disability, acknowledging that any physical activity is better than no physical activity. They also recommend that physical activity is combined with a healthy and balanced diet. I recommend that Alex continues to engage in dietetics to continue to receive support in this area of his life.”[29]
[29] Ex 4, 1611-1612.
Mr Kershaw noted that although it is reasonable to suggest that the Applicant should be aiming to participate in as much physical activity as he is capable, the Applicant’s Physiotherapist can prescribe an appropriately graded exercise program that aims to achieve more moderate intensity exercise that can be supervised by a support worker either at home or in the community. This can also help the Applicant to progress towards his short-term NDIS goal of attending some group activities and getting out to exercise whilst meeting new people.
Relevantly, Mr Kersahaw noted that the Applicant’s physiotherapy reports do not highlight any SMART (Specific, Measurable, Achievable, Relevant, Time-based) goals.[30]
[30] Ex 4, 1611.
In oral evidence, Mr Kershaw explained the importance of the SMART goals. He stated that the SMART goals are a clinical standard practice for all physiotherapists, particularly neurological physiotherapists, as they provide a structure and framework formed in collaboration with the family, full treating team, and can also be physiotherapist-led. He also stated that the goals are adjusted. He stated “…in the context of an NDIS participant, the structure of a 12-month plan typically provides a nice framework for how frequently we would be reviewing those SMART goals. I would review them every 12 months. But it depends on the person and how sensitive to change they are. If they have achieved a – if I note that they have achieved their goals quite quickly, faster than what the timeframe is that I would set on them, I would be reviewing more frequently. So and certain SMART goals would be short-term goals, medium-term goals and long-term goals. Where short-term goals, I would be aiming to achieve in a period of six to eight weeks. Medium-term, you know, anywhere between three and six months. And long-term, greater than 12 months, or 12 months or greater.”[31]
[31] Transcript, 9/7/24, 75, [5-45].
Ms Alicja Ploszaj
Ms Alicja Ploszaj, OT provided an Occupational Therapy Functional Capacity Report, dated 18 March 2024.[32]
[32] Ex 4, 1620.
Ms Ploszaj observed that:
It was difficult to identify a functional baseline as Mr Goder’s parents stated that they continue to have concerns about triggering a seizure and thus do not implement a structured routine for daily functional tasks and activities. They prefer to manage Mr Goder in a conservative manner and assess his mood before requesting that he completes daily tasks to minimise risk of seizure. If his mood is not positive that day, then requests are reportedly not made for him to complete daily tasks.
Mr Goder’s parents stated that he has had limited and infrequent OT intervention in terms of assessing his functional skills and setting up a routine for him to learn and execute domestic tasks such as completion of laundry tasks.
It was reported that this was not implemented into daily structure due to fear of triggering a seizure. Mr Goder was also not encouraged to complete full domestic tasks such as laundry tasks, but rather bring his dirty laundry from his room to the laundry room. Ms Goder stated that her personal requests for completion of any chores acts as a seizure trigger and thus wishes to utilise a support worker to ask for the task to be completed instead of her. Mr Goder’s mother stated that his most acute post seizure episode to date consisted of a two (2) week period during which he was bed bound due to unilateral lower limb weakness and loss of function. She stated that during this period he was being assisted to mobilise to the toilet and remained in his bed for the majority of the duration of this time. Mr Goder’s post seizure symptoms are reported to last for an unpredictable period and sometimes can remain until his next seizure activity, after which they resolve spontaneously.
Mr Goder’s day to day activities were difficult to identify as they were structured around his mood, and his appointments would not go ahead if Mr Goder was not in a “good mood” as they feared triggering a seizure.
Mr Goder spends his days playing computer games, performing art tasks, eating his favourite foods and attending appointments if his mood allows. He also spends time with his family if he is in a positive mood.[33]
[33] Ex 4, 1628-1629.

Ms Ploszai concluded that at the time of her report, the Applicant had demonstrated inconsistent, unstable and unclear functional impairments and capacity.[34] She noted that there were physical limitations and those pertaining to the Applicant’s cognitive and mental health symptoms. She indicated that the Applicant was unable to be assessed or recorded performing functional tasks due to fear of triggering a seizure. She noted that the Applicant is reported to be independent with most personal tasks, but is limited with domestic and community functional tasks due to trigger fears, physical limitations as well as exacerbation of deconditioning, instability and energy management.
[34] Ex 4, 1641.
Ms Ploszai commented that in relation to the Applicant’s cognitive abilities, it was not possible to assess him to identify how his present abilities translate to functional capacity. She however indicated that Mrs Goder had noted that his cognition and physical capacity fluctuates significantly due to seizure activity related to FND.
Among other matters, Ms Ploszaj indicated that:
·The Applicant should be assessed by an appropriately trained OT for functional impairment changes following a seizure to identify what symptoms seizures cause related to his functional skills.
·He should undergo a series of standardised cognitive testing over the period of a year to identify any fluctuations that occur as a result of the seizures to gain an understanding if or how the seizures impact his functional capacity.
·The seizures can reportedly be triggered by a number of inputs including auditory, sensory, and emotional. The triggers can be mitigated by a variety of interventions.
·The Applicant has not undergone a Sensory Profile formal assessment of sensory processing abilities, nor participated in an evidence based sensory desensitisation program with an appropriately trained therapist.
·In relation to the Fatty Liver and Scarring, it is recommended that the Applicant undergo formal sensory assessment and desensitisation by an OT to identify more appropriate and healthy approaches.
·Although information relating to his conditions can be sourced through reports, his functional capacity is not possible to be accurately or objectively assessed without a formal visual assessment of his function within his environment which was not permitted on this occasion.
Ms Ploszai recommended the following:
·Appropriate use of OT funding in order to allow for a number of regular objective assessments performed by a suitably qualified Occupational Therapist using standardised assessments and outcome measures over a period of time such as 12 months;
·Formal sensory assessment and identification of sensory strengths and weaknesses completed by a suitably qualified OT;
·Formal desensitisation program delivered in the community by a suitably qualified OT (as sensory input has been described as a main trigger for seizures);
·Formal prescription of a sensory diet to manage sensory stability by a suitably qualified OT;
·Formal assessment and prescription of sensory equipment (as required) by a suitably qualified OT;
·Appropriate and regular OT interventions delivered in the community to address routine, daily lifestyle stability and energy conservation issues; and
·Formal MDT delivery of therapy and medical interventions including OT.[35]
[35] Ex 4, 1640-1641.
Ms Ploszai noted that once the above have been completed and formally measured over a 12-month period, it will be clearer to understand the Applicant’s baseline function and potential to improve. She concluded that although the FND appears to be a major contributor to his functional impairments, the psychiatric conditions such as ADHD, Schizophrenia, Psychosis also can present with a variety of symptoms which resemble one another.
