KBCX and National Disability Insurance Agency (NDIS) - [2024] ARTA 100

KBCX and National Disability Insurance Agency (NDIS) [2024] ARTA 100 (19 December 2024)
Applicant:KBCX
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/5374

Tribunal:Member S Smith
Place:Brisbane
Date:19 December 2024

Decision:The decision under review is set aside and remitted for reconsideration by the Respondent with a direction that, within 28 days of the date of this decision, the Respondent facilitate the approval of a new statement of participant supports (SOPS) for the Applicant in the current plan dated 20 August 2024, noting the following:
Conductive Education therapy does not meet the requirements of s 34(1)(d) of the NDIS Act, so it is not to be specified as a support in the Applicant’s SOPS; a)
Physiotherapy funding meets the requirements in s 34(1) of the NDIS Act and it is to be specified in the Applicant’s SOPS as a ‘stated support’ so that the funding cannot be used flexibly;b)
That all other supports in the Applicant’s existing SOPS, are to be replicated pro-ratac)    from the date of this decision until the reassessment date;
The management of funding for supports in the Applicant’s existing SOPS be replicated; d)
The date by which the Respondent must reassess the Applicant’s plan is to be twelve (12) months after the date of the approval of the new SOPS for the Applicant in accordance with this direction.e)

..................................[SGD]......................................
Member S Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – National Disability Insurance Scheme Act 2013 (Cth) – as amended 3 October 2024 – reasonable and necessary supports – reasonable and necessary budget – NDIS Supports – acquired brain injury – quadriplegic cerebral palsy – conductive education – effective and beneficial – current good practice – expert opinion – decision set aside and remitted to the Respondent
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Cases
McCutcheon and National Disability Insurance Agency [2015] AATA 624
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
TKCW and National Disability Insurance Agency [2014] AATA 501
VXGN and National Disability Insurance Agency [2023] AATA 2781
Young and National Disability Insurance Agency [2021] AATA 1555
Secondary Materials
NDIS – Operational guidelines – Reasonable and necessary supports, as at 22 September 2024.
ART Guideline on persons giving expert and opinion evidence, October 2024.
Statement of Reasons
BACKGROUND

KBCX is a twelve-year-old boy living with complex disabilities. He lives with his mother (M), his father (F) and two younger siblings in Brisbane. KBCX is seeking capacity building support funding for 267 hours per year for Conductive Education (CE) therapy.
This application was made on KBCX’s behalf by M and his paternal grandfather (Mr P). KBCX was represented at the hearing by Mr P.
On 31 July 2013, KBCX suffered a significant hypoxic episode in the lead up to scheduled cardiac surgery.[1] He was 13 months old. The episode resulted in an acquired brain injury (ABI) and residual quadriplegic cerebral palsy (CP). KBCX also lives with aortic stenosis, epilepsy characterised by frequent tonic-clonic seizures, pseudomonas infection and food allergies.[2]
[1] H2, H3, H18, H19. KBCX was diagnosed at 9 weeks old with aortic stenosis with supra valvular involvement. T1I, page 261.
[2] H55, H13, Page 910.
KBCX lives with multiple impairments across his domains of function. His impairments are rated at level V, the most severe level, on two measuring scales: the Gross Motor Function Classification System – Expanded and Revised (GMFCS-E&R); and the Manual Ability Classification System for Children with Cerebral Palsy 4 – 18 years (MACS).[3] Due to KBCX’s permanent physical impairments he currently:
·communicates in a non-verbal manner by using assistive technology (AT);
·attends a specialised school, 5 days a week during school term;
·mobilises in an attendant-propelled wheelchair;
·requires an abdominal Percutaneous Endoscopic Gastrostomy (PEG) for intake; and
·requires around the clock support for all self-care and self-management tasks.[4]
[3] H3, H16, H19. Also, Manual Ability Classification System for Children with Cerebral Palsy 4-18 years (MACS) level V.
[4] H16, pages 1030-1033.
KBCX’s parents and family provide a significant amount of care and informal support for him every day.
Since February 2016, KBCX has received CE therapy on a regular basis for his disabilities from Ms Dora Petki in her capacity as a self-employed ‘neuro rehabilitation consultant’.
KBCX became a participant in the National Disability Insurance Scheme (the scheme) on 17 December 2019 for his impairments arising from an ABI and quadriplegic CP.[5] The scheme is administered by the National Disability Insurance Agency (the Agency).
[5] Oral evidence of the Agency.
THE DECISION UNDER REVIEW
On 22 December 2021, the Agency approved a Statement of Participant Supports (SOPS) for KBCX with a review date of 21 December 2022.[6] KBCX sought an internal review of this decision which the Agency affirmed on 27 January 2022.[7] There were several remittals in a prior application to the Tribunal where several other supports in dispute were resolved. The request for continued funding for CE therapy was not resolved.
[6] KBCX’s 2022 application - T7 of Application 2022/1118.
[7] T2 of Application 2022/1118.
On 23 July 2024 the Agency declined KBCX’s request to provide continued funding for the support of CE therapy under section 100 of the National Disability Insurance Scheme Act (NDIS Act). [8] On 20 August 2024, another SOPS was implemented for KBCX for a six-month period,[9] which is now[10] (the decision under review).
[8] H11, T1A, page 518.
[9] H75, page 1651.
[10] Pursuant to section 103(2)(c)(ii) and (e) of the NDIS Act.
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
ISSUES BEFORE THE TRIBUNAL
KBCX confirmed that the only issues that remain in dispute are whether:[11]
·CE therapy, for 267 hours per year at a cost of $193.99 per hour totalling $51,795.33 is a reasonable and necessary support; and
·Physiotherapy, for 156 hours per year at a cost of $193.99 per hour totalling $30,262.44 can be used ‘flexibly’ to fund either physiotherapy or CE therapy.
THE LEGISLATION, PRECEDENT AND GUIDELINES
[11] H6, page 170. 24 September 2024. Opening submissions of Mr P.
The National Disability Insurance Scheme Act 2013 (Cth)
Since 3 October 2024, section 34(1) of the NDIS Act sets out the criteria of reasonable and necessary supports that will be provided in a participant’s statement of participant supports. The criteria under section 34(1) are cumulative and therefore all the criteria must be met which are 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:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2)The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not her or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
Section 10 of the NDIS Act provides further explanation for an ‘NDIS support’:
Definition of NDIS support
(1)Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for:
(a)participants or prospective participants generally; or
…
(2)Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:
(a)for rules to which paragraph (1)(a) applies—that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
…
The NDIS Act also sets out a number of objects for the scheme. The objects that are particularly relevant to the issues before the Tribunal are as follows:[12]
[12] Section 3 of the NDIS Act.
Objects of Act
(1)The objects of this Act are to:
…
(c)support the independence and social and economic participation of people with disability;
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch; and
(e)enable people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.
…
(3)In giving effect to these objects, regard is to be had to:
(b)the need to ensure the financial sustainability of the NDIS.
Section 4 of the NDIS Act also sets out general principles that provide additional guidance when deciding what supports should be provided by the scheme. The principles that I have considered most relevant are as follows:
(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;
(2)People with disability should be supported to participate in and contribute to social and economic life;
(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;
…
(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;
(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 mainstream 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;
(12A)The relationship between people with disability and their families and carers is to be recognised and respected;
…
(14)People with disability should be supported to receive supports outside the NDIS, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme;
(15)In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted;
…
(17)It 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 sustainability of the National Disability Insurance Scheme.
Section 17A of the NDIS Act sets out principles relating to the participation of people with disability. The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) held that:[13]
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, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in section 17A of the Act.
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
[13] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF) at [141].
Schedules 1 and 2 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Supports Transitional Rules) set out whether supports are, or generally are not, NDIS supports. ‘Therapeutic supports’ are included in the list of supports that are NDIS supports[14] and are defined as:
Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living. This includes an assessment by health professionals for support planning and review as required.
[14] Item 34 of Schedule 1, Transitional Rules.
The list of supports that are not NDIS Supports at Item 9(k) of Schedule 2 of the Supports Transitional Rules specifies that ‘alternative or complementary medicine’ are not NDIS supports.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) prescribe further statutory criteria around reasonable and necessary supports that operate alongside the NDIS Act and the Transitional Rules.
Effective and beneficial and current good practice
3.2In 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.
3.3In 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.
General criteria for supports
5.1A 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.
WRMF considered that the contextual use of the phrase ‘reasonable and necessary supports’ in the NDIS Act ‘links it to public funding to be provided to a participant’. Therefore, the phrase ‘connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principle of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant.’[15]
[15] WRMF at [151].
EVIDENCE
I have considered all of the following materials filed and agreed upon by the parties in the Joint Indexed Hearing Bundle, comprised of the following:
(a)‘T Documents’, filed by the Agency under section 23 of the ART Act; and
(b)Additional submissions from KBCX including:[16]
[16] EB2.
(i)KBCX’s response to NDIS legislative changes after 3 October 2024;
(ii)KBCX’s school principal’s letter of 24 October 2024;
(iii)Mr Brendon Withers’ letter in support of Ms Petki, of 8 October 2024;
(iv)Dr A Dowland’s letter in support of Ms Petki of 5 September 1994;
(v)Dr A Dowland’s letter in support of Ms Petki of 28 October 2024;
(vi)Ms Gwatking, Speech Pathologist’s letter of 28 October 2024;
(vii)Dr J McEniery X-ray letter of 28 October 2024;
(viii)Three letters of support from parents of clients of Ms Petki; two undated, one of 23 September 2024; and
(ix)Letter in support of Ms Petki, undated, of KBCX’s support worker Mr DP.
Evidence of KBCX
KBCX maintained that CE with Ms Petki is the ‘most effective and consistent therapy’ for his disabilities of ABI, CP, and epilepsy.[17] He considers that he has established a long-term relationship with Ms Petki as his provider of ‘intensive’ CE for nine hours each week and that, by comparison, he receives limited benefits from physiotherapy.
[17] Opening submissions of Mr P.
KBCX’s request for ongoing CE therapy funding has been summarised into four contentions that demonstrate why CE is an effective and beneficial support for him:[18]
·Firstly, the lived experience of KBCX’s mother and family and his support worker, Mr DP. KBCX also relied on Ms Petki’s reports and experience and the letters of support from carers of children with similar lived experience, regarding working with Ms Petki and participating in CE therapy.
·Secondly, that KBCX’s long-term treating medical experts support CE. KBCX referred to his medical experts which include: Dr Jeremy Bartlett, orthopaedic surgeon; Dr Mark Davoren, paediatrician; Dr Geoff Wallace, Senior Medical Officer (SMO) Paediatric Neurology, Queensland Children’s Hospital; and Dr Peter Rowan, orthopaedic surgeon.[19]
·Thirdly, that the evidence of allied health professionals supports CE as beneficial, in particular the Combined Therapy Management Plan (CTMP).[20]
·Fourthly, that there are ‘various academic materials’ regarding the benefits of CE therapy.[21]
[18] Oral evidence of Mr P, opening submissions.
[19] Dr Bartlett H18, H27, H28, H36, H40. Dr Wallace H30. A Queensland Cerebral Palsy Health Service Hip Surveillance Report dated 2 April 2015 at H40. Dr Davoren, H41. Dr Rowan H61. Ms Trickey, OT, Functional Capacity Report H26. Ms Emma Justins OT/Accredited Hand Therapist, H 44. Ms Katy Caynes Speech Pathologist H21.
[20] H38, page 1214.
[21] H8, KBCX’s response to SFIC filed 6 October 2024, Appendix C website links to CE Establishments.

