Hudson and National Disability Insurance Agency

Hudson and National Disability Insurance Agency [2017] AATA 2176 (13 November 2017)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2017/0114
Re:Robert Hudson
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Professor R McCallum AO, Member
Dr L Bygrave, Member
Date:13 November 2017
Place:Sydney

The Tribunal sets aside the reviewable decision dated 14 November 2016 and in substitution, decides that funding for Mr Hudson to attend a two-hour activity-based exercise session once per week at NeuroMoves for 48 weeks meets the criteria for a reasonable and necessary support in accordance with the National Disability Insurance Scheme Act 2013 (Cth).
...........................[sgd].............................................
Professor R McCallum AO, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – spinal cord injury – attendance at weekly exercise therapy targeting the Applicant’s spinal cord injury at a specific service provider – whether NDIA should fund the Applicant’s weekly exercise therapy sessions – whether the weekly exercise therapy is a reasonable and necessary support within the context of s 34(1) of the National Disability Insurance Scheme Act – decision set aside and substituted
LEGISLATION
National Disability Insurance Scheme Act 2013 (Cth) ss 33, 34, 100, 103, 209
SECONDARY MATERIALS
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
REASONS FOR DECISION
Professor R McCallum AO, Member
Dr L Bygrave, Member
13 November 2017
INTRODUCTION