Ms Ploszai indicated that some of the conditions have opportunities for medical interventions, and that they also have opportunities for therapeutic interventions to stabilise and improve his functional capacity, but that the “presentation of his functional capacity is not stable at present. He continues to have potential to improve with appropriate interventions delivered in appropriate methods. It is therefore recommended that Mr Goder undergo the above recommendations and for reassessment to occur after a 12-month period... This will identify a clearer picture of his function and long-term support requirements and clarity regarding how each condition is being managed to produce a safe, stable and consistent lifestyle. This will also identify how much funding is required for each modality.”[36]
[36] Ex 4, 1641.
In oral evidence, Ms Ploszaj noted that although assessments and trials of intervention have been undertaken in relation to the Applicant, it appeared that the interventions that were not successful were abandoned rather than changed and continued in a different manner.[37]
[37] Transcript, 9/7/24, 56, [10].
The Tribunal acknowledges the views expressed by all the professionals who prepared the relevant reports. The Tribunal is satisfied that although there are some differences, the cumulative clinical evidence cited above indicates the following:
·There is significant improvement in the Applicant’s functioning. The FND symptoms are improving; they have decreased.
·The Applicant is more confident with his movements. He is able to try harder and better at doing tasks. He is doing more. He has strong interest in doing various things.
·The Applicant’s seizures are currently well-managed, and there is potential to improve.
·There are no outcome measures and no SMART goals to provide structure and framework, consistent with clinical standard practice.
·There have been no formal assessments of the Applicant’s sensory processing abilities, or participation in sensory desensitisation program.
·The Applicant’s functional impairments are unclear.
·There is need for further assessments.
·There are opportunities for medical and therapeutic interventions.
The above clinical observations, law and policy form the framework within which the Tribunal will determine the issues in dispute.
ISSUES
There are approximately 53 issues in dispute.
In order to assist the Tribunal, the Respondent provided a table, setting out the issues in dispute.[38] In the course of the hearing, there were extensive discussions about the issues, some of which were resolved by agreement as set out in a further table provided.[39]
[38] Ex 17.
[39] Ex 19.
The Tribunal is satisfied that the resolved issues are the correct and preferable decisions, and as such, the Tribunal will determine the unresolved issues.
FINDINGS and REASONS
The Tribunal will use the same numbering system as that of the Tables.[40]
CORE SUPPORTS
[40] Ex 17-19.
ISSUE 1
The Applicant sought 1:1 support worker assistance for 50 weeks per year at the high intensity rate as follows:
·70 hours per week (14 hours per weekday) (daytime) for assistance with self-care activities,
·20 hours per week (4 hours per weekday) (evening) for assistance with self-care activities,
·30 hours per week (6 hours per weekday) (night-time) for assistance with self-care activities,
·24 hours per Saturday of assistance with self-care activities,
·24 hours per Sunday or assistance with self-care activities, and
·24 hours per public holiday (14 days) of assistance with self-care activities.
The Respondent has approved 28 hours per week for 48 weeks per year (4 hours per day, 7 days per week) of 1:1 support with self-care activities.
During the hearing, the Applicant accepted the 28 hours per week, and did not press the request for high intensity.
The Tribunal is satisfied that the parties have resolved this issue in full, and that the approved support of 28 hours per week for 48 weeks per year (4 hours per day, 7 days per week) of 1:1 support with self-care activities, is reasonable and necessary.
ISSUE 2
The Applicant sought and the Respondent has approved 28 days, per year of short-term accommodation at a support ratio of 1:1 as follows:
·20 weekdays,
·4 Saturdays, and
·4 Sundays.
This issue has been resolved in full, and the Tribunal is satisfied that the approved support is reasonable and necessary.
ISSUE 3
The Applicant is requesting 26 hours per week for 52 weeks per year of assistance with community access, at high intensity rate. That is 5.2 hours per weekday (daytime) of assistance with community access. The Respondent’s position is 6 hours per week (weekday daytime) for 48 weeks per year of 1:1 support for community access.
During the hearing, Mrs Goder gave evidence that the 5.2 hours per weekday of 1:1 at high intensity is required to allow the Applicant to be transported by the support worker to appointments with various practitioners.
In response, the Respondent confirmed its position that 6 hours per week for 48 weeks per year of 1:1 support for community access. The Respondent contended that there is no clinical evidence to support this request.
In her report dated 26 May 2023, Ms Teune noted that the Applicant is “very trusting of people. He requires support from his mother or Support Workers to make decisions regarding his safety when accessing the community. He needs to be shown people in the community who he can trust, or those who could take advantage of him…[41] …Alexander requires support workers to provide guidance when engaging in daily activities at home and in the community to provide supervision for his safety and regular prompts when Alexander forgets and guidance as he is learning new tasks and skills.”[42]
[41] Ex 5, 2003.
[42] Ex 5, 2005.
Ms Ploszaj, in her report dated 18 March 2024, noted that the Applicant would benefit from formal assessment of abilities to access the community, and that depending on his mood and motivation levels, the Applicant has inconsistent access to the community.[43]
[43] Ex 4, 1639.
On balance, the Tribunal is satisfied that there is limited evidence to support the Applicant’s request of 26 hours per week for 52 weeks per year of assistance with community access, at high intensity rate, and that further assessments are required. In essence, the Tribunal is satisfied that the cumulative evidence does not support the Applicant’s request, which does not meet the requirements of s 34(1), in particular s 34(1)(c); namely that the requested support does not represent value for money. The Tribunal is not satisfied on the evidence that the requested support would substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant.
ISSUE 4
The Applicant is requesting 1:1 of 7 hours per Saturday for 52 weeks per year of assistance with community access.
The Respondent maintained its position that the Applicant’s current plan provides for 4 hours per Saturday for 48 weeks per year of 1:4 support for community access. The Respondent contended, and the Tribunal accepts that although there is reference to this support in Ms Teune’s report of 26 May 2023,[44] and Ms Ploszaj in her report of 18 March 2024,[45] there is no clinical evidence to support this level of request.
[44] Ex 5, 2002
[45] Ex 4, 1639.
The Tribunal is satisfied that the cumulative evidence does not support the Applicant’s request, which does not meet the requirements of s 34(1), in particular s 34(1)(c). In essence, the Tribunal is not satisfied that, among other requirements, the requested support represents value for money. The Tribunal is not satisfied on the evidence that the requested support would substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant.
ISSUE 5
The Applicant has sought 5 hours per week for 52 weeks per year of assistance with cleaning.
The Respondent has approved 3 hours per week of 1:1 assistance with personal domestic activities, and 4 hours per month (48 hours per year) of support for house cleaning and other household activities.
The parties have reached agreement in relation to this issue. On the evidence, the Tribunal is satisfied that the approved support is reasonable and necessary.
ISSUE 6
The Applicant has sought 2 hours per week for 52 weeks per year for assistance with house and yard maintenance, including pool maintenance. The parties have agreed on 2 hours per month (24 hours per year) of support for house and/or yard maintenance.
This issue has been resolved in full. On the evidence, the Tribunal is satisfied that the approved support is reasonable and necessary.