KBCX also considered that CE will help him to work towards his short-term goals, including to:
·Increase independence in all areas of daily life, and rely less on informal supports; and
·Increase social and interpersonal skills and increase community participation.
KBCX lived experience evidence
Evidence of ‘M’, mother of KBCX
At the hearing, M stated that KBCX ‘requires help with everything’. M explained that due to KBCX’s vulnerability to seizures he still requires constant monitoring, including at night.[22] M outlined KBCX’s current weekly schedule of supports which are summarised below:[23]
KBCX’s schedule of supports
[22] H14, page 949. Mother’s report 5 May 2022.
[23] Oral evidence of M.

Weekday

Weekend

Total cost

Support worker

·   1:1 support, 2.5 hours on weekday mornings, and sometimes an extra hour in the morning whilst M assists KBCX’s two siblings;

·   1:1 support, 2 hours on weekday evenings.

·   One support worker for (on average) 5 hours each Saturday and Sunday.

·   $194,376.24 per year used flexibly across assistance with daily living.

Other professionals (speech pathology)

·   Currently funded for 49 hours per year, however this is frequently cancelled.

·   $19,011.02 per year.

Occupational therapist (OT)

·   Currently funded for 40 hours per year.

·   Current OT, Ms Morisaki is engaged only when required for AT prescriptions.

·   Ms Petki attends these meetings because she ‘knows KBCX better.[24]

·   $8,341.56 per year.

Physiotherapist

·   Currently funded for 156 hours per year.

·   Has not attended in the last 12 months.

·   $30,262.44 per year.

Conductive education therapy[25]

·    Currently funded for 3 sessions each week for 3 hours duration. Total of 9 hours each week.

·    $193.99 multiplied by 9 hours totals $1745.91 each week.

·   $51,948.00 per year.

·   $51,948 divided by $1745.91 totals 29.75 weeks per year at 9 hours each week.

Transport for conductive education

·   One-hour drive each way between KBCX’s and Ms Petki’s addresses. Transport is usually shared as follows:

o Monday afternoons, in October 2024 Ms Petki collected KBCX from school to her address. One of KBCX’s parents would drive him home;

o Wednesday mornings at KBCX’s home;

o Friday afternoons at Ms Petki’s home. M transports KBCX both ways.

[24] Oral evidence of M.
[25] H6.

M emphasised the importance of CE in maintaining KBCX’s functional capacity to engage in daily life. Ms Petki was referred to her family by other families in similar situations that were ‘looking for more than what the hospital had to offer.’[26] M stated that the request for flexible funding across physiotherapy and CE is for a ‘gap’ in therapy if Ms Petki is away. M maintained that only Ms Petki could perform all her CE exercises with KBCX.
[26] Oral evidence of M.
The Agency asked M about Ms Petki’s materials which note KBCX is ‘walking 100 metres.’ It was put to M that in October 2021 and March 2022 Mr Robinson-Patch, physiotherapist, documented that KBCX was only capable of walking 40 metres in his walker[27] with a 3-person physical assist.[28] Also, Ms Trickey’s OT reports in October 2021 and March 2022 documented that KBCX only walks a very short distance and requires 1:1 physical assistance to do this.[29] In regard to KBCX’s current ability to mobilise, M stated that Ms Petki ‘is able to push him harder than the rest of us can.’
[27] H29, pages 1168-1180. M confirmed KBCX’s walker is now broken and requires replacement.
[28] H29, page 1174.
[29] H10, page 265. H26, pages 1140-1141.
M explained that CE therapy is different to physiotherapy, and preferable for KBCX because CE is an ‘active therapy’, and physiotherapy is a ‘passive therapy.’[30] She found that physiotherapy has been ineffective with fluctuations in different therapist skill sets and resource availability. Since 2019, KBCX has been funded for physiotherapy between 1-3 hours per week, however M confirmed that KBCX has not received any physiotherapy support for over a year now.[31]
[30] Oral evidence of M.
[31] Oral evidence of M.
Evidence of Mr DP, support worker
Mr DP has been KBCX’s support worker since August 2021. Mr DP currently undertakes support work with KBCX for 6 days each week; and three of the week’s morning shifts are filled by another support worker. Mr DP holds a ‘yellow card’ and a ‘blue card’ to work with children in Queensland.
Mr DP stated that he was asked by Mr P to type a statement about the benefits of CE for KBCX.[32] Mr DP stated he has attended both CE and physiotherapy sessions with KBCX. His observation was that he ‘had to show the physiotherapist how to handle KBCX and how to walk him’ because KBCX ‘wouldn’t walk with his physiotherapist at all’, however, that Ms Petki had taught Mr DP ‘how to handle and walk KBCX to keep him safe.’ Mr DP considered that KBCX had a good relationship with Ms Petki and that, after missing two or more CE sessions, KBCX would be more difficult to manage due to pain and stiffness.[33]
[32] EB2, undated, unsigned 2-page statement of Mr DP.
[33] Oral evidence of Mr DP.
Evidence of Ms Dora Petki, ‘neuro rehabilitation consultant’ and ‘conductor’
Ms Dora Petki completed a ‘double degree’ in Budapest, Hungary in 1991; a Bachelor of Education and a Bachelor of Movement Therapy in conductive education.[34] Ms Petki later obtained a Certificate in Hydrotherapy Consulting and Training in Queensland in 1998.[35] Ms Petki provided multiple reports and gave oral evidence at the hearing.
[34] H3, pages 88-89. H13, page 793. Oral evidence of Ms Petki.
[35] H13, page 804.
Ms Petki describes herself as a ‘neurological rehabilitation consultant’[36] in ‘cognitive movement therapy’, or ‘motor movement therapy.’[37] Ms Petki stated there is no ‘neuro rehabilitation consultant’ accreditation authority in Australia. Ms Petki is not a registered allied health practitioner in Australia, and she holds no registration with the Australian Health Practitioner Regulation Agency (AHPRA). Ms Petki has worked for over 32 years in the area of CE. Ms Petki commenced working with KBCX in February 2016.
[36] H25, 16 December 2020. H3, page 78, 6 November 2021. H33, 22 June 2022.
[37] Oral evidence of Ms Petki.
Ms Petki described CE as a child and family-centred or ‘person-centred’ holistic, hands-on visual-therapy approach. She stated that CE is different to traditional therapies as it is not a passive exercise programme, but rather a complex rehabilitation system that combines a medical and educational approach.[38]
[38] H13, page 828.
Ms Petki explained CE differs from traditional physiotherapy, because physiotherapy is more a passive, manual exercise program, that does not involve the brain to process and learn motor movements regardless of the level of disability.[39] She stated that CE is a unique rehabilitation program, specialising in neurological and chronic conditions, to help KBCX build ‘vital’ life skills and find his ‘identity’ within his capabilities.[40]
[39] H13, pages 737-738.
[40] H5, page 151.
Ms Petki’s evidence was that intensive CE therapy has maintained and improved KBCX’s ability to function.[41] She stated that when she met KBCX, he could not turn his body side-to-side, and he almost had a dislocated hip on his right side, however that over the years of therapy sessions KBCX has ‘slowly but surely improved.’ Ms Petki also provides education around preventative therapy methods in order to prevent difficulties later on in life regarding major surgeries like scoliosis surgery and osteotomies of the hips.
[41] H13, page 826.
Ms Petki has also attended other appointments and events with KBCX, including[42]
·Medical professionals’ appointments;
·Speech pathology sessions;
·Allied health appointments;
·Occupational therapy appointments regarding wheelchairs and other equipment and AT;
·Physiotherapy appointments; and
·A recent school visit to ‘demonstrate posture for KBCX’.[43]
[42] Oral evidence of Ms Petki.
[43] Oral evidence of Ms Petki.
During cross-examination, Ms Petki was asked about her familiarity with the Medicare system in Australia and the requirements to provide particular item numbers with respect to treatment provided and to keep adequate and contemporaneous notes of the rendering of a service in order to provide sufficient clinical information to explain the services that have been provided to a person. Ms Petki explained that the ‘assessment and observation assessments done in Europe were different to Australia’ and that she did not take contemporaneous records of each occasion of providing treatment to KBCX.
Ms Petki was asked if her notes would be sufficiently comprehensible to enable another practitioner to effectively undertake her client’s ongoing care in reliance on the record. Ms Petki’s response was that she did not necessarily agree with that because the ‘hands on and visual material she provides is more appropriate in KBCX’s case due to the complexity of his disability.’
Ms Petki considered that it is her ‘hands-on’, intensive therapy that has maintained and improved KBCX’s function since a young age.[44] Further, that KBCX will need to continue with this therapy throughout his life. Ms Petki stated that CE ‘prevents, maintains and improves’ KBCX’s function,[45] and that, if the 9 hours of weekly therapy was not provided to KBCX, it would cause ‘major regression’ in his functional and physical capacity and result in significant functional decline and not being able to achieve targeted goals.
[44] H3, page 89.
[45] H3, page 94.
Ms Petki also stated that allied health assistants carry a ‘major risk’ and safety concern for KBCX. Ms Petki emphasised her Hungarian university training of over 4 years and that it was specific to neurological impairments, and that it ‘would be way too dangerous for assistance workers to do CE work with KBCX.’[46]
[46] Oral evidence of Ms Petki.
On 11 November 2021 Ms Petki invoiced KBCX for $103,896.00 for CE therapy for the following year, 2022. This amount was comprised as follows: [47]
[47] H13, page 908.