The applicant, Mr Robert Hudson, is aged in his mid-fifties. He lives on the Central Coast of New South Wales (NSW) with his wife and son. His daughter, her partner and their toddler twins live close by.
In November 2010, Mr Hudson suffered a spinal cord injury as the result of an assault. He fractured his C1-2 vertebrae and was diagnosed with incomplete (C1 Asia D) tetraplegia. Put in layperson’s language, when a spinal cord injury is incomplete, it means that the spinal cord has not been completely severed. In Mr Hudson’s circumstances, some of the spinal cord nerves still transmit signals.
As soon as he was stabilised, Mr Hudson was transferred for inpatient rehabilitation at Moorong Spinal Unit, Royal Rehabilitation Centre, Ryde.
Dr Roxana Heriseanu, Mr Hudson’s treating rehabilitation physician at the Moorong Spinal Unit, wrote a report dated 18 September 2017. She detailed Mr Hudson’s main functional limitations arising from his spinal cord injury as follows:
(a)Mobility: this is limited, was initially discharged with walking frame and a powered wheelchair; he now walks with a walking stick and occasionally uses attendant propelled manual wheel chair for outings.
(b)Personal care: needs assistance for toileting, showering, dressing and can only use commode chair, as he is unable to transfer onto toilet.
(c)Decreased sensation in both upper limbs.
(d)High falls risk (has already fallen 5 times, out of which 2 falls had significant consequences requiring admission in hospital and surgical intervention).
(e)Pain has been an ongoing issue since his injury and has to take strong narcotic analgesics for pain control.
(f)Spasticity developed as a result of his injury and has to be treated with oral medications and also had injections of Botulinum toxin in the affected muscles.
(g)Neurogenic bladder for which he had supra pubic catheter insertion and occasionally intravesical injections of Botulinum Toxin.
(h)Neurogenic bowel requiring daily care to prevent accidents.
(i)Sacral pressure area which was difficult to heal and is prone to further occurrences as the skin is now frail in that area.
(j)High risk of recurrent chest infections due to diminished respiratory capacity.
(k)Reactive depression (still on treatment).
(l)Unable to attend to any domestic activities.[1]
[1] Exhibit A1.
In her evidence to the Tribunal, Mr Hudson’s wife, Mrs Pam Hudson said that her husband nearly died following his assault in 2010. His injury brought about huge changes in the lives of Mr and Mrs Hudson and their family.
Mr Hudson and NeuroMoves
In May 2013, Mr Hudson began attending a program at (now named) NeuroMoves, which was established by Spinal Cord Injuries Australia and is situated in Lidcombe, Sydney.
From the evidence before the Tribunal, from May 2013 onwards Mr Hudson attended NeuroMoves once per week for a two hour individually designed, community-based exercise program session. The exception was two periods when Mr Hudson had falls resulting in injuries; he did not attend NeuroMoves while he was recovering from these falls.
Although the evidence was a little unclear, the Tribunal accepts that Mr Hudson began attending NeuroMoves twice a week from June or July 2016 until October 2016. In other words, Mr Hudson undertook two sessions a week with each session lasting for two hours for a period of from three to four months in 2016.
In a letter dated 6 April 2017, Ms Claudia James, an exercise physiologist at NeuroMoves, described the program in the following words:
NeuroMoves is an individually-designed community based exercise program which provides intensive activity based exercise therapy to assist a person with a spinal cord injury (SCI) or other physical and/or neurological disability to improve and maximise their functional ability and lead a more independent life. Our clients regularly report significant functional improvements from their involvement in the program which has led to a positive impact on their quality of life.
Each client receives an individually tailored exercise program aimed at developing skills necessary to achieve specific functional goals. Each two hour session is performed out of the wheelchair one-on-one with a qualified Exercise Physiologist or Physiotherapist and involves task specific training, strengthening and coordination of the whole body, posture stability exercises, weight-bearing activities, gait and locomotor training and functional electrical stimulation. Some exercises require hands-on assistance from more than one therapist and NeuroMoves offers the flexibility to have extra therapists or students available as required.
Unfortunately many gyms and their staff cannot meet the specialist needs of people with physical disability due to inaccessibility, lack of experience and specialised training of staff or inaccessible equipment. All NeuroMoves facilities provide those with a disability with an appropriate environment to exercise in, complete with accessible gym equipment and expertly trained and experienced staff.[2]