ISSUE 7
The Applicant is requesting $21,184.00 per year of transport funding. The Respondent agrees to $1,784 per year for transport support.
The Applicant has relied on a quotation from Platform To dated 14 March 2024.[46]
[46] Ex 4, 1554.
The Respondent noted the observations of Ms Ploszaj [47]who commented that it was unclear whether the travel component is for the delivery of the current therapies that are in situ. She however recommended a change in approach of some of the therapy structures and to have more specific community-based therapies delivered via an OT.
[47] Ex 4, 1620.
In the Applicant’s Amended SFIC, among other matters, the Applicant contended that due to his disability, he is not allowed to drive and as such he requires to travel with his support workers on public transport.[48]
[48] Ex 3, 179.
The Tribunal is persuaded by the Respondent’s position that this is a day-to-day living cost, pursuant to r 5.1(d) of the Supports for Participants Rules.
On the evidence, the Tribunal is not satisfied that this requested support represents value for money, as contemplated by s 34(1)(c) of the Act. The Tribunal is not satisfied on the evidence that the requested support would substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant.
CORE SUPPORTS – Consumables and low-cost Assistive Technology
ISSUES 8-15
The Applicant is requesting $1,200 per year for electricity. The Respondent has agreed to fund $500 per year for low-cost assistive technology. The Applicant has requested funding of $685 for noise cancelling headphones, $1,099 for an Apple iPhone, $859 for an Apple Watch, $500 per year for masks and filters, $1,000 for orthotics, $527.88 per year for an Adobe subscription, $3,159.02 per year for Vitamin D3 tablets, Magnesium Threonate tablets and Souvenaid. The Respondent does not approve those requested funds.
In relation to electricity, the Applicant has contended that this request is needed because, among other things, the Applicant is overheating which requires the use of air-conditioning, as well as the pool which has been neglected.
There is some support for the Applicant’s requests. The Tribunal notes that the Applicant’s GP, Dr Rostamian observed that the Applicant has been suffering from FND and nonepileptic seizures, and that one of the triggers for seizure is hot weather. In a report dated 17 February 2022,[49] Dr Ramalingam observed that the “main issue is a recurrent seizure-like behaviour, which can be triggered by a number of environmental and other factors…I understand that these seizure-like behaviours are also triggered by heat”.
[49] Ex 4, 12.
In her letter dated 23 March 2022,[50] Dr Schutz indicated that the seizures are precipitated by heat. In her report dated 4 May 2022,[51] Ms Tuene supported the installation of an air conditioning unit in the Applicant’s bedroom.[52] Ms Teune noted that the Applicant requires air conditioning as a primary method for regulating his body temperature.[53]
[50] Ex 4, 14.
[51] Ex 4, 15.
[52] Ex 4, 15.
[53] Ex 4, 1201.
In his report dated 10 May 2022,[54] Dr Conroy noted that heat was an ongoing trigger for seizures, which had resulted in a general reduction in activity levels and exercise over summer because of overheating and FND seizures, which were exacerbated by the wearing of a mask to avoid smell being a trigger. Dr Conroy supported the installation of an air conditioner.
[54] Ex 4, 97.
Ms Ploszaj observed[55] that electricity is a basic daily consumable that is generally required to power an average Australian lifestyle, and that an air conditioner is a household appliance that is commonly found in the majority of homes in NSW and is used regularly by families, especially those with young children during the summer months. Ms Ploszaj noted that a washing machine, dryer and hot water are basic requirements.
[55] Ex 4, 1645.
Mrs Goder gave evidence that the Applicant uses many towels during the day and therefore increases the number of loads of laundry. Ms Ploszaj recommended occupational therapy interventions to encourage the Applicant to manage his laundry. Ms Ploszaj noted the concerns about obesity with a high BMI which reportedly results in difficulties with managing heat. She observed that weight loss would result in more efficient thermoregulation resulting in a different experience in temperature. She recommended that the Applicant be reassessed after a period of 12 months or when he reaches his weight loss goals to identify how he experiences temperature.
Furthermore, Ms Ploszaj did not consider that an air purifier is supported for sensory desensitisation as it could result in the heightening of smells and interfere with developing tolerance for smell resilience. Ms Ploszaj indicated that until the Applicant has been formally assessed by an appropriately qualified professional in sensory interventions, it is not appropriate to support the requirement for any sensory specific equipment as it may cause harm rather than assist with the Applicant’s conditions.
The Tribunal is persuaded by Ms Ploszaj’s recommendations which appear to be sensible, and encouraging the development of independence and self-regulation. The balance of the clinical evidence before the Tribunal indicates that the Applicant’s condition does not appear to be stable, and obesity may be a significant factor in dealing with temperature regulation.
As noted by the Respondent, the Applicant is one of the five people living in a large, double storey home from which a business also operates, and a ducted air conditioning system has been installed which apparently services a significant portion of the house. The Respondent contended, and the Tribunal accepts that the Applicant has applied an arbitrary figure which is inherently problematic.
The Tribunal finds that electricity is a typical day-to-day resource used in Australian homes. The Tribunal is satisfied that it is a day-to-day living cost pursuant to r 5.1(d), and that the requested support is not effective and beneficial, pursuant to s 34(1)(d) of the Act. The Tribunal further accepts the Respondent’s submissions that this request does not satisfy s 24(1)(f) of the Act as the Applicant’s household is in receipt of the NSW Government Household Rebate and NSW Medical Energy rebate.
Regarding the requests for funding of $685 for noise cancelling headphones, $1,099 for an Apple iPhone, $859 for an Apple Watch, $500 per year for masks and filters, $1,000 for orthotics, $527.88 per year for an Adobe subscription, the Tribunal observes that Ms Ploszaj does not support noise cancelling headphones or an Apple Watch. In relation to the headphones, she noted that it can create the risk of dependency and not allow for the development of normalisation and resilience to environmental influences. In relation to both products, Ms Ploszaj noted that it is unclear how they align with the improvement of functional capacity as compared to another item. Moreover, in her letter dated 22 July 2023,[56] Dr Van Vliet mentioned that the Applicant was no longer wearing headphones.
[56] Ex 4, 1205-1208.
Ms Ploszaj noted that Adobe is a mainstream product which is not disability specific, and it is uncertain how it is specific to the improvement of the Applicant’s functional capacity or SMART goals.

The Tribunal is satisfied on the evidence that the noise-cancelling headphones, Apple iPhone, Apple watch, and the Adobe subscription are items which are not the responsibility of the NDIS, pursuant to s 34(1)(f). The Tribunal is satisfied that the requested supports are not appropriately funded through the Scheme.
In relation to the request for Vitamin D3, Magnesium Theonate and Souvenaid, the Tribunal notes that Dr Schutz observed that Souvenaid has some effect in Alzheimer’s, although there is “no data on FND but equally it will do no harm. Happy for Alex to try it”.[57]
[57] Ex 4, 1584-1585.