Hours per week

Rate

Total cost 2022

CE Therapy

9 hours per week

$193.99 per hour

$90,787.32

Travel time

1 hour per week

$193.99 per hour

$10,087.48

Travel fuel use

0.83 x 70km

$58.10 per week

$3,021.20

Total

$103,896.00

Ms Petki’s oral evidence outlined that, in her over 32 years of experience working with people with CP and ABI, intensive support is required. Intensive support/therapy was not defined. Ms Petki stated: ‘The CE process focuses on learning, attention to the expression of the learner’s personality and development of self-confidence and holistic principles of learning the approach to movement separating it from other physical therapy techniques.’[48]
[48] H3, page 94.
Evidence of Mr Brendon Withers, parent with lived experience of child participating in CE therapy
Mr Withers provided a letter of support[49] for Ms Petki and gave oral evidence as the father of a child who had received CE therapy from Ms Petki. Mr Withers’ son was born with a congenital heart disease. Then, after surgery, Mr Withers’ son lived with an ABI and CP and was subsequently also diagnosed with a rare syndrome confirmed by blood test. Mr Withers’ son passed away in 2020, aged 9 years old. Mr Withers stated that he (and his wife) observed that their son received ‘important therapy’[50] from Ms Petki, and that Ms Petki’s therapy was ‘part of a village of care to help him to take steps in a walking frame in 2017 and to develop enough balance to ride a horse.’
[49] H8.
[50] H8, page 215.
Mr Withers stated he was an Australian Federal Police officer for over 34 years, and that he would ‘not support exploitation of funding to the NDIS.’ Mr Withers stated that CE therapy ‘is not tarot card reading, it is a supportive therapy for children that is out of the reach of most families when it comes to financial assistance. CE is important as it is a therapy that helps, and no one type of therapy suits every family.’[51]
[51] Oral evidence of Mr Withers.
Evidence of Dr Alexander Dowland, General Practitioner (GP)
Dr Dowland’s child attended Ms Petki in 1992 for CE therapy. Dr Dowland wrote a letter in 1994 vouching for Ms Petki’s character in support of another matter for Ms Petki.[52] In his letter, Dr Dowland also outlined the benefits of CE therapy that he had observed for his family. Dr Dowland did not provide oral evidence at the hearing.
[52] EB2.
Dr Dowland wrote another letter of support dated 28 October 2024[53] for Ms Petki’s ‘practice of CE’ and noted that Ms Petki and CE were ‘crucial to the development of our daughter’ and that without Ms Petki, his daughter would have been ‘much worse off physically.’
KBCX’s long-term treating medical experts
[53] EB3.
Evidence of Dr Mark Davoren, paediatrician
Dr Davoren first assessed KBCX in June 2019 after an onset of seizures. At that time, he reported that KBCX had been attending a private orthopaedic surgeon since 2017 to receive six-monthly Botulinum Toxin A (Botox) injections to reduce his limb spasticity and to monitor his hips[54] because his mother had ‘lost faith in the public hospital system.’[55]
[54] H13, page 910.
[55] H13, page 910.
On 6 August 2019, Dr Davoren wrote to KBCX’s GP, Dr McGhie, stating that KBCX required first-line treatment of Epilim or Trilepta for his generalised myoclonic seizure activity, as recommended by Neurologist, Dr Kate Sinclair. However, that KBCX’s mother was ‘keen to pursue a trial of Cannabis Oil before proceeding down the path of Epilim or Trileptal.’[56]
[56] H13, page 912.
On 11 September 2023, Dr Davoren wrote a letter of support for KBCX to receive ongoing NDIS funding for CE therapy with Ms Petki. He stated that CE three times a week has had significant benefits for KBCX’s mobility and physical capabilities and ‘resulted in him being able to avoid having hip surgery’ and has ‘helped his respiratory system and lung function’.[57]
[57] H41.
Evidence of Dr Jeremy Bartlett, orthopaedic surgeon
Dr Bartlett first assessed KBCX in May 2016. On 21 October 2019, Dr Bartlett reported that he had subsequently treated KBCX with several interventions including Botox injections and tendon releases at the hips in May 2017.
Dr Bartlett stated KBCX had attended Ms Petki for CE, and that it was ‘necessary’ as KBCX’s parents had become disenchanted with the progress being made with routine physiotherapy at the Queensland Children’s Hospital. Dr Bartlett had observed a ‘steady improvement’ in KBCX’s function over the ensuing years of regular CE supplied by Ms Petki and, whilst it was unlikely that KBCX will become ambulatory, KBCX had benefitted greatly from his CE.
Dr Bartlett recommended that KBCX continue to attend CE, stating that, in the context of his quite profound impairment, it appeared to represent good value for money and was likely to be beneficial to his experience in life both now and in the future.[58]
[58] H3, page 76.
On 3 August 2020, Dr Bartlett wrote a letter describing KBCX as having a ‘spastic quadriplegic pattern of cerebral palsy with a GMFCS grade 4’.[59]
[59] H13, page 756.
On 4 March 2022, Dr Bartlett recommended CE for KBCX for ‘at least the next 10 years.’ On 28 October 2022, Dr Bartlett wrote that ‘it should be noted that KBCX could make significant improvements and assessment for his conductive educational needs should be made on a yearly basis.’[60]
KBCX Allied Health professionals
[60] H3, page 74.
Evidence of Mr Jayden Robinson-Patch, physiotherapist
Mr Robinson-Patch first reviewed KBCX in July 2021[61] and he prepared a report dated 25 October 2021[62] in which he documented that KBCX’s surgical history included:
·2016 – adductor release of both sides, PEG surgery, right psoas release;
·2017 – wrist tendon transfer and release due to his arm being held in a claw-like shape;
·2020 – thumb tendon release on palm side of hand; and
·2021 – planned left psoas release.
[61] H29, page 1175.
[62] H10, T1J, page 280.
In relation to mobility, Mr Robinson-Patch observed that:
·On 7 July 2021 ‘no observation of mobility occurred… due to KBCX being unwell and because of time constraints’; and
·On 19 October 2022, KBCX could walk with two people assisting in his Kiddie Walker with his Ankle Foot Orthoses (AFO) and Billie shoes in situ. One person was needed to push the walker from behind. The other person helps lift his legs as he steps. He had walked approximately 40 meters in one session.
Mr Robinson-Patch recommended that KBCX trial hydrotherapy led by a physiotherapist to compliment his goal of mobilising 100m in the next plan period.[63]
[63] T1J, page 287.
On 22 February 2022, Mr Robinson-Patch assessed KBCX and on 18 March 2022 provided a ‘physiotherapy plan review report.’ Mr Robinson-Patch recorded that KBCX has walked 40 metres in therapy sessions with three people assisting him. This distance has not been re-created outside of therapy.[64]
[64] H29, page 1175.
Mr Robinson-Patch updated that in 2022, KBCX planned to have a left psoas release ‘as tone is increasing in severity’.[65] Mr Robinson-Patch recommended again that KBCX be given opportunity to trial hydrotherapy in the next plan period.[66]
[65] H29, page 1169.
[66] H29, page 1176.
On 3 March 2023, Mr Robinson-Patch co-authored a combined therapy management plan (the CTMP) with Ms Morisaki, OT, Ms Gwatking, speech pathologist and Ms Petki. Mr Robinson-Patch at this stage included ‘weekly sessions at home and due to funding limitations, intermittent physiotherapy was provided until 2020’. He confirmed that KBCX had accessed physiotherapy services since 2014.[67]
[67] H38, page 1216.
Mr Robinson-Patch stated that KBCX had poor health over the last reporting period, with difficulty engaging in therapy ‘due to fatigue and ongoing interruptions from onsets of illness. Decreased oral motor skill has predisposed KBCX to increased chest infections.’[68]
[68] H3, page 119.
Mr Robinson-Patch recommended face-to-face therapy sessions targeting pain-management and chest health to improve KBCX’s functional capacity. Sessions included passive movements and stretches (pain management), supported sitting and head control exercises (pain management and chest health), use of standing frame and walker (pain-management and chest health) and airway clearance techniques as needed (chest health).
Evidence of Ms Jemma Gwatking, speech pathologist
Ms Gwatking became KBCX’s pathologist from 2022.[69] On 3 March 2023, Ms Gwatking co-signed the CTMP. [70] Ms Gwatking reported that KBCX ‘requires funding for weekly speech therapy sessions including travel to and from [home] to continue ongoing development of Alternative and Augmentative Communication (AAC) skills, social communication and language skills.’[71]
[69] EB3 Ms Gwatking 28 October 2024 letter of support.
[70] H38, page 1214.
[71] EB3.
Ms Gwatking reported that KBCX has complex communication needs, and that he has regressed in his communication output in the last 12 months.[72] In October 2024, Ms Gwatking wrote she has observed that [Ms Petki] is ‘instrumental in the ongoing care of KBCX’s mobility impairment…and improved physical health.’[73]
[72] H3, page 110.
[73] EB3.
Evidence of Ms Julie Masci, Dietician
Ms Masci provided a report dated 22 October 2021 indicating that KBCX was significantly underweight, and his intake had also been negatively affected by recurrent respiratory illness and fevers that leads to him vomiting up his feeds, which in turn reduces his daily caloric intake.
Evidence of Ms Alexandra Trickey, occupational therapist
On 25 October 2021, Ms Trickey prepared an ‘Occupational therapy functional capacity report’ and administered a World Health Organisation Disability Assessment Schedule (WHODAS) assessment which described KBCX’s disabilities as being rated at 3.91/4, having ‘severe to extreme impact’ on his functional capacity across all domains.[74]
[74] H10, T1I, page 262.