[2] Exhibit A3.
Mr Hudson applies to the NDIS
Before the National Disability Insurance Scheme (NDIS) commenced in NSW, Mr Hudson received assistance from programs funded by the NSW Government. However, Mr Hudson applied to the NDIS for assistance once it commenced.
Mr Hudson’s first participant plan was approved on 27 August 2016 and provided funding totalling $110,299. The plan was approved pursuant to subsection 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act).
In October 2016, Mr Hudson sought an internal review of his participant plan. Put briefly, for the purposes of the matter before the Tribunal, Mr Hudson was concerned that his participation plan did not give him sufficient money to attend NeuroMoves.
On 14 November 2016, pursuant to subsection 100(6)(b) of the NDIS Act, an internal reviewer at the National Disability Insurance Agency (NDIA) varied Mr Hudson’s participation plan. A letter to Mr Hudson from the internal reviewer at the NDIA dated 14 November 2016 read in part as follows:
…
I have completed my investigation and decided to change the decision. This is because I accept that capacity building supports, namely physiotherapy supports, have positively impacted on your physical function to-date and that there is evidence demonstrating your improvements and where your physiotherapist projects further improvements can be achieved.
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Summary of changes:
·To increase Capacity Building - Daily Activities supports for therapy supports to $5568. This is equivalent to 6 months of 1:1 for 2hrs per week. This support can be used flexibly within this budget. At the end of this support, the [NDIA] would expect to see an established home-based program and/or a program that can be undertaken [with trained carer support where needed] locally, this may include consideration of the local gym and/or pool…[3]
[3] Exhibit T, T3.
Put simply, Mr Hudson was granted funding to attend NeuroMoves once a week for six months. The NDIA then expected Mr Hudson to leave NeuroMoves and to undertake a home-based or locally-based exercise program.
Having regard to the internal reviewer’s decision of 14 November 2016, the NDIA then produced a second participation plan which replaced Mr Hudson’s first participation plan. The second participation plan commenced on 28 November 2016 and is to be reviewed on 28 November 2017.
Mr Hudson was not satisfied with the review decision because he wished to continue to utilise the NeuroMoves program into the future.
Subsequently, Mr Hudson sought review from the NDIS Division of the Tribunal. As his initial review application was out of time, he was required to seek an extension of time and this was granted on 23 January 2017.
RELEVANT LEGISLATION
Section 33 of the NDIS Act sets out the content of participation plans as follows:
Matters that must be included in a participant’s plan
(1)A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)     living arrangements; and
(ii)    informal community supports and other community supports; and
(iii)    social and economic participation.
(2)A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c)the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
…
[original emphasis]
Mr Hudson asserts that his twice weekly attendance at NeuroMoves to participate in its program is a necessary and reasonable support which should be funded by the NDIA pursuant to subsection 33(2)(b) of the NDIS Act.
Subsection 34(1) of the NDIS Act sets out the criteria for the funding of necessary and reasonable supports as follows:
Reasonable and necessary supports
(1)       For the purposes of specifying, in a statement of participant supports, the   general supports that will be provided, and the reasonable and necessary             supports that will be funded, the CEO must be satisfied of all of the   following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)     as part of a universal service obligation; or
(ii)    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
Of course, subsection 34(1) is only one provision in a detailed statute governing the NDIS. This provision must be interpreted having regard to the entire statute and subsection 34(1) must be read in conformity with the purposes and objects of the Act. The Parliament of Australia has expressly provided objects and principles in the NDIS Act to give guidance on the interpretation of the statute and these apply to the interpretation of subsection 34(1).
It is not necessary to set out the objects and principles in their entirety, but for the purposes of this decision we reproduce the following objects and principles.
3 Objects of Act
(1)The objects of this Act are to:
(a)in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b)provide for the National Disability Insurance Scheme in Australia; and
(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 launch; 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;
…