The Tribunal does not consider the above comments to be persuasive clinical evidence to support the request but in any case, the Tribunal is satisfied that pharmaceuticals and supplements are not the responsibility of the NDIS, pursuant to s 34(1)(f), and the requested support is not effective and beneficial pursuant to s 34(1)(d) of the Act. Moreover, the Tribunal is persuaded by the Respondent’s submissions that the request is a day-to-day living cost, pursuant to r 5.1(d).
In relation to the request for masks/filters, and orthotics, the Respondent has agreed to fund $500 a year for low-cost assistive technology which means that in a three-year plan, the Applicant will have $1,500 for three years for low-cost assistive technology. The Tribunal observes that there is some support for the request for the orthotics from Ms Meany, Podiatrist who noted that in the Applicant’s case and due to his BMI, the orthotics may need to be changed every 3 years.[58]The Tribunal however notes that although the Applicant used to wear masks, that is no longer needed.[59]
[58] Ex 4, 296, 1144, 1203, 1144.
[59] Ex 4, 1179.
On the evidence the Tribunal is satisfied that the $1500 is reasonable and necessary, and any further requested supports do not meet the requirements of s 34(1) of the Act.
Capacity Building supports
ISSUE 16
The parties have reached agreement for the provision of 10 hours per year of training for carers/parents.
The Tribunal is satisfied that this support is reasonable and necessary.
ISSUE 17
The Applicant initially requested 154 hours per year of occupational therapy, as follows:
·one hour per day, five days per week for four weeks for a sensory occupational therapy assessment (20 hours),
·four quarterly reviews, 20 hours each for a sensory occupational therapy assessment (80 hours),
·26 fortnightly sessions and 13 hours for provider travel (39 hours), and
·15 hours for report writing.
The Applicant changed his position to a request of 64 hours. The Respondent’s position of 33 hours per year of occupational therapy changed during the hearing, to an offer of 60 hours. The parties agreed, and the Tribunal is satisfied that 60 hours over 12 months of occupation therapy is reasonable and necessary.
This issue has been resolved in full.
ISSUE 18
The Applicant requested and the Respondent has agreed that 29 hours per year of neuropsychology.
This issue has been resolved in full. The Tribunal is satisfied that the agreed support is reasonable and necessary.
ISSUE 19
The Applicant requested and the Respondent has agreed to 10 hours per year for podiatry.
This issue has been resolved in full. The Tribunal is satisfied that the agreed support is reasonable and necessary.
ISSUE 20
The Applicant requested and the Respondent has agreed to 18 hours per year for speech therapy.
This issue has been resolved in full. The Tribunal is satisfied that the agreed support is reasonable and necessary.
ISSUES 21 and 22
The Applicant had requested 106 hours per year for physiotherapy but changed his position to 48 hours per year for physiotherapy, 48 hours per year of Level 2 therapy assistant, and 78 hours per year for hydrotherapy provided by a physiotherapist.
The Respondent has approved 60 hours per year at the therapist rate of 48 hours per year of physiotherapy, 6 hours per year of hydrotherapy training, and 6 hours per year of support worker training. Also approved are 48 hours per year of Level 2 therapy assistant support and 3 hours per week of 1:1 support worker assistance to support therapy sessions (to be funded in Core supports).
The Applicant had also requested 104 hours per year for exercise physiology but changed his position to 48 hours per year for physiology. The Respondent has approved 10 hours per year of exercise physiology.
The Tribunal notes that in her report dated 28 September 2022[60], Dr Van Vliet recommended 1 hour of physiotherapy each week for a year, and 1 hour for physiotherapy report writing. Dr Van Vliet also recommended 2 hours per week for exercise physiology, and 1 hour per week provision for a therapy assistant.
[60] Ex 4, 110-114.
In a letter dated 22 July 2023,[61] Dr Van Vliet explained the additional supports requested. She observed that with a second session of physiotherapy since 2022, the Applicant had seen a reduction in his FND symptoms, with him no longer wearing headphones or cold towels over his head and shoulders (to prevent triggers), more tolerance for odours as well as an improvement in exercise tolerance, dexterity and weight loss.
[61] Ex 4, 1205-1208.
In letters dated 18 January 2024[62] and 26 March 2024[63], Dr Van Vliet supported the extra day of physiotherapy based on the Applicant’s dietician’s recommendation that the Applicant has 5 days of exercise per week in order to improve his insulin resistance and help to increase his muscle strength. It was also noted that the Applicant had expressed a wish to do hydrotherapy for this extra session per week, which Dr Van Vliet supported. Dr Van Vliet considered that this would complement goals of physiotherapy. She expressed the view that it is essential for the Applicant to be supervised during his home exercise sessions due to cognitive barriers such as ADHD, which she considered to act as a major limitation to a home-based treatment framework. She further noted the Applicant’s recent possible soft tissue injuries as a result of exercising with instructors at the gym and as such the preference for training to be performed by those experienced in managing FND and the associated altered pain feedback associated. She recommended that the exercise sessions are conducted by a physiotherapist or physiologist at her company, Central Coast Neuro Rehab.
[62] Ex 4, 1470-1471.
[63] Ex 4, 1586-1588.
During the hearing, Dr Van Vliet was asked to explain why the doubled physiotherapy. She stated “…Because that’s in line with the five days a week exercise. So the personal trainer is no longer part of the program, I believe, from the family’s point of view. I don’t think they’ve organised that and they’re wanting us to do it. So to achieve the five hours a week, it’s, yes, two with the physio, two with the exercise physiologist, and one hydro, is being requested.”[64]
[64] Transcript, 9/7/2024, 25-26, [5].
Counsel for the Respondent asked “…But, again, is what you’re recommending really a gold standard? If there were cost limitations, for example, you wouldn’t necessary be recommending all these services at the same time, would you? It is a lot and I can’t say it’s necessary, as we’ve discussed before, but we’re responding to all the various information that we’ve received from, you know, what family would like, what Alex would like, what the dietitian has recommended. So, you know, if that’s what people want and it’s doing good, we’re happy to provide it. It is quite a lot compared to what people on average would receive, yes…”[65]
[65] Transcript, 9/7/2024, 26, [10].
The Tribunal does not consider Dr Van Vliet’s recommendations to be persuasive, or supported by other practitioners such as Mr Kershaw. As shown above, she accepted that “…It is a lot and I can’t say it’s necessary…” Those comments raise concerns about the basis of Dr Van Vliet’s recommendations.
The Respondent relied on Mr Kershaw[66] who expressed the view that the combination of physiotherapy, hydrotherapy and exercise physiology sessions proposed by the Applicant suggests that the sole goal of the therapy is weight loss as opposed to management of the disability-related impairments, which Mr Kershaw considered to be a misuse of NDIS funding.
[66] Ex 4, 1604-1617.
In relation to the level and type of therapy recommended, Mr Kershaw stated:
I believe that Alex could achieve the short, medium and long-term goals outlined in his NDIS plan “T20 - NDIS Plan (15.12.2022 – 14.12.2024), dated 15 December 2022” with less therapy than has been recommended by his allied health providers, however, I would recommend more than what the Agency has agreed to fund.
Based on my understanding of the evidence, my clinical experience, and knowledge of Alex's disability, I believe that he would benefit from:
-       60 hours of physiotherapy (48 hours of therapy, six (6) hours of hydrotherapy training, six (6) hours for support worker training);
-       48 hours of hydrotherapy led by an allied health assistant (level two (2); and
-       Three (3) hours of additional funding for a support worker per week to support one (1) hour of exercise twice per week.
…I believe the risks of the treatment model and intensity suggested by his allied health providers could further reinforce a dependence on formal therapy supports for Alex. The proposed model does not attempt to assist Alex in building any skills of independence in his exercise therapy and does not appear to assist in improving his exercise self-efficacy. I believe that Alex would struggle to attend all five (5) appointments per week due to insufficient capacity, as he also has regular appointments with other allied health professionals including his Neuropsychologist, Dietician, Occupational Therapist, and Speech Pathologist. This is a significant factor in my clinical reasoning or reducing the number of hours per week Alex is engaging in services.[67]
[67] Ex 4, 1613-1614.
In oral evidence, Mr Kershaw stated that the suggested therapy is “a lot of therapy to be recommending a person engage with. I wouldn’t recommend physiotherapy five days a week for any of my clients, and I never have…it’s not sustainable for a person to engage in that much physiotherapy…”[68]
[68] Transcript, 9/7/24, 77, [25-40].
Importantly, Mr Kershaw spoke of “rehabilitation burn-out…People start to become a little bit institutionalised because their day-to-day lives become structured around what appointment is…it’s not encouraging the client to develop any skills of independence in management of his exercise behaviours, and is completely failing to build up his resilience and his exercise self-efficacy, most importantly being his ability to be able to exercise independently…”[69]
[69] Transcript, 9/7/24, 77-78, [40-45].
The Tribunal found Mr Kershaw to be a highly persuasive witness who articulated his recommendations carefully, explaining his reasons and the basis for his recommendations. The Tribunal is concerned about the potential for rehabilitation burn-out, and found those comments to be particularly significant.
The Respondent supported Mr Kershaw’s recommendations of 60 hours of physiotherapy (48 hours of physiotherapy, 6 hours of hydrotherapy training, and 6 hours for support worker training). The Respondent has also approved 10 hours per year of exercise physiology.
The Tribunal is satisfied on the evidence that the additional supports requested by the Applicant are not value for money pursuant to s 34(1)(c) and are not effective and beneficial as stipulated by s 34(1)(d) of Act. The Tribunal is not satisfied on the evidence that the requested supports would substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant.
ISSUE 23
The Applicant is requesting 120 hours per year for dietician support but the Respondent has approved 16 hours per year. There is some clinical support for this request.
The Applicant has a treating dietician, Ms Gina Stear. In her report of 10 May 2022,[70] Ms Stear noted that the Applicant has been in her care since December 2021, and that she had been seeing him every 6 weeks, about 8 - 9 times a year. She noted that there has been a positive progress with the Applicant showing significant clinical and nutritional improvements, including a decrease in raised liver enzymes, loss of 1kg in body weight, and the Applicant making healthier food choices. She indicated that due to the nature of the Applicant’s condition, including the history of amnesia associated with his seizures, consistency and repetition, supervision, physical reminders and constant positive reinforcement was required. Ms Stear supported additional assistance with meal preparation and practical reminders for implementing healthy eating strategies independently.
[70] Ex 4, 100-101.
In his report dated 10 May 2022, Dr Conroy observed[71] that the Applicant’s family had utilised funding for a dietician and had developed a meal plan to manage his weight. This reportedly involved having access to frequent, nutritious meals and snacks. Dr Conroy noted that the Applicant and his family had been using a food delivery service, but had decided that supporting the Applicant to prepare and cook more meals himself was the most desirable option.
[71] Ex 4, 98.
In his report dated 12 May 2023, Dr Conroy noted:
Alex has a long-standing diagnosis of ADHD. This syndrome places him at an increased risk of obesity, with a recent review providing meta-analytic evidence for a significant association between ADHD and obesity/overweight (Cortese et al., 2015).
Direct observations and feedback in sessions indicates that Alex has difficulty inhibiting the urge to eat. Typically, Alex spends a lot of time on his computer in a room next to the kitchen. Frequent cues and reminders of food in his nearby environment are likely to result in increased eating; due to his ADHD he appears to find it difficult to inhibit behaviour. Support for this assertion was recently provided when Alex was suffering from Covid. He had to remain in his room and he relied on family members to provide him with food. This period saw a reduction in eating and weight loss. However, to continue with this approach on an ongoing basis would be classified as a restrictive practice and would likely result in other challenging behaviours over the long term.
Alex has made some gains by engaging with a dietician and trying to follow a meal plan; however, due to issues with disinhibition, he has difficulties in consistently following this plan. Support to increase physical activity levels is necessary to reduce his weight and maximise his health. Given his susceptibility to functional neurological symptoms (headaches, dissociation, non- epileptic seizures) when accessing mainstream fitness options (e.g., gyms, pools) NDIS funding to access specialised physiotherapy and exercise physiology services appears to be reasonable. In my opinion it is reasonable to seek NDIS funding for these services; his ADHD and FND are contributing to his obesity and liver disease and funding for these interventions is likely to proactively reduce future health complexities and help promote healthy future habits.[72]
[72] Ex 4, 1117.
In her report dated 18 March 2024, Ms Ploszaj referred to the Applicant’s Modified Barthel Index (MBI) score of 10/10 for independence in terms of feeding; she noted that the Applicant feeds himself independently and can prepare light snacks. She also noted that Mrs Goder had described inconsistent memory symptoms post seizure which sometimes affected this task.[73] Ms Ploszaj indicated that the Applicant would benefit from recommended “intervention with OT for equipment prescription, visual schedule and building capacity in this area to increase his independence with this task…He will also require ongoing supports to manage his diet relating to his medical condition.”[74] She noted that the Applicant would benefit from assessment and intervention of a Dietician due to his specific dietary requirements related to his fatty liver and medical condition. Recommendations and costs should be sought from a Dietician.[75]
[73] Ex 4, 1637.
[74] Ex 4, 1638.
[75] Ex 4, 1642.
In her report dated 30 January 2024, Professor Scheffer observed that the Applicant had lost 9kg through his current regime of being managed by a dietician, exercise physiotherapist and a personal trainer.[76]
[76] Ex 4, 1536.
The Respondent contended, and the Tribunal accepts that the requested increase in dietician hours is not justified. The Respondent has agreed to fund 16 hours per year for dietician support. The Tribunal is satisfied that although there is evidence to support the contention that the Applicant has benefitted from the input of a dietician, the cumulative evidence does not support the request for 120 hours per year – which is more than 2 hours a week.
The Tribunal is satisfied that the Respondent’s agreement to fund 16 hours per year is reasonable and that the additional funding requested is not value for money, pursuant to s 34(1)(c) and is not effective and beneficial, pursuant to s 34(1)(d) of the Act. The Tribunal is not satisfied on the evidence that the requested support would substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant. The Tribunal also accepts the Respondent’s contention that the additional funding is not related to the Applicant’s disability, pursuant to r 5.1(b), as additional dietary support is aimed at weight loss which is a health issue.
ISSUE 24
The Applicant had requested 52 hours per year for acupuncture but changed his position to 48 hours per year acupuncture. The request is not approved by the Respondent.
In her report dated 3 January 2024, Ms Xin Gu, Acupuncturist, indicated that there has been:
…a substantial positive impact on Alexander's pain level since introducing acupuncture and other Traditional Chinese Medicine (TCM) therapies. Previously, his pain consistently ranged between 6-7 on a 10-point scale. Now, he reports significantly lower levels (3-5), even describing his most relaxed state ever. Notably, his back pain has completely resolved.
While occasional pain persists, this is because with ongoing physiotherapy exercises. As the physiotherapist's report suggest that Alex might need to increase exercise frequency. Acupuncture plays a crucial role here, helping to loosen tight muscles and improve overall health, making additional exercise more manageable.
Additionally, although he had several negative symptoms throughout the year 2023 , he only had one serious incident in January. From Chinese medicine point of view, this is due to my focus on clearing phlegm and wind through acupuncture and gua sha techniques, as well as the practice of physiotherapy[77]
[77] Ex 4, 1466.
The Tribunal observes that Ms Gu noted that occasional pain persists due to the ongoing physiotherapy exercises, which could potentially increase. The Tribunal is satisfied that the evidence indicates that further assessments are required to determine the nature and amount of therapy the Applicant requires, and that it is unclear how acupuncture is related to the Applicant’s disability pursuant to r 5.1(b).
The Tribunal is satisfied that the cumulative evidence indicates that the request for 52 hours of acupuncture is not value for money, pursuant to s 34(1)(c), is not effective and beneficial, pursuant to s 34(1)(d) of the Act, and it does not meet the criteria set out in s 34(1)(f).
ISSUE 25
The Applicant had requested 52 hours per year for a 3D art tutor but changed his position to 48 hours per year for 3D art tutor, which the Respondent does not approve.
Mrs Goder suggested that 3D art activities support the Applicant’s wish and goal to assist his brother make his computer games and artwork.[78]
[78] Ex 3, 213.
Dr Conroy supports this request; in his letter dated 21 February 2023,[79] Dr Conroy supported 3D art lessons as follows:
Alex’s disability relates to a range of conditions including Functional Neurological Disorder (FND), Autism Spectrum Disorder (Level 1) and ADHD; all these conditions impact upon his presentation and functioning. His disability makes it difficult to access mainstream art classes. Alex’s FND symptoms were precipitated and exacerbated when attending TAFE to attend art lessons. TAFE subsequently advised Alex to stop attending as he was suffering from frequent, uncontrolled non- epileptic seizures. Although there have been significant improvements in his functioning, attending mainstream art classes at TAFE or similar setting is not achievable at this stage.
…Alex long term goal is to work and make a living from being an artist. As stated above, attempts to gain formal qualifications have failed and made his condition worse. He did have success in following online art tutorials, but he struggled without structure and his motivation fluctuated. To increase engagement, he used NDIS funded support workers to support him to complete tutorials. However, digital art lessons with a qualified art teacher appear to be the best method for increasing his skills and knowledge in art.
…Alex has already learnt and applied new skills following only a handful of lessons. These increased skills are likely to improve his economic participation and may lead to paid work.
Additionally, Alex’s main social activity occurs with friends online. He had completed art tasks for his friends in the past, but this has been limited to certain art styles or projects. The goal of his art lessons is to increase his skill in different art techniques and trial programs, which is likely to increase the possibility of more art projects for his friends and the opportunity for more social engagement.
[79] Ex 4, 393-395.

Given the Tribunal’s earlier findings that further assessments are required in relation to, among other things, the wheelchair, the Tribunal is not satisfied that the request meets any of the criteria stipulated by s 34(1).
Moreover, the Tribunal observes that the family had made a decision to modify their bathroom without the approval by the Respondent, and as such, it appears to the Tribunal that this retrospective request is not following protocols and cannot be said to have met s 34(1) criteria – that is, the request needs to go to the Respondent that undertakes assessments in order to determine whether funding meets legislative and/or policy requirements.
ISSUE 34
The Applicant is requesting $146,690 for home modifications, namely widening of the Applicant's bedroom door and front door for wheelchair accessibly, supply and installation of an elevator, $2,000 per year for maintenance of the elevator, all of which the Respondent does not approve.
During the hearing there were discussions about modifications to the laundry on the ground floor to assist in showering the Applicant after a seizure. The family expressed concerns about the appropriateness of using the laundry for that purpose as waterproofing might not be adequate. Post-hearing, the Applicant provided documents raising concerns from an insurance point of view, and a letter from Ms Teune, dated 3 September 2024, stating:
It must be made clear that it should NOT be recommended to use a shower hose anywhere other than the shower. This is because homes are built with sufficient waterproofing to handle that much water in the shower area only. Other wet areas such as the remaining bathroom outside the shower or the laundry are designed to handle splashes of water, but not the amount of water that comes out of a shower hose. This amount of water would likely lead to water damage in these other areas.
National Construction Code 2022
10.2 Wet area waterproofing
10.2.5 Other areas
(2) For laundries and WCs, the following applies:
a. The floor of the room must be water resistant.
b. Wall/floor junctions must be water resistant, and where a flashing is used, the horizontal leg must not be less than 40 mm
Being water resistant means that it can resist immediate penetration of water to some degree but not for very long or completely. It is not designed to hold large amounts of water over a period of time and is therefore not suitable to be used for showering.
The Tribunal is somewhat concerned about an OT providing an opinion arguably unrelated to their area of expertise, and as such the Tribunal gives limited weight to Ms Teune’s opinion. In any case, there is no suggestion by the Respondent or the Tribunal that any such proposal would be contemplated without proper building/construction advice or contrary to insurance requirements. The Tribunal makes no recommendation in this regard but it is evident that this could be a potential alternative to the proposed lift option.
In her report of 4 May 2022, Ms Teune recommended the installation of a lift. She stated “Alexander requires a lift to access the second storey of the house which include his bedroom and accessible bathroom.”[101] The Applicant provided a proposal for the lift including its design and cost.[102]
[101] Ex 4, 21.
[102] Ex 4, 1542-1553.
In her report of 18 March 2024, Ms Ploszaj noted that in terms of internal mobility, the Applicant is “independent with all mobility and ambulation indoors as per observed videos…MBI score: 15/15, as Mr Goder is physically independent within the ambulation domain… Mr Goder’s mother stated that he is independent with indoor mobility albeit he fatigues quickly…He reportedly loses function following a seizure..”[103]
[103] Ex 4, 1635.