KBCX’s Paediatric Care and Needs Scale (PCANS) measured that he is dependent on a very high level of physical assistance and supervision across all domains. KBCX’s ABI results in significant physical and cognitive deficits that significantly limit KBCX’s capacity to participate in all aspects of daily life.[75] Ms Trickey reported that KBCX was unable to transfer into the wheelchair at the time of assessment due to being unwell, and that in order to continue to address the physical and neurological impacts of KBCX’s disability, he requires intensive physiotherapy intervention.[76]
[75] H10, T1I, pages 262-263.
[76] H10, T1I, page 266.
On 3 March 2022, Ms Trickey again administered the WHODAS and KBCX’s score was 3.91/4, indicating a level of disability between severe and extreme.[77] KBCX’s PCANS was rated as requiring a very high level of physical assistance and supervision across all domains. Ms Trickey reported that KBCX was unable to transfer into a wheelchair and that ‘in order to continue to address the physical and neurological impacts of KBCX’s disability, he requires intensive physiotherapy intervention…and will also require ongoing occupational therapy input to assess his needs for AT...’[78]
[77] H26, page 1137.
[78] H26, page 1141.
Ms Trickey recommended for KBCX that he requires:[79]
·Intensive physiotherapy intervention;
·Ongoing occupational therapy input to assess his needs for assistive technology as he ages and grows;
·Ongoing speech pathology intervention; and
·Ongoing funding to support his regular participation in CE therapy.
[79] H10, pages 275-276.
On 3 March 2022, Ms Trickey documented that between 14 September 2021 to 3 March 2022, KBCX’s functional status in mobility, reported by M, was that at home he occasionally walked a very short distance using his Kiddie walker with soft AFO, and required 1:1 physical/stand-by assistance to do this.[80]
[80] H26, pages 1140-1141.
Evidence of Ms Emma Justins, occupational therapist and Associate Hand Therapist Australia (AHTA)
Ms Justins provided KBCX with an ‘NDIS Prosthetics and Orthotics Assistive technology Assessment report’ dated 21 October 2021. Ms Justins recommended ongoing six-monthly casting and splinting for KBCX to ‘improve passive movement through reduced contractures and reduction in tone resulting in improved joint comfort and health for the long term, and minimising more invasive surgical interventions in the future.’[81]
[81] T1G, H10, page 249.
KBCX academic materials regarding CE
On 5 March 2023,[82] KBCX filed material directing the Tribunal to ‘links on the Cerebral Palsy Alliance Australia’ website. KBCX also relied on Ms Petki’s quote of a 2004 study regarding the ‘benefit of intensive therapy to have a positive effect on gross motor function measure’ and ‘another 2001 study’.[83]
[82] H13.
[83] H13, page 822. H3, page 90.
KBCX filed an ‘Applicant’s Addendum G Conductive Education Establishments Website Links’.[84] Mr P also contended that there is material from other countries in support of the benefits of CE for people living with cerebral palsy.[85]
[84] H8, page 211.
[85] Oral evidence of Mr P.
Evidence of Emeritus Professor Stewart Einfeld, psychiatrist
Professor Einfeld is a child and adolescent psychiatrist. He is also the former Chair of Mental Health in the Faculty of Health Sciences at the University of Sydney and former Director of Postgraduate Research for the disciplines of Behavioural Sciences, Speech Pathology, Occupational Therapy and Rehabilitation Counselling.
Professor Einfeld described research and clinical interest in two areas: the first area includes both developmental disorders of children and young people and extensive experience in the scientific evaluation of therapies for children with developmental disabilities; the second area is in academia in conducting, authoring and evaluating scientific research.
Professor Einfeld is highly qualified, as evidenced by having over 200 scientific works published in high quality journals and also over 25 years of continuous research grant funding from the National Health and Medical Research Council as an active researcher ‘which is unusually successful.’[86]
[86] Oral evidence of Professor Einfeld and H14, page 946.
Regarding the scientific evaluation of therapies for children with developmental disabilities, Professor Einfeld regarded himself as an expert in the cognitive aspects of CP, however qualified that he is not an expert in designing physical rehabilitation for children with CP. Notwithstanding this concession, Professor Einfeld maintained that the principles of establishing what is good scientific evidence for interventions for developmental disabilities are the same across the various conditions which cause developmental disabilities, including autism, intellectual disability, CP and other disorders.
Professor Einfeld prepared two reports providing expert opinion regarding KBCX’s requested supports: a report dated 17 January 2023 (the 2023 report),[87] based on filed paperwork, and a report dated 18 March 2024 (the 2024 report)[88] which was prepared after an audio-visual meeting with KBCX’s parents, Mr P, and an unnamed carer on 30 October 2023. He also gave oral evidence at the hearing.
[87] H14, page 944.
[88] H15, page 972.
Professor Einfeld focussed on two aspects to give his opinion as to whether or not the CE provided to KBCX was effective and beneficial. Firstly, the evidence of the scientific literature about the effectiveness of CE treatment per se. Secondly, the evidence from assessing the actual CE treatment received by KBCX compared to his recommendations as ‘current good practice’.
Professor Einfeld’s evidence on scientific literature regarding CE therapy per se
Professor Einfeld stated his opinion was informed by assessing over 20 reports and two literature reviews: the Darrah review and the Novak review. He then contrasted these with internet materials about ‘success stories on websites of people undertaking CE therapy.’
Professor Einfeld emphasised the Darrah review[89] as the most important manuscript describing research studies of CE today. He referred to the significance of systematic reviews and high-quality studies, and contrasted the individualised studies that support CE. The most reasonable conclusion, he stated, was that while CE contributed to some improvements, there was no evidence that it did so more than traditional therapies including physiotherapy and special education.
[89] Systematic Review (Darrah et al, 2004) approved by the American Academy for Cerebral Palsy and Developmental Medicine.
Professor Einfeld outlined his opinion around the Novak systematic review[90] from 2013 that reviewed 166 research articles of ‘interventions for children with CP’ and opined that:
·This is an ‘authoritative article’ because the author, Iona Novak, is one of Australia’s leading CP researchers and at the time of publication, she was the head of the CP Alliance Research Institute and because the journal in which it was published, Developmental Medicine and Child Neurology has a ‘long track record of rigorous peer review and is highly regarded’;[91]
·It is a systematic review carried out ‘according to the protocol of the Cochrane Collaboration and Preferred Reporting Items for Systematic Review and Meta-Analyses (PRISMA) statements. These are important scientific conventions which ensure that literature is reviewed in an unbiased way.’ Each of the interventions for CP was rated according to the Grading of Recommendations, Assessment, Development and Evaluation (GRADE) criteria, the Oxford Evidence Level and a ‘traffic light’ measure. Interventions were rated at four levels. The GRADE rating showed a low quality of evidence and the strength of recommendation for use of CE was ‘weak minus’, the lowest strength of recommendation. Weak minus is equivalent to ‘probably do not do it’ on the traffic light measure;
·CE scored a ‘weak minus’ for improvements in motor function. As an early intervention tool, it lacked evidence of effectiveness or improving tone or preventing contractors and alignment;
·CE scored a ‘weak minus’ for self-care and function;
·CE scores just above the ‘probably do it’ line category for parent outcomes, which is the outcome at least consistent with the feelings of KBCX’s family; and
·There is no good evidence that CE is beneficial for a child with CP.
[90] H15, page 984.
[91] H15, page 987.
Professor Einfeld’s evidence regarding papers in support of CE is summarised as follows:
·The study of Tsorlakis et al., 2004 examined the effect of intensity of treatment in children with CP. However, the study did not employ CE so cannot be used as evidence for it and the subjects in the study were rated on the GMFCS scale at levels ‘I – III’, whereas KBCX is rated at ‘level V’, which means that a study for children with less severe forms of CP cannot be generalised to KBCX’s case;
·One manuscript cited by Conductive Education Queensland titled ‘Conductive Education: Thirty Years On’ by Emerson and Holroyd, 2020 is ‘not a manuscript reporting any original research on CE’. It argued that CE employs techniques which have some evidence to support them, though these techniques are not exclusive to CE. The manuscript of O’Shea PT, Jones M et al (2020) ‘provided no evidentiary support for CE especially in the current case’;[92]
·Other manuscripts did not detail the subjects’ reported diagnoses or severity. One manuscript cited two studies to support CE which were both: poster presentations at conferences, and not published in any peer reviewed journal;[93] and
·The original manuscripts were ‘not available to me via Google Scholar despite the link given.’
[92] H14, page 954.
[93] ‘Examining Conductive Education: Linking Science Theory and Intervention, O’Shea et al., 2020. The study of O’Shea and Pidcoe (2013) was an unpublished conference presentation.
Professor Einfeld opined that ‘success stories about CE’ on websites convey hope, inspiration and identification to families who see themselves in the same position as the families that are written about in those stories. However, these ‘success stories’ are not helpful as a source of evidence to answer the question of the efficacy of a treatment.[94]
[94] Oral evidence of Professor Einfeld.
Professor Einfeld stated that a website list as a source of information is not an objective, independent source that explains how the stories were selected by the website, nor does it indicate how representative they are of all the people who experience the treatment. There is no agreed upon method to evaluate and measure the effectiveness. Therefore, the minimum requirements to measure effectiveness are not met.[95]
[95] H14, page 971.
Professor Einfeld concluded that there is good evidence that CE is not better than conventional alternatives. He stated that CE is a treatment approach with very limited research and weak evidence, yet it may be useful for some children with CP. He referred to the absence of clear documentation that CE is substantially more effective than its alternatives, or that any intensity of CE is more effective than any other.[96]
Professor Einfeld’s evidence on the effectiveness of CE therapy for KBCX’s impairments and ‘current good practice’
[96] H14, page s 954-955.
Professor Einfeld demarcated two broad goals of any therapy or intervention for KBCX living with his current impairments. Firstly, enhancement of independent function. Secondly, prevention of complications of CP which could cause a deterioration in health status. Professor Einfeld opined that:
·An objective of capacity building supports is that they are intended to be time limited and targeted at addressing specific functional goals;
·None of KBCX’s evidence demonstrated that CE will improve KBCX’s independent function ‘despite over 6 years of intensive therapy with CE’;[97] and
·He agreed with KBCX’s goals of avoiding contractures and respiratory disease. The aim of reducing time in sedentary positions and encouraging the use of muscle tone and strength as major movement was described as ‘useful in reducing risks and the CE program has these features so it is likely to be beneficial in avoiding further deterioration or complications. However, this is also the goal of physiotherapy.’[98]
[97] H15, page 993.
[98] Oral evidence of Professor Einfeld.
In regard to Ms Petki’s reports, Professor Einfeld observed that there was a lack of records or observations of the progress that KBCX has made, and of any evidence that CE was achieving any unique benefit for KBCX.[99] Professor Einfeld considered that KBCX would not experience loss of function without CE.
[99] H15, page 986.
Professor Einfeld opined that there is limited, if any objective evidence of the benefits derived from CE as opposed to the other therapies in KBCX’s plan including occupational therapy, physiotherapy, and speech therapy. Moreover, Professor Einfeld outlined that the provision of physiotherapy is a more effective support than CE therapy because the ‘benefits are more quantifiable.’ Professor Einfeld referred to physiotherapy and OT assessments and the lack of improved scores for KBCX on the motor measure scale. The alternative, he stated, was that the continuous improvements have been so subtle that they do not register on such a measure, in which case their functional value for KBCX’s independence would be negligible.
Professor Einfeld noted that CE does provide the benefit of the avoidance of contractures, however explained that this can be achieved by other means. Professor Einfeld consulted with a specialist Rehabilitation Paediatrician who practices in the CP Clinic of the Sydney Childrens Hospital Network and was advised they usually recommend splints for several hours per day for the purpose of preventing contractures. These only need to be applied and removed and do not need hours of therapist attendance.[100]
[100] H15, page 985.
Professor Einfeld pointed to several issues regarding the efficacy of Ms Petki’s CE therapy with KBCX. His observations focussed on Ms Petki relying on her own opinion and notes made non-contemporaneously, and that there was not any valid standardised assessment method to measure KBCX’s progress in a validated way.
Professor Einfeld stated that there was no evidence that Ms Petki’s CE therapy had provided any cognition, learning and socialisation benefits to KBCX or benefit beyond physical rehabilitation.[101] Further, that the speech, occupational and physiotherapists who have been involved in KBCX’s care are all familiar with the relevant validated measures used in their specialities, as this is a necessary component of their training.
[101] Oral evidence of Professor Einfeld.
Professor Einfeld did not recommend CE for KBCX. In oral evidence, Professor Einfeld reiterated he had considered all evidence submitted by KBCX including additional video materials filed and he maintained his view that CE is not effective and beneficial with regard to current good practice. His reasons were as follows:[102]
·Firstly, that the CTMP it is not a detailed report or assessment of KBCX’s condition, because ‘only the physiotherapy section of the CTMP had a mechanical assessment tool that focussed on preventing chest infections and pain for KBCX’;[103]
·Secondly, Ms Petki is not a health practitioner registered with AHPRA, there is no profession of ‘neuro rehabilitation consultant’ listed with AHPRA, and Ms Petki’s qualifications are not registered in Australia. This is not consistent with ‘current good practice’;
·Lastly, in regard to current recommendations for CP, there is no mention of recommendations for CE therapy from the following organisations:[104]
oThe clinical practice guidelines of the Melbourne Royal Children’s Hospital;
oThe Sydney Children’s Hospital Cerebral Palsy Clinic;
oThe Queensland Children’s Hospital;
oThe Cerebral Palsy Alliance. This is the largest provider of services to support families with cerebral palsy in Australia. The website lists CE as ‘one type of therapy used for CP, but the description of the therapy does not include a recommendation.’
[102] H15, 2024 report, page 975. Oral evidence of Professor Einfeld.
[103] Oral evidence of Professor Einfeld.
[104] H14, page 956.
Professor Einfeld recommended that KBCX engage in a delegated model of care with a physiotherapy programme, including receiving support from a therapy assistant to provide the hands-on aspect of the therapy.[105] Professor Einfeld supported Ms Petki as being a suitable person to act in the therapy assistant role to provide emotional support to KBCX’s family, however maintained that KBCX should continue engagement with allied health practitioners including physiotherapy and occupational therapy.
[105] Oral evidence of Professor Einfeld.
Ms Catherine Cummings, occupational therapist
Ms Cummings is an occupational therapist with over 20 years of experience in providing occupational therapy assessment and intervention services to people in both inpatient and community-based settings.
On 11 March 2024, Ms Cummings attended KBCX’s home and assessed his communication, social interaction, voluntary movements, and head control. She produced a report of 9 April 2024 on the impact of CE on KBCX’s functional capacity, which outlined:[106]
·KBCX’s function is classified as GMFCS level V and MACS level V;[107]
·KBCX’s CE programme is not a practice which meets current guidelines for the treatment of children with cerebral palsy. Based on the available research and practise guidelines continued CE for KBCX is not supported;
·Ms Petki’s approach was not evidence-based or in line with current best practice.[108] Ms Cummings stated, ‘the weakness of CE is that there’s not much evidence that improvement in function is seen with the CE approach from research and an evidence-based point of view’;[109]
·There was limited evidence that KBCX’s functional capacity has improved as a direct result of CE, which he has engaged in for over seven years;
·The intensity of the CE programme has likely provided maintenance of some of KBCX’s abilities and avoidance of hip surgery in conjunction with other therapies and treatments including hip surveillance, Botox, contracture release surgery, and physiotherapy;
·CE would not harm KBCX but it did not present as the most effective therapeutic approach to enable him to pursue his goals, objectives and aspirations; and
·There is no evidence that CE can enhance KBCX’s specialised communication techniques better than a speech pathologist.
[106] H16, pages 1034-1035. Oral evidence of Ms Cummings.
[107] H16, page 1014.
[108] Ms Cummings at Addendum C outlines information on best practice in treatment for children with CP.
[109] H16, pages 1045-1046.
Ms Cummings recommended that KBCX receive the following weekly supports to look after his joints, maintain his strength, and reduce the risk of spasticity and high tone:[110]
[110] Oral evidence of Ms Cummings.
·A high intensity delegated model would provide the same benefit at a lower cost which would represent value for money and maintain intensity at 10 hours per week broken down as a weekly total cost of $1031.25:
o2 hours of clinical intervention by an allied health practitioner such as a physiotherapist each week ($193.99 per hour for a weekly total of $387.98);
o7 hours of allied health therapy assistant each week ($56.16 per hour for a weekly total of $393.12);
o1 hour a week of clinical training by an allied health practitioner to an allied health therapy assistant or support worker or family member ($193.99 + $56.16 per hour for a weekly total of $250.15);
·Speech pathology;
·Occupational therapy;
·Continue engagement in school activities; and
·24-hour support for all self-care tasks.

Ms Cummings opined that KBCX has shown maintenance of overall functional capacity in the last 3 years based on physiotherapy and OT assessment, and that Ms Petki’s observations have not translated into improvements in function and reduced care needs. Ms Cummings supported a ‘whole of task approach’ where KBCX practices the components of therapy in day-to-day activities.
CONTENTIONS: REASONABLE AND NECESSARY SUPPORTS
KBCX’s contentions
KBCX contends that CE is an effective, evidence based therapeutic support and that this ‘intensive CE therapy benefits him’[111] as it:
[111] Closing submissions of Mr P.
·Has improved his musculoskeletal condition and mental health as demonstrated by ‘progress records of extensive date stamped videos provided measuring visual progress comparable with literary reports’;
·Maintains his function as he makes ‘slow incremental gains over long periods’;
·Develops his function so he can ‘reach his goals’;
·‘Enables him to gain greater control over his movements and cognitive skills because it integrates physical, cognitive and social training into a single approach’;
·Prevents the deterioration of his function so he may avoid respiratory illness and ‘potentially avoid further surgery which is traumatic for him and the family’;[112]
·‘Empowers him to take an active role in learning and problem-solving, fostering a sense of ownership and independence beyond the physical realm’;
·Helps him achieve his goal of relying less on informal supports and be better equipped to engage with peers and participate in group activities...and to integrate motor, cognitive and social skills;
·Addresses his overall development and not just his physical impairments as supported by the letters of Dr Bartlett, Dr Davoren and Dr Wallace;[113]
·Relies on ‘Ms Petki’s 32 years of practical experience’;[114] and
·Is recommended by health practitioners in the CTMP authored by Ms Morisaki.
[112] H2, page 19, 26.
[113] Closing submissions of Mr P. H8, H20, H22, H26, H27, H28, H29, H30, H36, H38, H40, H41.
[114] Closing submissions of Mr P. H2, page 24.
KBCX contends that CE therapy benefits the scheme because it:
·‘Could lead to long-term cost savings for the NDIS…[and] may prevent the need for more intensive 2:1 supports in the future instead of the current 1:1 ratio of support, reducing the overall financial burden on the NDIS’; and
·‘Will reduce [his] reliance on informal and formal supports over time.’
KBCX contends that his request is for CE therapy to be ‘used flexibly and interchangeably with Physiotherapy as part of the recommendations in the CTMP’ because:
There has been no evidence presented throughout or witnessed by the Participants [sic] families life experiences, that Physiotherapy has been effective or beneficial to the Participant long term.[115]
While physiotherapy treats KBCX’s motor difficulties, it does not address his cognitive or behavioral needs as comprehensively as CE…The two supports complement each other but serve distinct roles in KBCX’s care.[116]
[115] H6, page 171.
[116] H6, page 171.
KBCX contends that Professor Einfeld’s ‘area of expertise falls outside of the subject issue in question’ and should be afforded ‘very little weight’. Similarly, that ‘Ms Cummings’ evidence should be entirely disqualified’.[117]
[117] Closing submissions of Mr P.
KBCX stated there were two cases[118] that ‘support CE therapy’ however did not elaborate further. In closing submissions KBCX referred to TKCW and NDIA [2014] AATA 501[119] (TKCW) as supporting the premise that ‘a support is effective and beneficial if it is recognised by a sufficient number of practitioners.’ KBCX also cited McCutcheon and NDIA [2015] AATA 624[120] (McCutcheon) and stated that it supported ‘good practice as being linked to the individual circumstances of the participant.’[121]
[118] RQWY and National Disability Insurance Agency [2023] AATA 56 at [132-142] and Burchell and National Disability Insurance Agency [2019] AATA 1256.
[119] TKCW and NDIA [2014] AATA 501.
[120] McCutcheon and NDIA [2015] AATA 624.
[121] Closing submissions of Mr P.
KBCX also brought to the Tribunal’s attention the decision of Young and NDIA [2021] AATA 1555.[122] KBCX stated his opinion that ‘here the Tribunal was critical of Professor Einfeld’s investigative process because the Professor failed to investigate appropriately and did not consider the lived experience of the participant and the lived experience is paramount.’[123]
[122] Young and NDIA [2021] AATA 1555.
[123] Closing submissions of Mr P.
Agency contentions
The Agency contends that the funding of CE therapy:
·Does not satisfy section 34(1)(d) of the NDIS Act and relied on Professor Einfeld’s and Ms Cummings’ evidence. In particular, the Agency outlined that Dr Davoren was the only treating doctor who wrote about an evidence base for CE,[124] yet ‘he did not reference any articles to support this’;[125]
·Does not satisfy supports rule 3.2(a). Both Professor Einfeld’s and Ms Cummings’ reports indicated there is no published and refereed literature nor any consensus of expert opinion that CE is evidence based and current good practice;
·Should consider supports rule 3.2(b) in that the lived experience of M, Mr DP and others who have written in support of Ms Petki should be considered, and there has been some benefit demonstrated for KBCX and this is ‘in no way disregarded by the Agency’;[126]
·Should consider supports rule 3.2(c) in that KBCX’s family’s lived experience and Ms Petki’s evidence is relevant to what the Agency has been able to learn from delivery of the scheme and should be given some weight. However, the lay witness evidence for example, of Dr Dowland, with a daughter who had experienced Ms Petki’s treatment, is not sufficient to conclude that CE therapy is an ‘evidence-based support’; and
·Is unable to be classified as a ‘therapeutic support’ as it is not ‘evidence-based’ because it is more appropriately categorised as an ‘alternative and complementary medicine’ as indicated in Item 9(k) of Schedule 2 of the NDIS Supports Transitional Rules 2024.[127]
[124] H10, T1C, page 238.
[125] Closing submissions of the Agency.
[126] Closing submissions of the Agency.
[127] Closing submissions of the Agency and H9.
The Agency contends that CE is not an effective and beneficial support for KBCX, and it is not an evidence-based therapeutic support,[128] it is ‘an alternative or complementary therapy’ because Ms Petki:[129]
·Is not a registered allied health practitioner with AHPRA;
·Is not a member of any ‘practitioner organisation’ through which she may obtain registration in Australia;[130]
·May provide therapy but she has not demonstrated she provides adequate and contemporaneous records of the rendering of the therapy because Ms Petki’s records:
omay not be sufficiently comprehensive to enable another practitioner to effectively undertake ongoing care in reliance on that record;
omake note of ‘assessments from 2019’ yet she is reported to have worked with KBCX since February 2016; and
omay not provide measurable assessment as to any improvements that KBCX was said to have made since 2016, demonstrating that this support does not align with current good practice.
[128] H9.
[129] H9.
[130] For example, under the Health Insurance Act and the Medicare system or under the Health Insurance Professional Services Review Regulations.
The Agency submitted that TKCW emphasised that ‘for a support to be or be likely to be effective and beneficial then it is to have regard to current good practice.’[131]
[131] TKCW at [74]-[76].
Regarding the support of physiotherapy, the Agency contends that it should be provided as a support as recommended by Ms Cummings’ delegated model, but the support should be provided as a stated support so that it cannot be used flexibly because:
·The CTMP is not reflective of what is actually intended if CE therapy support is continued; and
·KBCX indicated ‘physiotherapy has not been effective and beneficial long term.’[132]
[132] H6, page 171.
CONSIDERATION
Whether or not CE therapy will be, or is likely to be, effective and beneficial for KBCX, having regard to current good practice
The evidence was undisputed that KBCX suffered permanent, catastrophic injuries as an infant. The sequelae of these injuries mean KBCX lives with permanent, complex and severe impairments from his disabilities[133] and that he requires numerous supports around the clock. Over the last 11 years, KBCX’s parents and family have worked commendably to care for him, whilst also raising two younger children. It was apparent to the Tribunal that KBCX’s parents and family uphold KBCX’s best interests.
[133] H19, page 1090. Since 2013 KBCX suffered a cardiorespiratory arrest post diagnostic catheter and interventional aortic balloon vavuloplasty for severe aortic valve stenosis with a dysplastic trileaflet aortic valve and left ventricular hypertrophy.
The Tribunal recognises the conscientious and large amount of work that Mr P demonstrated in preparing and representing his grandson in these proceedings. The Tribunal considered all the filed written material and video images.[134]
[134] On day two of the hearing at Mr P’s request the Tribunal played a 12-minute audio-visual compilation of KBCX working with Ms Petki.
The Tribunal accepts the oral and written lived experience evidence from M, Mr DP, Mr Withers and several other parents of children living with disabilities[135] and their respective views attesting to the benefits their children received from CE Therapy with Ms Petki.
[135] EB2, EB3.
The Tribunal accepts that M prioritises and differentiates CE therapy from physiotherapy by preferring CE therapy for KBCX because M perceives CE as a ‘more active therapy’. CE is highly valued by KBCX’s family. M may drive over three hours each week to transport KBCX to and from Ms Petki’s address. Additionally, M prioritises the scheduling of CE appointments and KBCX has not received physiotherapy support in ‘around a year.’
With regard to supports rule 3.2(b) and (c), the Tribunal acknowledges the important evidence of the first-hand knowledge, experience and understanding of people who have spent many years living with KBCX or with children living with impairments similar to those of KBCX and their experience around ongoing therapy. The lay witness evidence was relevant, and it was considered. The trust placed in Ms Petki by KBCX’s family and other families was evident and the benefit that the families reported from Ms Petki’s therapy is acknowledged and given due regard and weight. However, when this lived experience evidence is at odds with probative evidence it may be given less weight.
The ‘guideline on persons giving expert and opinion evidence’, indicates that the Tribunal:[136]
…is not bound by the rules of evidence and may take into account any matter that is relevant to the issues to be determined. In particular, the Tribunal is not bound by the rules relating to opinion evidence and may have regard to material that would not be admissible in a court applying the rules of evidence. The Tribunal must determine the weight that should be given to any evidence that is before it.
(Tribunal emphasis)
[136] ART Guideline on persons giving expert and opinion evidence at [2].
The Tribunal accepts the written evidence of KBCX’s ‘long-term treating practitioners’ that these doctors provide an ongoing supportive medical relationship with KBCX and that their comments advocated for CE to continue for KBCX. However, the Tribunal affords this evidence limited weight as KBCX’s ‘letters from doctors are advocacy letters by their own description, rather than objective clinical reports with substantiated evidence.’[137] These practitioners provided untested written evidence and none of these practitioners provided further evidence to disagree with Professor Einfeld’s or Ms Cummings’ respective opinions. There was no probative evidence to support Dr Bartlett’s evidence[138] that the ongoing CE therapy KBCX had received had ‘assisted him in avoiding hip surgery and that this CE is assisting in his development of good bone stock and posture.’
[137] Oral evidence of Professor Einfeld. H15, page 998.
[138] H15, page 997.
Similarly, the Tribunal accepts the CTMP, but affords it limited weight as it also was untested and the registered allied health practitioners responsible for this document did not give evidence at the hearing nor offer evidence to contradict Professor Einfeld’s or Ms Cummings’ respective opinions. The Tribunal cannot be satisfied ‘there was a collaborative approach’ which includes CE therapy, as was relied upon in McCutcheon.[139]
[139] McCutcheon and NDIA 2015 at [82].
The Tribunal was not assisted by the ‘academic materials’ that KBCX relied upon and gives limited weight to KBCX’s list of website links regarding CE in other jurisdictions because the evidence on these links was also not tested at the hearing. KBCX’s referral to Conductive Education Queensland is not a document or a piece of published or refereed literature and it is not evidence for a consensus of expert opinion. It is an advocacy piece for CE. However, the Tribunal accepts that physical activity is beneficial for KBCX, and this was outlined by Ms Cummings’ evidence of the recognition that some of Ms Petki’s therapy is movement based and is therefore helpful to KBCX.[140]
[140] H59, page 1400.
The Tribunal accepts that Ms Petki received a tertiary qualification from the Hungarian ‘Peto Andras’ Motor Disabled Teachers Training College and Institute in 1991 as a ‘qualified conductor (motor disabled) primary school teacher’[141] and that she has over 32 years of experience working with children with disability with similar impairments to KBCX.
[141] H45, page 1253.
The evidence indicates that since February 2016, over 8.5 years, Ms Petki has had: a good rapport and relationship of trust with KBCX and his family; a strong desire to continue to work with and help KBCX, and his family; and a paid role in attending various appointments and guiding decision-making regarding the supports pursued by KBCX.
Ms Petki’s oral evidence was that her ‘video reports’ demonstrated that KBCX’s function had been maintained and improved by CE therapy. Notwithstanding this, there was inadequate evidence before the Tribunal to demonstrate that CE therapy was an evidence-based support even though it may bring benefit to KBCX.
‘Current good practice’ is not defined in section 34(1)(d) of the NDIS Act.[142] The Tribunal gives greater weight to the expert and opinion evidence of both Professor Einfeld and Ms Cummings with regard to evidence-based factors to consider when contemplating the meaning of ‘current good practice’ and refers to VXGN and National Disability Insurance Agency [2023] AATA 2781 which emphasised the importance of the:
…recommendation that practitioners maintain their knowledge and skills through lifelong continuing professional education. This requires ongoing review and monitoring of their practices and a strong culture of professional enquiry.[143]
(Tribunal emphasis)
[142] TKCW and NDIA 2014 at [74].
[143] VXGN and National Disability Insurance Agency [2023] AATA 2781 at [136].
The Tribunal is not satisfied that CE therapy is effective and beneficial for KBCX having regard to current good practice as noted in support rule 3.3 for the following reasons:
·Firstly, there is no evidence that Ms Petki adheres to a ‘strong culture of professional enquiry’. Ms Petki did not provide evidence that she:
oHolds registration as a health practitioner with AHPRA;
oHas a specified ‘scope of practice’ in CE therapy that is regulated and monitored under a regulatory governance oversight body;
oHas reporting requirements regarding ongoing professional education for her practice of CE therapy;
oMaintains public indemnity insurance for her practice of CE therapy.
·Secondly, there are major gaps in Ms Petki’s record keeping with no contemporaneous and adequate documentation provided regarding the CE therapy that KBCX has received over the last 8 years. Ms Petki’s written notes would likely not permit another practitioner to provide ongoing therapy to KBCX. Some notes were reportedly written in the Hungarian language and other notes were presented as ‘categorical opinions or descriptions of progress without any recognised qualification and with no repeat assessments or accepted and standardised methods of measurement.’[144]
·Thirdly, even after considering Ms Petki’s ‘record of treatment with video records’, I cannot be satisfied it is current good practice because of ‘realistic concerns with video evidence that is not corroborated by other allied health practitioners.’[145] In addition, I cannot be satisfied CE alone has maintained and improved KBCX’s function. I refer to KBCX attending Ms Justins and her recommendations that casting and splinting also had a role in function maintenance, improvement and minimising ‘more invasive surgical interventions in the future’.[146]
·Fourthly, there is no evidence to demonstrate that KBCX’s impairments have improved in over 8 years of CE therapy with Ms Petki or that KBCX is less reliant on other supports.[147] A conservative calculation of KBCX’s CE therapy hours, from February 2016 until October 2024, may approximately be calculated as up to:
o9 hours a week multiplied by 35 weeks of a year which totals 315 hours;
o315 hours multiplied by 8 years which totals 2,520 hours of CE therapy.
[144] Oral evidence of Professor Einfeld. Professor Einfeld, H14, page 948.
[145] Mr Robinson-Patch’s February 2022 evidence about KBCX mobilisation function was different to the ‘video records.’ Oral evidence of Professor Einfeld and closing submissions of the Agency.
[146] T1G, H10, page 249. H15, page 985.
[147] H13.
The Tribunal observes there was no probative evidence provided to demonstrate that CE therapy may be defined as a ‘therapeutic support’ with respect to Item 34 of Schedule 1 of the NDIS Supports Transitional Rules. Furthermore, the Tribunal notes that Item 9(k) of Schedule 2 of the NDIS Supports Transitional Rules specifies that ‘alternative or complementary medicine’ are not NDIS supports.
The Tribunal notes that several reports evidence that despite receiving over 8 years of CE therapy, KBCX’s function has not been maintained or improved[148] as contended:
·Firstly, there is no report to indicate an improvement in KBCX’s GMFCS scale, the materials document ratings at level IV and predominately now at level V;[149]
·Secondly, in 2022, KBCX’s tone had ‘increased in severity’ and his ‘mobility had not improved.’[150] A year later in 2023, KBCX was reported to have ‘increased fatigue, infections and poor health.’[151] KBCX reportedly had pneumonia in October 2023 and has unfortunately suffered other infections;[152]
·Thirdly, KBCX, in 2023, was reported to have ‘regressed in his communication’;[153]
·Fourthly, KBCX’s WHODAS ratings demonstrated no improvement in function.[154]
[148] H14, page 958.
[149] H15, page 997. H68, H16, H19.
[150] H29.
[151] Physiotherapist Mr Robinson-Patch, H38.
[152] H17, page 1051.
[153] H3.
[154] OT Ms Trickey, T1I October 2021, H 26 March 2022.
The Tribunal accepts that Professor Einfeld has over 4 decades of experience as a medical practitioner with a demonstrated research and clinical interest in undertaking:
·Clinical work with children with developmental disorders and that CP may be categorised as a ‘subset of the broader field of developmental disorders’;[155]
·Scientific evaluation of therapy for children with developmental disabilities;
·Academic work alongside allied health practitioners such as speech pathologists, OTs and rehabilitation counsellors at Sydney University to conduct, author and evaluate other scientific research around developmental disorders.
[155] Oral evidence of Professor Einfeld. H14, H 15.

Therefore, the Tribunal accepts Professor Einfeld’s expert and opinion evidence regarding:
·The scientific literature around the efficacy of CE therapy per se, and with reference to supports rule 3.2(a) that ‘CE is not an effective intervention[156] and that ‘independent systematic reviews have concluded that CE either should not be funded or should be subject to a recommendation of “probably don’t do it”, the second lowest rating’;[157] and
·The efficacy of CE therapy that KBCX has received over 8 years from Ms Petki that there is ‘little compelling evidence to support it is effective and beneficial for KBCX’.[158] I note that Ms Petki was offered an opportunity to speak with Professor Einfeld and she was unable to do so at the time due to her other commitments.[159]
[156] Oral evidence of Professor Einfeld.
[157] H15, page 1000.
[158] Oral evidence of Professor Einfeld.
[159] Oral evidence of M and Ms Petki.
The Tribunal accepts the evidence that Ms Cummings:
·Has over 20 years of experience as an occupational therapist;
·Before providing her opinion, she considered KBCX’s evidence;
·Demonstrated a detailed understanding of functional capacity assessments; and
·Concluded that CE is not an evidence-based therapy.
There is insufficient evidence to be positively satisfied that the support of CE will be effective and beneficial for KBCX having regard to current good practice pursuant to section 34(1)(d) of the NDIS Act and Supports Rules 3.2 and 3.3.[160] As the remaining criteria in section 34(1) of the NDIS Act are cumulative, the Tribunal will not address them further.
[160] See also Item 34 of Schedule 1 and Item 9(k) of Schedule 2 of the NDIS Supports Transitional Rules.
In respect of physiotherapy as a support, there were no contentions that it should be removed. KBCX contended it should be used flexibly. The Agency contended it should be a stated support. On the evidence, having regard to ‘current good practice’, the provision of physiotherapy is likely to be reasonable and necessary as an evidence-based treatment given KBCX’s impairments and it should continue to be funded as a ‘stated support’.
The Tribunal agrees with the recommendations given by Ms Cummings[161] and Professor Einfeld[162] that physiotherapy should be specified as part of a delegated allied health model and that it is vital that KBCX continues to receive funding for the remaining supports that were not in contention. The programme recommended for KBCX by Ms Cummings is considered to be effective and beneficial taking into account current good practice.[163]
[161] H4 and H7.
[162] Oral evidence of Professor Einfeld.
[163] Oral evidence of Ms Cummings. Closing submissions of Mr P and the Agency.
As these issues were not in contention, the Tribunal considers it appropriate that KBCX’s plan management continue as stated in the existing plan and that the plan duration be for twelve months.
CONCLUSION
For the reasons outlined above, the Tribunal sets aside the decision under review and remits this matter to the Agency for reconsideration in accordance with a direction that within 28 days of the date of this decision, the Agency facilitate the approval of a new SOPS for KBCX, noting the following:
·Conductive Education Therapy does not meet the requirements of s 34(1)(d) of the NDIS Act, so it is not to be specified as a support in KBCX’s SOPS;
·Physiotherapy funding meets the requirements in s 34(1) of the NDIS Act and it is to be specified in KBCX’s SOPS as a ‘stated support’ so that the funding cannot be used flexibly;
·That all other supports in KBCX’s existing SOPS are to be replicated pro-rata from the date of this decision until the reassessment date;
·The management of funding for supports in KBCX’s existing SOPS be replicated;
·The date by which the Agency must reassess KBCX’s plan is to be twelve (12) months after the date of the approval of the new SOPS for KBCX in accordance with this direction.

1.

2.       I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Member S Smith.

........................[SGD]..........................
Dated: 19 December 2024

Dates of hearing:  29, 30, 31 October 2024

Applicant:  KBCX, represented by his grandfather, Mr P.

Solicitor for the Respondent:     Ms Alice Dowell

Counsel for the Respondent:     Mr Ben Dube

Weekday	Weekend	Total cost
Support worker	· 1:1 support, 2.5 hours on weekday mornings, and sometimes an extra hour in the morning whilst M assists KBCX’s two siblings; · 1:1 support, 2 hours on weekday evenings.	· One support worker for (on average) 5 hours each Saturday and Sunday.	· $194,376.24 per year used flexibly across assistance with daily living.
Other professionals (speech pathology)	· Currently funded for 49 hours per year, however this is frequently cancelled.	· $19,011.02 per year.
Occupational therapist (OT)	· Currently funded for 40 hours per year. · Current OT, Ms Morisaki is engaged only when required for AT prescriptions. · Ms Petki attends these meetings because she ‘knows KBCX better.[24]	· $8,341.56 per year.
Physiotherapist	· Currently funded for 156 hours per year. · Has not attended in the last 12 months.	· $30,262.44 per year.
Conductive education therapy[25]	· Currently funded for 3 sessions each week for 3 hours duration. Total of 9 hours each week. · $193.99 multiplied by 9 hours totals $1745.91 each week.	· $51,948.00 per year. · $51,948 divided by $1745.91 totals 29.75 weeks per year at 9 hours each week.
Transport for conductive education	· One-hour drive each way between KBCX’s and Ms Petki’s addresses. Transport is usually shared as follows: o Monday afternoons, in October 2024 Ms Petki collected KBCX from school to her address. One of KBCX’s parents would drive him home; o Wednesday mornings at KBCX’s home; o Friday afternoons at Ms Petki’s home. M transports KBCX both ways.

Hours per week	Rate	Total cost 2022
CE Therapy	9 hours per week	$193.99 per hour	$90,787.32
Travel time	1 hour per week	$193.99 per hour	$10,087.48
Travel fuel use	0.83 x 70km	$58.10 per week	$3,021.20
Total	$103,896.00