(3) In giving effect to the objects of the Act, regard is to be had to:
…
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme;
…
4 General principles guiding actions under this Act
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(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.
…
(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.
…
(17)It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a)the progressive implementation of the National Disability Insurance Scheme; and
(b)the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Importantly, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules) address the assessment and determination of “reasonable and necessary supports” that will be funded by the NDIA. By virtue of section 209 of the NDIS Act, the support rules form part of the legislation.
THE HEARING
Mr Robert Hudson and his wife, Mrs Pam Hudson, attended the first day of the hearing in person and gave evidence to the Tribunal. Mr Hudson was represented by counsel.
The second day of the hearing comprised the closing addresses by counsel, and Mr and Mrs Hudson attended by telephone.
At the outset of the hearing, the Tribunal asked Mr Hudson’s counsel what necessary and reasonable supports he was seeking. Counsel responded that Mr Hudson was seeking twice weekly attendance at NeuroMoves; that is, two sessions each of two hours duration. In total, Mr Hudson was seeking two sessions per week of two hours duration for 48 weeks which totals 192 hours for one year.
The Tribunal referred Mr Hudson’s counsel to a letter dated 4 July 2016 by Kierre Williams, Head of NeuroMoves, which set out the cost of 192 hours of exercise physiology at NeuroMoves was approximately $22,272. The Tribunal understood Mr Hudson’s counsel accepted this cost.
At the second hearing day, parties revised their positions. Counsel for Mr Hudson said Mr Hudson was now seeking one session per week of activity based exercise for 48 weeks. Additionally, Mr Hudson was requesting funding for three ‘bursts’ of 10 weeks for a second weekly session each year. Counsel for the NDIA conceded that Mr Hudson should be granted one session weekly of activity based exercise for 48 weeks but rejected his request for funding the three ‘bursts’.
Notably, Mr Hudson is not seeking cost for travel from his home on the Central Coast to NeuroMoves in Lidcombe.
The evidence of Mr and Mrs Hudson
Mr Robert Hudson and Mrs Pam Hudson each gave sworn evidence to the Tribunal.
Mr Hudson recounted that he enjoyed and his exercise sessions at NeuroMoves. In particular, he felt he benefited from exercising with other people who had similar spinal cord injuries. When he exercises elsewhere, he is usually the only person with a spinal cord injury and is labelled as the ‘disabled person’ or the ‘crook person’. He also said that being with other persons who have spinal cord injuries was good for his mental health and he enjoys the socialisation at NeuroMoves. He stated that NeuroMoves was at the forefront of research in relation to spinal cord injuries and were always evaluating new exercises and equipment. He gave the example of recently beginning to use ‘Nordic poles’ to enable him to achieve a goal of walking along a beach again. He said staff at NeuroMoves encouraged and ‘pushed him harder’ to improve.
He contrasted these sessions with the exercise sessions which he does two or three times a week at a local gymnasium. Initially he attended Physiophix but now he goes to the Active Fitness Gymnasium. He said that there are no other persons with spinal cord injuries at this gymnasium. An exercise physiologist at the Active Fitness Gymnasium gives him an exercise program every few weeks but does not ‘push him’. Mr Hudson also attended hydrotherapy and swimming classes for a period of time but this ceased approximately 12 months ago.
Mr Hudson said that he has made significant improvements in his functionality, which he credits mainly to his sessions at NeuroMoves. He initially used a walking frame and then he learned to walk with Canadian crutches. He transitioned to a walking stick and recently has begun to walk with Nordic poles along the beach on hard sand. He said that in the last few weeks he can now twist to wipe his own bottom and he is learning to sit on a special chair with arms on it which is placed over the toilet. He said he is now able to stand on his own in the shower. He has also learned to get himself onto and off the floor.
Mr Hudson said that he had inquired about other local programs from local physiotherapists. However, none had training in spinal cord injuries and they lacked the necessary specialist equipment. He provided correspondence from Mr Graeme Tipping, a sports physiotherapist from Budgewoi Physiotherapy, and Ms Natalie Gale from Hill Street Sports Medicine. The letter from Mr Tipping on 1 September 2017 noted he “was not aware of any Physiotherapy practices on the Central Coast that would be suitably staffed and equipped for [Mr Hudson’s] needs”.[4]
[4] Exhibit A5.