In relation to home modifications such as bathroom renovations and an elevator, Ms Ploszaj stated:
…I don’t understand the reasoning for it, because he is independent with his mobility. Generally, when I have done modifications in the past it’s for somebody who has a chronic impairment and can’t access certain areas. I probably wouldn’t feel comfortable making recommendations for home modifications based on the potential for a seizure maybe having a certain outcome. If it was the case, I would make the recommendation for having a downstairs area to maintain his safety. If there was an incident where he did have a loss of mobility, then I would have a downstairs area that he could access. However if the seizures were to be severe and they were to become chronic and they were to become consistent and his mobility was to be an issue long term, then my recommendation would be single flat-level accessed living. Not two-storey living. Yes, but at this point in time I’m not seeing the reason for having home modifications performed.
Just in relation to the downstairs bathroom, I can see on page 16, or 1,636 of the bundle, you do talk about the provision of a sofa bed on the ground floor and a handheld shower hose attached to the laundry tap, and provision of a wheeled commode to maintain safety. Now, there’s been some expressions of some practical difficulties of a wheeled commode being used. Do you think there’d be any difficulty with it being used in this context downstairs? -From the information that I’ve received in terms of the photographs, I felt that there was sufficient space to be able to do that, but again without being able to actually be in the space and measure it, I can’t say for certain. However I feel that there would be a solution that we could navigate for that downstairs provision of temporary safety measures.[104]
[104] Transcript, 9/7/24, 58, [10-35].
Ms Ploszaj stated “I do not agree with the recommendations for major home modifications, nor the clinical reasoning. He does not currently have a stable long-term disability affecting his mobility which can be appropriately assessed due to fluctuations and inconsistencies… Should the mobility issues become more permanent or serious, then the family would benefit from living in a single storey dwelling that meets Australian Disability Standards 1428.1 and 1428.2 which his current house does not meet and is not in a position to be modified. As it is a private hold, it is most common for families to sell the property and use the funds to purchase a more appropriate and safer dwelling…”[105]
[105] Ex 4, 1652.
Ms Ploszaj recommended that the Applicant be “assessed by an appropriately trained OT for functional impairment changes following a seizure to identify what symptoms seizures cause related to his functional skills. He should also undergo a series of standardised cognitive testing over the period of a year to identify any fluctuations that occur as a result of the seizures in order to gain an understanding if or how the seizures have a functional impact on his capacity and if there are related risks related to these outcomes.”[106]
[106] Ex 4, 1628.
In oral evidence, the following exchange occurred between Ms Ploszaj and Counsel for the Respondent:
(Counsel for the Respondent) Yes, and I take it you’re aware that there were a number of recommendations in relation to home modifications, such as bathroom renovations and an elevator and the like. Do you have a view about whether that’s reasonable?
(Ms Ploszaj) I don’t understand the reasoning for it, because he is independent with his mobility. Generally, when I have done modifications in the past it’s for somebody who has a chronic impairment and can’t access certain areas. I probably wouldn’t feel comfortable making recommendations for home modifications based on the potential for a seizure maybe having a certain outcome. If it was the case, I would make the recommendation for having a downstairs area to maintain his safety. If there was an incident where he did have a loss of mobility, then I would have a downstairs area that he could access. However if the seizures were to be severe and they were to become chronic and they were to become consistent and his mobility was to be an issue long term, then my recommendation would be single flat-level accessed living. Not two-storey living. Yes, but at this point in time I’m not seeing the reason for having home modifications performed.
(Counsel for the Respondent) Just in relation to the downstairs bathroom, I can see on page 16, or 1,636 of the bundle, you do talk about the provision of a sofa bed on the ground floor and a handheld shower hose attached to the laundry tap, and provision of a wheeled commode to maintain safety. Now, there’s been some expressions of some practical difficulties of a wheeled commode being used. Do you think there’d be any difficulty with it being used in this context downstairs? -
(Ms Ploszaj) From the information that I’ve received in terms of the photographs, I felt that there was sufficient space to be able to do that, but again without being able to actually be in the space and measure it, I can’t say for certain. However I feel that there would be a solution that we could navigate for that downstairs provision of temporary safety measures.[107]
[107] Transcript, 9/7/24, 58, [10-35].
The Tribunal is satisfied that although there is some evidence supporting the request for home modifications, there is also persuasive evidence that the Applicant’s condition is not stable, that he requires further assessments, and as such the proposed home modifications are premature. On the basis of the cumulative evidence, the Tribunal is not satisfied that any of the requested supports meets the s 34(1) criteria. The Tribunal is not satisfied on the evidence that the requested supports would substantially improve the life stage outcomes for, and be of long-term benefit to, the Applicant.
Reimbursement requests
ISSUES 35-50
The Applicant is requesting reimbursements of $605 for cleaning services, $203.48 for gardening services, $4,050 for personal training, $3,730 for acupuncture, $1,681 for neuropsychology, $1,272.59 for physiotherapy, $242 for dietitian, $2,106.86 for vitamins, $1,361.19 for low-cost assistive technology, $725.79 for the Adobe subscription, $1,572.10 for transport, $983.87 for electricity, $10,331.86 for pool maintenance and clean up, $1,504.33 for stationary, storage, laser toner, $397.55 for mask refills, and $880 for orthotics. The Applicant provided receipts in support of those reimbursements.[108]
[108] Ex 5, 3406-3425, 3586, 3599, 3609, 3634, 3638-3656, 3667-3670, 3674, 3676, 3679.
The Respondent does not approve any of those requests. The Respondent contended that when those costs were incurred, they had not been approved by the Agency.
The Tribunal has previously dealt with the requests for support in relation to acupuncture, physiotherapy, dietician, vitamins, electricity, adobe subscription, mask refills, and orthotics. The Tribunal has also dealt with the request for partial reimbursement of bathroom modification. For the stated reasons, the Tribunal was not satisfied that the requested supports met the s 34(1) criteria.
Given the Tribunal’s earlier findings that further assessments are required, the Tribunal is not satisfied that any of the request meets the criteria stipulated by s 34(1).
Moreover and as observed earlier, the family made decisions about expenditure without the approval by the Respondent, and as such, the Tribunal is not satisfied that this retrospective request is following protocols and cannot be said to have met s 34(1) criteria – that is, the requests need to go to the Respondent that undertakes assessments in order to determine whether funding meets legislative and/or policy requirements. It is fair to say that there are legitimate procedures to be followed before the Respondent could approve funding, and/or any reimbursements; the Respondent has a responsibility of expenditure and costs, and it is anticipated that participants follow protocols that assist the Respondent in discharging its legal obligations.
Other Requests
ISSUE 51
The parties have agreed on a 3-year plan.
Although it has been noted that further assessments are required and that the Applicant’s condition is not stable, suggesting more flexibility, the Tribunal is of the view that a shorter plan could potentially mean more stress to the family; Mrs Goder’s comments during the hearing resonate with the Tribunal; she stated that the family would not want to come again to the AAT, and that it would be “nice to have a stable three-year plan”.[109]
[109] Transcript, 10/7/2024, 45, [5].
The Tribunal acknowledges the family’s efforts and time that they have put into the review. They are not legally represented and both Mr and Mrs Goder had to navigate complex laws and procedures. The Tribunal wholeheartedly acknowledges that Mrs and Mr Goder only want what they consider to be best for the Applicant.
On balance, the Tribunal is satisfied that the agreed three-year plan is reasonable in the circumstances.
ISSUE 52
The Applicant is requesting that his entire SOP supports be self-managed. The Respondent does not agree and contends that there is an unacceptable risk – s 44(2A).
The Applicant contended that self-management allows flexibility. Mrs Goder also contended that the Agency has made mistakes.
The Respondent contended that funds have been used by the Applicant for everyday expenses such as a Nintendo switch sports game, a second hand iPhone, air conditioning and a washing machine, which are items that would be expected to be purchased independently regardless of whether a person is a participant on the NDIS, and it cannot be said that they relate to the Applicant’s disability. The Respondent noted that in some instances, the Applicant has purchased supports using NDIS funding after funding had been declined, and that the use of funding for unauthorised items risks the inability to fund supports which are needed for the Applicant’s disabilities.
The Respondent relied on Ms Ploszaj who observed that funding for occupational therapy has been used for neuropsychology services, which does not appear to be effective. Furthermore, Ms Ploszaj recorded a history that the Applicant’s mother is experiencing stress through managing aspects of the plan.
Ms Ploszaj was asked:
To the extent that you are able to, do you consider that the applicant's parents are appropriately managing Alex's plan, noting that Alex's parents have previously spent funds on the following:
a. Personal training;
b. Adobe subscription;
c. Ergonomic office chair;
d. Nintendo Switch sports game;
e. iPhone;
f. Air-conditioner;
g. Washing machine; and
h. Prepared meals.[110]
[110] Ex 4, 1653.
She replied:
It is in the best interest of Mr Goder for his funds are plan managed to ensure that funds are being utilised for appropriate services.
The specific use of OT funds which have been spent on Neuropsychology to perform a sensory desensitisation role has not been of maximum benefit to Mr Goder’s sensory rehabilitation.[111]
[111] Ex 4, 1653.
Section 44(2A) of the Act refers to circumstances in which a person must not manage funding, including, if the CEO is satisfied that the “plan nominee’s management of the funding for supports under the plan to a particular extent would present an unreasonable risk to the participant.”[112] In terms of policy, “unreasonable risk” includes “not spending in accordance with the plan, or involving the NDIS more generally”.[113]
[112] Section 44(2A)(b) of the NDIS Act.
[113] NDIS Self-Management Policy, June 2022, at 7.11.7.
During the hearing, the Respondent gave examples of occasions when NDIS funds were used for items, including air-conditioning, switch games, and Nintendo when they were purchased without the Respondent’s approval. In the course of the hearing, Mrs Goder gave evidence that she had requested approval for the air-conditioning for the last two years but the Respondent rejected it. She stated that she “deem it as a necessity” for the Applicant.[114]
[114] Transcript, 10/7/2024, 74, [20].
The Tribunal appreciates Mrs Goder’s good intentions, however, the evidence before the Tribunal supports a conclusion that there is an unreasonable risk to the Applicant, and consequently s 44(2A) is satisfied. In essence, and for the stated reasons, the Tribunal is satisfied that this request is not supported.
ISSUE 53
The Applicant contends that the following diagnoses be recognised by the Respondent so that the Applicant may access supports for diagnoses of Chromosomal microdeletion 15q11.2, FND, Autism Spectrum Disorder Level 1 (ASD), non-alcoholic fatty liver disease, ADHD, mild intellectual impairment, global development delay, obesity, and vitamin deficiency.
The Tribunal notes that the Applicant has been accepted into the NDIS Scheme on the basis of FND, ASD, ADHD, seizure disorder, and 15q11.2 microdeletion. There are other conditions that have been identified by various practitioners, including diagnoses of schizophrenia, psychosis and symptoms of low mood and anxiety. However, it is fair to say that on balance of the evidence before the Tribunal it is difficult to identify how those conditions impact the Applicant’s capacity or indeed presentation. The Tribunal heard evidence that the Applicant has “imaginary characters” including a fourth “character” that the Applicant had “experienced” at the time of the hearing.[115] However, on the available material, the Tribunal is not in a position to conclude the existence or otherwise of any mental health concerns, conditions, or of their impact.
[115] Transcript, 10/7/24, 33, [30].
The Applicant has relied on the letter from Professor Scheffer, dated 30 January 2024.[116] Professor Scheffer noted the history and development of the Applicant’s conditions stemming from a viral illness which began at the age of 16. She noted that the Applicant had inherited the 15q11.2 microdeletion, that he has features of mild intellectual disability, ASD, ADHD, obesity and fatty liver. She noted that the Applicant has severe functional neurological seizures which are currently very well managed with the input of his neuropsychologist and psychiatrist, and that his obesity is being actively managed with the neuropsychologist, dietician and physiotherapist.
[116] Ex 4, 1534-1537.
The Tribunal accepts the Respondent’s contentions that in circumstances where the Respondent has not declined any of the supports sought on the basis that they are not related to the conditions for which the Applicant had been accepted into the Scheme, the basis for this request is unclear and unfounded.
The Tribunal is satisfied that the Applicant's access to the NDIS Scheme is based on FND, ASD, ADHD, seizure disorder, and 15q11.2 microdeletion. The Tribunal is satisfied that the Respondent can only fund supports if they satisfy, among other things, the requirements of s 34(1) of the NDIS Act which requires six mandatory criteria to be met before a support is considered to be a ‘reasonable and necessary support’.
CONCLUSION
Having regard to the evidence independently and cumulatively, and for the reasons outlined above, the Tribunal is satisfied that the disputed requested supports do not satisfy the legislative requirements (or policy) as contemplated by s 34(1), in that the supports sought are not reasonable and necessary. In fact, the Tribunal is concerned that the amount and nature of the supports sought risk rehabilitation burn-out, as well as a degree of dependence, as highlighted by practitioners including Mr Kershaw.
In those circumstances, the correct and preferable decision is to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 230 (two hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President A Younes

.........................[SGD].........................
Associate
Dated: 1 October 2024

Date(s) of hearing: 8 – 10 July 2024

Date final submissions received: 3 September 2024

Applicant: Mr C Goder and Mrs Y Goder

Counsel for the Respondent: Mr M Nesbeth,

Solicitors for the Respondent: Ms S Miller, Sparke Helmore Lawyers

Date(s) of hearing:	8 – 10 July 2024
Date final submissions received:	3 September 2024
Applicant:	Mr C Goder and Mrs Y Goder
Counsel for the Respondent:	Mr M Nesbeth,
Solicitors for the Respondent:	Ms S Miller, Sparke Helmore Lawyers