In her evidence to the Tribunal, Mrs Hudson said her husband’s attendance at NeuroMoves had been beneficial. She said her husband had begun to enjoy life again and become more independent. They both feel part of a supportive community at NeuroMoves. Mr Hudson is able to undertake his program with exercise physiologists with whom he has established long-term trusting relationships and with other persons who have spinal cord injuries and who celebrate each other’s achievements. Mrs Hudson attends and watches the exercise program to assist Mr Hudson at home but also has the opportunity to talk with other carers. She said talking with other carers about issues such as continence products and medical procedures provided her with a supportive environment because ‘everyone understands the issues’.
Both Mr and Mrs Hudson gave evidence that they enjoy the weekly travel from the Central Coast to Sydney. Although this is approximately a three hours return drive, they ensure it is a pleasant activity by avoiding peak hour traffic and do not find it tiring.
Mrs Hudson said it would be devastating if they had to start over at another place.
The expert evidence
Sworn evidence was given by Ms Claudia James, an exercise physiologist at Neuro Moves. She gave evidence that she treated Mr Hudson for a couple of years from 2013 and part of her report dated 6 April 2017 is quoted above. Her current role is exercise physiologist and Regional Operations Manager of NeuroMoves in NSW.
In explaining the history of NeuroMoves, Ms James recounted that Spinal Cord Injuries Australia founded the ‘Walk On’ program in Brisbane in 2009. It subsequently expanded and is now called NeuroMoves.
Ms James said that Mr Hudson participates in a one-on-one program with an exercise physiologist and the assistance of university students who are undertaking placements as part of their university studies. As a not-for-profit organisation, NeuroMoves is based on a business plan that partners with universities.
Ms James told the Tribunal that Mr Hudson’s weekly sessions comprised an individual activity-based exercise program. When he attended twice weekly from June or July 2016 until October 2016, Mr Hudson’s second session was a strengthening and conditioning exercise program.
When asked what program she would recommend for Mr Hudson, Ms James advised one activity-based exercise session each week. However, she also recommended two to three ‘bursts’ for a period of ten to twelve weeks where Mr Hudson undertook a second weekly session that mainly focused on a strengthening and conditioning program.
Sworn evidence was given by Mrs Elizabeth Shannon, a specialist neurological physiotherapist. Mrs Shannon confirmed she had neither met nor examined Mr Hudson. However, she had read the documents provided to her and was able to give expert evidence based on her thirty years of experience as a physiotherapist.
Mrs Shannon provided a written report for the Tribunal dated 27 September 2017. It read in part as follows:
Since 2013, Mr Hudson has been dedicated to his physical rehabilitation program at NeuroMoves and in his local community (gym based and pool program). Over these years, he has demonstrated physical improvements related to his mobility, transfers and physical endurance. He has documented his Plan Goals related to continuing with specific physiotherapy two days per week and to be able to access all areas of his home (indoors and outdoors).
Physical activity and exercise is an important part of physical rehabilitation following a SCI. Regular exercise decreases the risk of developing chronic health problems such as heart disease, diabetes and high blood pressure. SCI persons who exercise regularly lower their risks of developing secondary complications such as weight gain, pressure sores and urinary tract infections. In addition to the added health benefits, exercise following a SCI assists with SCI persons participating in exercise at a fitness centre or taking part in sporting activities in the community.
Mr Hudson reports that he experiences fatigue at the end of a two hour exercise session at NeuroMoves. Many people with SCI experience fatigue. Fatigue can be the result of many causes such as reduced strength and control of legs when walking or maintaining posture as well as from muscles not regaining full strength after the injury so activity is more effortful. Fatigue is also made worse with chronic pain. There are a number of strategies that can assist with managing fatigue and pain. These include pacing activities, an upgrade activity plan plus balancing rest and physical activity.
It should be noted that Mr Hudson is a 55 year old male and is aging with a SCI. There is an assumption that with increasing age after SCI, there is a decline in health function, functional independence, increased risk of falls and increase utilisation of the health care systems. Physical activity and exercise will play an important role in maintaining general health and reduce the risk of falls.
Due to ongoing physical impairments and activity limitations as a result of a SCI, ongoing therapy services (such as physiotherapy and exercise physiology) should be supported to enable the SCI person to maximise and maintain their functional physical independence at home, in the community and in the workplace.
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At the present time, Mr Hudson is attending NeuroMoves twice a week, gym two to three times per week and hydrotherapy on Friday.
NeuroMoves has assisted with improving Mr Hudson's functional physical independence since 2013 however the local based gym program, hydrotherapy and incidental exercise each day has also played a significant role in Mr Hudson's documented physical gains. The physical goals achieved over the last four years cannot be attributed to NeuroMoves alone.
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Following review of the documentation in relation to Mr Hudson and the NeuroMoves program, there are a number of benefits of the program. These include:
·         Intense 1:1 two hours sessions with a trained therapist;
·         Modified equipment to enable clients to exercise with support (such as a body weight support treadmill);
·         Additional staff (student therapists) to assist with exercise programs;
·         Opportunities to provide high repetitions of exercises to improve muscle strength;
·         Supportive and motivated environment where SCI can exercise with SCI peers;
·         Social interaction for family and carers during sessions.
The disadvantages of the Neuromoves Program include the following:
·         Distance to drive (113km one way) from Lake Munmorah. This would take from 1.5 —2.0 hours depending on the traffic one way. Therefore for two sessions per week in Sydney, there could be up to 8 hours of travel per week;
·         There is no input into functional retraining of everyday activities in his home environment and local community;
·         There is no input into his local gym based or hydrotherapy program (Fridays);
·         Ongoing fatigue following two hours of exercise;
·         Lack of input to current paid carers (if they do not travel to Sydney) that could supervise a home exercise program;
·         No evidence to support the transition of the NeuroMoves Program to therapists with expertise with SCI on the Central Coast or Newcastle Region.[5]
[5] Exhibit R1.
The Tribunal was not persuaded by Mrs Shannon’s evidence at the hearing; she was focused upon what persons with spinal cord injuries could not do, rather than their potential for functional improvements.
CONSIDERATION
Under section 103 of the NDIS Act, the Tribunal has jurisdiction to review the decision of 14 November 2016 as it was made pursuant to subsection 100(6)(b) of the NDIS Act. The 14 November 2016 decision varied Mr Hudson’s first participation plan and therefore, the Tribunal is satisfied the 14 November 2016 decision is the decision under review.
Is attendance at NeuroMoves a necessary and reasonable support within the meaning of the NDIS Act?
Having regard to the evidence, the Tribunal is satisfied the reasonable and necessary supports contained in the decision under review complied with the first four paragraphs of subsection 34(1) of the NDIS Act. These necessary and reasonable supports:
·assist Mr Hudson to pursue the goals, objectives and aspirations included in his participation plans;
·enable him to undertake activities, to facilitate his social and economic participation;
·represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support; and
·will be, or is likely to be, effective and beneficial for Mr Hudson, having regard to current good practice.
The Tribunal’s view is that paragraphs (e) and (f) of subsection 34(1), which are concerned with what is reasonable for families to provide and whether the support is more appropriately funded by other services, are not relevant to this matter.
Findings
Based on the evidence, the Tribunal makes the following findings:
(a)Mr Hudson has attended NeuroMoves once per week for a two hours session since May 2013, except for two periods when he was recovering from injuries relating to falls and approximately four months in 2016 when he attended twice per week.
(b)The evidence of Mr Hudson and his wife is that he benefits significantly – both in terms of his functional improvement and his mental well-being – from his attendance at NeuroMoves.
(c)The expert evidence and written reports of Ms James, Mrs Shannon and Dr Heriseanu show Mr Hudson has made steady improvement in his functional ability, especially in 2017. While Ms James and Mrs Shannon acknowledged his improvement could vary, they both acknowledged his capacity to now walk with a walking stick, get himself up off the floor, use Nordic poles, wipe his own bottom and stand by himself in the shower. While Mr Hudson’s visits to his local gymnasium have also assisted him, the Tribunal finds that the targeted expertise and motivation Mr Hudson has received from NeuroMoves means its exercise program has played a more prominent part in his functional improvement than his local gymnasiums.
(d)Ms James’ recommendation that Mr Hudson be funded to have two or three ‘bursts’ per year of a second weekly session was not supported by the evidence. There was not assessment made of Mr Hudson’s condition prior to and following this burst increased attendance in 2016. We also note that Mr Hudson’s biggest improvements occurred in 2017 when he was attending NeuroMoves for one session of activity-based exercises each week. Further, there is no distinction made in the evidence of the benefits Mr Hudson gained from a second session at NeuroMoves versus his attendance at his local gymnasium.
The Tribunal is satisfied that providing funding for Mr Hudson to attend a two-hour activity-based exercise session once per week at NeuroMoves for 48 weeks meets the criteria for funding a reasonable and necessary support in accordance with the NDIS Act. The Tribunal is further satisfied that this funding is consistent with the objects and principles of the NDIS Act.
DECISION
The Tribunal sets aside the reviewable decision dated 14 November 2016 and in substitution, decides that funding for Mr Hudson to attend a two-hour activity-based exercise session once per week at NeuroMoves for 48 weeks meets the criteria for a reasonable and necessary support in accordance with the NDIS Act.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Professor R McCallum AO, Member, Dr L Bygrave, Member

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Associate
Dated: 13 November 2017

Date(s) of hearing: 18 October 2017 and 1 November 2017

Solicitors for the Applicant: Ms J Finlay, Legal Aid New South Wales

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore

[2017] AATA 2176

13 November 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Remedies

Jurisdiction

Procedural Fairness

Date(s) of hearing:	18 October 2017 and 1 November 2017
Solicitors for the Applicant:	Ms J Finlay, Legal Aid New South Wales
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore