KDKJ and National Disability Insurance Agency (NDIS) - [2025] ARTA 454

KDKJ and National Disability Insurance Agency (NDIS) [2025] ARTA 454 (16 April 2025)
Applicant:KDKJ
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/2561

Tribunal:General Member J Toohey
Place:Brisbane
Date:16 April 2025
Decision:1. The decision under review, being the decision of the National Disability Insurance Agency:
(a)made on 27 April 2024 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth);
(b)as reassessed on 21 August 2024;

is set aside under section 105 of the Administrative Review Tribunal Act 2024 (Cth) and remitted for reconsideration with the directions that the statement of participant supports includes sufficient funding for:
(a)registered nurse supports to continue and be increased to seven nights per week of active overnight support;
(b)two sessions each per week of physiotherapy, occupational therapy, and speech therapy for 42 weeks per year;
(c)one session per week of hydrotherapy, with a therapist assistant, for 42 weeks per year;
(d) one session per fortnight of music therapy, for 21 weeks per year;
(e)one session per fortnight of art therapy, for 21 weeks per year;
(f)provider travel for therapies to be conducted at the Applicant’s home;
(g) report writing by the Applicant’s registered nurses and treating practitioners as required;

2. The statement of participant supports is also to include a reassessment date of 12 months after implementation of the new plan following this decision.
3. The remaining aspects of the statement of participant supports, including plan management, remain unchanged.

Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and Necessary Supports – Best Interests of the Child – Registered Nurse Supports – Delegated Model – High Intensity Support Workers – What it is reasonable to expect families to provide – Disability-related health supports – Whether more appropriate to fund under NDIS or health system – Therapy Supports – Needs Arising from Impairments – Duty to Assist Tribunal
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018
National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Cases
Brown and National Disability Insurance Agency [2024] AATA 3318
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
National Disability Insurance Agency v Davis [2022] FCA 1002
Rogers and National Disability Insurance Agency [2022] AATA 2809
RTRH and National Disability Insurance Agency [2022] AATA 205
QDKH v National Disability Insurance Agency [2021] FCAFC 189
Secondary Materials
Commonwealth Risk Management Policy, Department of Finance
Explanatory Statement: National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Guidance Note 1 The Administrative Appeals Tribunal Act 1975: Obligation to assist the Tribunal. Office of Legal Services Coordination
National Guidelines: Best Practice in Early Childhood Intervention, Early Childhood Intervention Australia
NDIS Operational Guideline: Disability-related health supports, 5 December 2024
NDIS Operational Guideline: Early childhood approach, 28 October 2024
NDIS Practice Standards: High intensity support skills descriptors, November 2022
NDIS Pricing Arrangements and Price Limits 2024-25, 1 October 2024
Statement of Reasons
INTRODUCTION

The issue before the Tribunal is whether supports requested by the Applicant are reasonable and necessary supports to be funded in the Applicant’s statement of participant supports (SPS) for the purposes of sections 33 and 34 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). I have decided that the Agency’s decision should be set aside. This decision is made under section 105 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). The reasons for this decision are as set out below.
KDKJ is young child, currently aged 5, who lives with significant impairments resulting from her diagnosis of cerebral palsy (CP) and related conditions. On the Gross Motor Function Classification System (GMFCS), KDKJ is classified as a level 5 (out of 5) which is at the most severe level on this classification scale. Her treaters summarise the impacts on KDKJ’s functional capacity as follows:
[KDKJ] requires significant support to complete all personal, instrumental and community activities of daily living. As the PEDI-CAT results below indicate, [KDKJ] performs in the lowest percentile for all domains of daily life and requires complete support at all times. She cannot be left unattended at any time to ensure her safety and wellbeing. She is completely reliant on her family and nurses for completing all of her personal care needs, moving her in equipment to access her home and the community. She is unable to eat anything orally and receives all of her medication and nutritional needs via her gastrostomy button. [KDKJ]’s functional abilities are not expected to increase and she will require this extensive level of support 24/7 into the foreseeable future. As she gets bigger and taller with age, the demand of her care and her support needs will continue to increase.[1]
[1] Functional Capacity & Progress Report, 10 January 2024, combined report by physiotherapist, occupational therapist and speech pathologist. At page 88 of the joint hearing bundle.
On 28 March 2024, a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Agency) approved an SPS for the Applicant. The Applicant requested an internal review of the delegate’s decision and, on 27 April 2024, the Agency affirmed its original decision. On 28 April 2024, the Applicant applied for a review by the Administrative Appeals Tribunal (AAT) under section 103 of the NDIS Act and section 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
On 3 October 2024, the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth) (Back on Track Amendment Act) commenced and made significant amendments to the NDIS Act. The Tribunal will apply the amended considerations in sections 33, 34, 35 of the NDIS Act and related rules in the Tribunal’s decision-making process. The Applicant contended that these amendments should not apply to KDKJ’s plan. I discuss this further below.
On 14 October 2024, the 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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.[2]
[2] The following paragraph is approved for use in all Tribunal decisions.
The first part of the hearing was held in-person in Brisbane on 29, 30 and 31 October 2024. The hearing was adjourned in 31 October 2024 and resumed on 24 February 2025. The resumed hearing was held by video. As a minor, KDKJ was not required to participate in hearing and was not present. KDKJ was represented by her mother (AM) and father (AF). The Agency was represented by Counsel, Ms M Fisher as instructed by Ms A Barac of Maddocks Lawyers. Following the hearing, the parties were directed to provide final written submissions. The last submissions were received on 26 March 2025.
Issues to be decided
The issues before the Tribunal are whether the following supports are reasonable and necessary supports for the Applicant:
(a)Registered nurse supports;
(b)Therapy supports including occupational therapy, physiotherapy, speech therapy, hydrotherapy, art therapy and music therapy.
In the week before the hearing, the Agency also identified an additional issue, being whether the supports were necessary to address needs arising from impairments which meet the disability or early intervention requirements as required by the recently added section 34(1)(aa) of the NDIS Act.
Summary of evidence
The Tribunal was provided with a joint hearing bundle by the parties, and this was accepted into evidence at the hearing.[3] This large bundle of documents (1201 pages) included:
[3] The page numbering in the joint hearing bundle index adopted throughout these reasons.
(a)The ‘T-documents’;[4]
[4] Which are all the records that the Agency considered when making the decision under review as required by section 37 of the AAT Act.
(b)Incident reports and logs of clinical events;
(c)Reports and letters from the Applicant’s allied health professionals;
(d)Assessment letters from the applicant’s registered nurse and nurse navigator;
(e)Letters from the Applicant’s specialist paediatrician and orthopaedic surgeon.
At the first part of the hearing, The Tribunal received oral evidence from the Applicant’s:
(a)Mother (AM);
(b)Father (AF); and
(c)Registered nurse (RN);
Following the first part of the hearing the Tribunal was also provided with supplementary ‘T-documents’ relating the Applicant’s original access decision (67 pages). At the resumed hearing, the Tribunal heard oral evidence from the Applicant’s:
(a)Specialist paediatrician (SP); and
(b)Nurse navigator (NN).
Overview of the NDIS decision-making framework[5]
[5] I have used a similar overview in other decisions.
Chapter 1, Part 2 of the NDIS Act sets out the Act’s objects and principles including, for example, that the NDIS Act is to: support the independence and social and economic participation of people with disability,[6] protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports,[7] acknowledge and respect the role of families,[8] give full consideration to the need to protect a child from harm,[9] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[10]
[6] Section 3(1)(c).
[7] Section 3(1)(ga).
[8] Section 4(12).
[9] Section 5(f).
[10] Section 3(3)(b).
Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance indicates that the planning process should, so far as reasonably practicable, recognise and respect the relationship between participants and their families and carers,[11] and strengthen and build capacity of families and carers to support participants who are children.[12]
[11] Section 31(ca).
[12] Section 31(d).
A participant’s plan must include a statement of the participant’s goals and aspirations[13] as well as an SPS that includes the reasonable and necessary supports that will be funded by the Agency.[14] In deciding to approve an SPS, the Agency must have regard to the matters set out in section 33(5), including applying the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules), and be satisfied that each support meets the criteria in section 34. The criteria in section 34(1) are that:
[13] Section 33(1).
[14] Section 33(2)(b).
(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 …
(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.
The Support Rules also remain in force and provide greater explanation of the application of the crtieria in section 34. For example, in relation to assessing value for money for section 34(1)(e), Rule 3.1 says that a decision-maker must consider:
(a)       whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)       whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)       whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports) …
The Back on Track Amendment Act added section 34(1)(f) which requires that the support is a NDIS support for the participant. This, in turn, applies the new definition of ‘NDIS support’ in section 10. Section 10 provides that rules may be made that declare whether a support is (or is not) an NDIS Support. Section 124 of the Back on Track Amendment Act states that the reference to rules made under section 10 includes rules made under section 138 of the Back on Track Amendment Act which allows the Minister to make transitional rules.
The Minister has made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules) and these rules commenced on 3 October 2024. Schedule 1 of the Transitional Rules specifies ‘Supports that are NDIS supports unless otherwise provided’. Schedule 2 specifies ‘Supports that generally are not NDIS supports’.
18.The Minister also made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Transitional Rules). Section 7 of the Miscellaneous Transitional Rules requires that a decision-maker must also be satisfied the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services. In effect, this means that decision-makers are (at least until new rules are made) applying two versions of section 34(1)(f), as it was before the amendments, and the new version as amended.
The NDIS Operational Guidelines and Practice Standards also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[15] In this matter, I will refer to the Operational Guideline: Disability-related health supports;[16] the NDIS Practice Standards: High intensity support skills descriptors;[17] the NDIS Price Guide;[18] and the Early Childhood Approach[19] where relevant below.
CONSIDERATION
[15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
[16] NDIS Operational Guideline: Disability-related health supports, 5 December 2024.
[17] NDIS Practice Standards: High intensity support skills descriptors, November 2022.
[18] NDIS Pricing Arrangements and Price Limits 2024-25, Version 1.3, 1 October 2024.
[19] NDIS Operational Guideline: Early childhood approach, 28 October 2024.
Best interests of the child are paramount
I invited the Agency to make submissions on the application of section 5(f) in relation to the best interest of the child. Section 5(f) states that:
General principles guiding actions of people who may do acts or things on behalf of others
It is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in section 4 and the following principles:
…
(f) if the person with disability is a child--the best interests of the child are paramount, and full consideration should be given to the need to:
(i) protect the child from harm; and
(ii) promote the child's development; and
(iii) strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child.
The Agency submitted that:
In determining whether a requested support meets the criteria in section 34(1) of the Act, the Tribunal should apply the principle that the best interests of the Applicant are paramount and give full consideration to the need to protect the Applicant from harm, promote the Applicant’s development and strengthen, preserve and promote positive relationships between the Applicant and her parents.
However, where a requested support does not meet all of the criteria in section 34(1) of the Act, a finding by the Tribunal that the support would protect the Applicant from harm or promote the Applicant’s development or strengthen, preserve and promote positive relationships between the Applicant and her parents does not render the support a reasonable and necessary support for the Applicant.
Similarly, a finding by the Tribunal that a requested support was in the best interests of the Applicant would not render the support a reasonable and necessary support that will be funded under the NDIS in circumstances where the support did not meet all the criteria in section 34(1) of the Act. For example, where the support did not meet section 34(1)(f) of the Act because it was not an NDIS support for the Applicant.
In WWWX and National Disability Insurance Agency [2024] ARTA 285, the Tribunal had regard to the principle in section 5(f) of the Act in determining that, in relation to a requested support to provide respite for the Applicant’s parents, sections 34(1)(aa) and 34(1)(a) of the Act were met. However, the Tribunal was not satisfied on the evidence before it that sections 34(1)(c) and (d) of the Act were met in relation to the requested support. In the result, the requested support was not included in the applicant’s statement of participant supports.
In relation to the Tribunal’s inquiry as to “how best to give full consideration to those factors” set out in section 5(f)(i)-(iii) of the Act, the Respondent submits that the Tribunal, having fully considered the matters set out in section 5(f)(i)-(iii), should explicitly state in the statement of reasons that it has done so.[20]
[20] Respondent’s Closing Submissions, paragraphs 275 to 279.
I did not find this submission particularly helpful. What I was inviting the Agency to do was to be specific about how the best interests of the child should be appropriately applied in this matter. These are considerations that the Agency should be able to properly articulate, especially as these considerations also apply at the original and internal review decision stages but have not been previously addressed by the agency decision-makers. I will attempt to be specific about the application of the paramountcy of KDKJ’s best interests in my reasons below.
Satisfying the Tribunal about reasonable and necessary supports

The Agency makes the following submissions regarding an onus to satisfy the Tribunal:
While there is no formal onus of proof upon the Applicant, the Applicant must put forward evidence and information sufficient to satisfy the Tribunal that the relevant statutory requirements of the Act are met. If the Tribunal is not so satisfied, the Applicant cannot succeed: Beezley v Repatriation Commission [2015] FCAFC 165 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]; Minett and National Disability Insurance Agency [2024] ARTA 293 at [30]).
Contrary to the Opening submissions made by the Applicant’s father, there is no requirement that the Respondent ‘must prove that KDKJ does not require the requested supports beyond reasonable doubt’.[21]
[21] Respondent’s Closing Submissions, paragraphs 20 and 21.
The Agency is correct that ‘beyond reasonable doubt’ is not the correct standard to apply in merits review. Unless stated otherwise, matters at the Tribunal are generally determined on the balance of probabilities. However, I do not agree with the Agency that it is for the Applicant to put forward evidence sufficient to satisfy the Tribunal that the relevant statutory requirements are met. In my view, both parties have a responsibility to assist the Tribunal and provide relevant information as part of this process. Which party bears the greater responsibility on a particular issue to be determined will depend on the issue and the relevant statute. I considered these questions of ‘onus’ in some detail in Brown and concluded:
I am not of the view that the NDIS Act expressly or impliedly places an onus on the Agency in relation to plan reassessments in which supports are reduced. However, the values of the NDIS framework do incorporate a high expectation of the level of support the Agency will provide to participants during the reassessment process. If supports are reduced significantly, particularly where this reduction might involve risks to the participant or others, there is a greater responsibility on the Agency to be proactive in their information gathering so that they (and the Tribunal) can be satisfied that the reassessed level of supports are reasonable and necessary.[22]
[22] Brown and National Disability Insurance Agency [2024] AATA 3318, [45] to [51].
In relation to KDKJ, I consider there is greater level of responsibility on the Agency to satisfy the Tribunal that the delegated model of care is safe for the Applicant. I say this for three reasons:
(a)It is the Agency that is proposing that a delegated model, in which care is primarily provided by HISWs, is appropriate;
(b)KDKJ is a child whose best interests are paramount, and the Tribunal is required to give full consideration to protecting her from harm; and
(c)The risks identified to KDKJ receiving inadequate care are potentially life-threatening.
Applicant’s goals
Section 33(5)(a) of the NDIS Act says that, in deciding whether or not to approve an SPS, decision-makers must have regard to the participant’s statement of goals and aspirations. A copy of the Applicant’s most recent plan records KDKJ’s goals as being to:
(a)be supported to reach as many physical development milestones as possible, with the use of assistive technology where appropriate;
(b)start associating more words with items, people or meanings and be using some basic single words by the end of this plan period with assistive technology where needed. To also increase the ability to use Key Word Sign (KWS) to assist with communication and decision making;
(c)transition to oral feeding or at the least increase the ability to taste/feed orally;
(d)develop the capacity to remain awake and alert for longer periods throughout the day, to be able to engage more in activities and promote her achievement of developmental milestones;
(e)meet as many cognitive milestones as possible in her first years of life, with the use of assistive technology and other resources … to continue to be educated as any child would be at her age;
(f)be supported to engage in opportunities to interact socially with others as she grows when possible or to undertake social activities normalising her day-to-day activities;
(g)continue to develop her hearing to support her to continue to increase her communication skills; and
(h)trial and access high-tech augmentative and alternative communication (AAC) systems to enhance her independence and ability to communicate for a variety of reasons.[23]
[23] Pages 604 to 607 of the joint hearing bundle.
I have had regard to these goals and aspirations and will refer to them where relevant below.
Issue (a): Needs arising from an impairment which meets the disability or early intervention requirements
I will deal with this issue first as it has the potential to impact the consideration of the other issues. As mentioned above, the Back on Track Amendment Act inserted section 34(1)(aa) which requires that:
(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participantmeets the disability requirements (see section 24) or the early intervention requirements (see section 25).
At the end of section 34, there are the following notes:
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.
Does section 34(1)(aa) apply to the Applicant’s SPS?
The Applicant’s parents submitted that section 34(1)(aa) does not apply to KDKJ’s SPS. The Back on Track Amendment Act also inserted section 32A which sets out that there are now two kinds of plans: being ‘new framework plans’ and ‘old framework plans’. This review is considering an ‘old framework plan’. Section 129 of the Back on Track Amendment Act deals with the application of the amendments to the content and approval of ‘old framework plans’ and states that:
sections 33, 34 and 35 of the National Disability Insurance Scheme Act 2013, as in force on and after the commencement of this Schedule, apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after that commencement.
… (a) whether the participant becomes a participant; and
(b) in the case of a variation—whether the plan comes into effect;
before, on or after that commencement.
The Applicant’s parents contend that:
The decision to be made by an internal reviewer under section 100(6) is whether the reviewable decision should be confirmed, varied or set aside and substituted.
The decision by the Tribunal is not in itself to approve a SOPS under s 33(2) of the NDIS Act or to vary a SOPS under Chapter 3, Part 2, Division 4 of the NDIS Act.
Rather, the decision by the Tribunal is a decision under section 105 of the ART Act to either affirm, vary or set side and substitute or remit the decision by the internal reviewer under review.[24]
[24] Applicant’s Outline of Submissions, 22 November 2024, paragraphs 17 to 19.
In support of this contention the Applicant’s parents refer to the decision of the Full Federal Court in QDKH,[25] as well as the AAT decisions in Rogers[26] and RTRH.[27] I agree with the reasoning in the decisions, however, I consider that these authorities are directed towards a different issue, being whether the commencement of new plan (while a matter was before the Tribunal) limited the scope of the Tribunal’s decision-making power. This is an issue which has largely been addressed through the addition of section 47A and amendment of section 103 made under the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022. The effect of these changes was to ensure that variations to a participant’s SPS that were made while a matter was before the Tribunal could also be reviewed by the Tribunal without a new application for review needing to be made.
[25] QDKH v National Disability Insurance Agency [2021] FCAFC 189.
[26] Rogers and National Disability Insurance Agency [2022] AATA 2809.
[27] RTRH and National Disability Insurance Agency [2022] AATA 205.
The reasoning in the Tribunal decisions above draws the distinction between the replacement of plans and the decision to approve an SPS within a plan. It is consistent with this reasoning that the Tribunal is considering whether to approve or vary an SPS in an old framework plan as covered by section 129 of the Back on Track Amendment Act. It is possible that a decision to affirm an Agency decision not to vary an SPS in an old framework plan might not be caught by section 129 as it is not a decision to approve or vary an SPS. I do not need to consider this possibility further in this matter as the Applicant is seeking to vary the SPS under review.
The Tribunal on review is now considering whether supports are reasonable and necessary and should be funded as part of an SPS. If any aspect of the Tribunal’s review results in an approved or varied SPS I consider that the Tribunal is required to apply the amended considerations in sections 33, 34, 35 of the NDIS Act and related rules as part of the Tribunal’s decision-making process.
Which impairments meet the disability or early intervention requirements?
As set out in the new note (a) to section 34, the CEO (and therefore the Tribunal) needs to consider whether the disability requirements or the early intervention requirements are met at the time of deciding whether to approve an SPS. This is not a straightforward exercise. Under the new section 32BA, the CEO is required to notify participants of the impairments which meet the disability or early intervention requirements. As KDKJ became a participant prior to section 32BA there was no requirement to notify her of the impairments which met the disability or early intervention requirements. Without this notice requirement, the records kept by the Agency on access decisions do not go to this level of detail.
This problem is illustrated by the supplementary ‘T’ documents provided by the Agency in this matter. These are the records held by the Agency that were relevant to KDKJ’s access decision. AM made an NDIS access request on 24 June 2019, which was within 3 months of when KDKJ was born. The section of the access request form completed by KDKJ’s treating allied health professionals, at that time, recorded KDKJ’s primary disability as being ‘Significant Global Development Delay. At risk cerebral palsy’ and indicated that there were no treatments that were likely to remedy the impairment. This section also specified the areas in which KDKJ would require assistance.[28] A letter dated 25 June 2019 from KDKJ’s paediatrician at the time confirmed a diagnosis of ‘Global Development Delay in the context of severe global hypoxic brain injury acquired antenatally particularly affecting the basal ganglia …’.[29]
[28] SD1 of the Supplementary T’ Documents.
[29] Attached to SD2 of the Supplementary T’ Documents.
On 16 July 2019, a NDIS ‘Planning Tool - ECEI Family Service and Support Information (FSSI)’ was completed. ECEI refers to ‘Early Childhood Early Intervention’ and this tool was completed by an NDIS early childhood community partner organisation. This tool includes a detailed assessment of the functional impacts of KDKJ’s impairments in the areas of physical development, language and communication skills, self-care skills, cognitive development, social skills and emotional development, and hearing.
On 24 July 2019, AF also made an access request by completing the evidence of disability form for the ‘NDIS Pathway Hearing Stream: Priority pathway for newly diagnosed children (0-6 years).’[30] This was accompanied by an audiology report dated 1 July 2019 which confirmed hearing loss for KDKJ.[31]
[30] SD3 of the Supplementary T’ Documents.
[31] SD4 of the Supplementary T’ Documents.
The Agency submits that:
The Applicant gained access to the scheme on 2 July 2019 at the age of approximately 3 months. The Applicant was granted access to the scheme pursuant to section 25 of the Act. The Respondent accepted that the Applicant had global development delay and permanent impairments arising from a diagnosis of cerebral palsy.[32]
[32] Respondent’s Closing Submissions, 14 March 2025, paragraph 37.
However, none of the supplementary ‘T’ documents provided indicates whether KDKJ was granted access to the NDIS on the basis of the section 24 disability requirements, or the section 25 early intervention requirements, or which impairments met either or both of the disability and early intervention requirements. There does not appear to be a notice of decision in the documents as would have been required by section 28(2). As the Agency says that KDKJ was granted access on 2 July 2019, it can be assumed that no decision was required in relation to the ‘hearing stream’ access request made on 29 July 2019. As the Applicant also agrees that KDKJ met the early intervention requirements on the basis of global development delay and permanent impairments arising from cerebral palsy, I am satisfied that KDKJ had impairments which met the early intervention requirements at the time of the access decision. This still tells me little about which specific impairments met the early intervention requirements. This just tells me which diagnosed conditions met the early intervention requirements. A diagnosed condition can have a wide range of impairments as is clear from the GMFCS five-point classification scale mentioned earlier.
Section 32BA(5) allows the CEO to vary a notice of impairments. A decision to vary or not to vary such a notice is a reviewable decision that could be considered by the Tribunal under sections 99 and 103. However, as no notice of impairments has been given in this matter, KDKJ has not been able to request a variation to such a notice. Not surprisingly, more is known about KDKJ’s impairments now as compared to when she was 3 months old. But the changes for KDKJ over time have not been assessed by the CEO against the disability or early intervention requirements.
The Tribunal now has to assess whether a support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements. Knowing which impairments met the early intervention requirements at the time access was granted would have been a good starting point, but the Tribunal does not have this information. I will turn to the current evidence about KDKJ’s impairments which was the focus of the resumed hearing.
The Applicant’s parents provided a letter dated 18 November 2025 which was cosigned by NN and SP. This letter summarises KDKJ’s current conditions related to her cerebral palsy, care requirements and co-morbidities. The Agency arranged for both authors of this letter to provide oral evidence at the resumed hearing. At the resumed hearing, in response to questions from the Agency, NN conceded that the letter was initially sent to her as a draft by AM. NN said that she checked these details provided against KDKJ’s health records, made one change, endorsed the contents of the letter, and sent it to SP for co-signing. SP was not aware of AM’s involvement in drafting the letter but confirmed that this would not have prevented her signing the letter as the contents were factually correct.
The Agency contends that this letter should be given no weight as:
(a)The unsatisfactory provenance means that the letter does not contain the expert opinion of NN or SP; and
(b)NN’s evidence was that the contents of the letter were extracted from records which were not before the Tribunal.
I am surprised at the approach taken by NN in not having directly drafted the letter herself, or perhaps having a team member prepare a draft. Relying on a parent to draft a letter which was to be co-signed by NN and SP seems to introduce some risk of providing medically inaccurate information. It would be a good practice to clearly disclose to SP, and any recipients of the letter, that AM was involved in preparing the letter. However, I accept NN’s evidence that she verified this information against the health records. I do not consider that the Tribunal also needs to verify these records. I also accept the Applicant’s submission that the Agency had access to a large volume of hospital records which were summonsed in a previous matter (and which were released from the application of the implied undertaking) and specifically declined the opportunity to summons up-to-date records in this matter. On balance, I do give less weight to the written letter, but I do not accept the Agency’s submission that it should be given no weight.
The Agency does however submit that SP’s oral evidence should be given weight and that this should be preferred to the opinion of NN. I consider both NN and SP’s oral evidence should be given weight. As NN and SP’s evidence was largely consistent, I do not consider that I need to make a finding as to whether one opinion should be preferred above the other.
Based on SP’s oral evidence, the Agency accepts that KDKJ’s impairments arising from the following conditions meet the early intervention requirements:
(a)cerebral palsy;
(b)bulbar dysfunction;
(c)developmental dysplasia of the hips;
(d)incontinence;
(e)scoliosis;
(f)developmental delay (gross motor, fine motor, speech and social development);
(g)dystonia;
(h)bronchiectasis;
(i)chronic visual impairment; and
(j)hearing impairment.
The Applicant does not disagree with the above list. I am also satisfied this is the case. I note the strength of SP’s oral evidence about the connection of KDKJ’s impairments to her cerebral palsy:
So sometimes conditions can arise for other reasons. I think on the balance of probabilities, for KDKJ, it’s 99 per cent sure that they’re all due to her cerebral palsy.
SP did acknowledge that KDKJ’s heart defect and right tracheal bronchus were congenital and not related to her cerebral palsy. KDKJ’s heart conditions are listed as co-morbidities in the 18 November 2025. Neither party addressed whether these co-morbidities formed part of KDKJ’s disability support needs referred to in note (b) of section 34(1)(aa).
The list above clarifies which conditions meet the early intervention requirements. For section 34(1)(aa), a further step is needed to describe these conditions in terms of the impairments that arise. This is the task set out in section 32BA, which provides:
(2) The notice must state:
…
(b) if the participant meets the early intervention requirements because of subparagraph 25(1)(a)(i) or (ii)--the categories of impairments under subsection (3) that cover the impairments in relation to which the participant meets those requirements; and
(c) if the participant meets the early intervention requirements because of subparagraph 25(1)(a)(iii)--that the participant has developmental delay.
(3) Each of the following is a category of impairments for the purposes of paragraphs (2)(a) and (b):
(a) intellectual impairments;
(b) cognitive impairments;
(c) neurological impairments;
(d) sensory impairments;
(e) physical impairments;
(f) impairments to which a psychosocial disability is attributable.
The evidence is clear that KDKJ has development delay for the purpose of section 25(1)(a)(iii). KDKJ also has neurological, sensory and physical impairments. The impairments are described by her allied health professional as including that KDKJ:
(a)requires assistance and a hoist to transfer between her seating, bed, change table, bath raise and the floor;
(b)cannot sit without assistance, stand, or walk, and requires a disability stroller pushed by an adult for community access;
(c)requires a carer for all bathing, dressing and grooming tasks;
(d)is doubly incontinent;
(e)requires oxygen 24/7;
(f)required deep suctioning around every 5 minutes;
(g)is unable to complete simple household tasks that would be expected from a child her age;
(h)is unable to communicate verbally;
(i)is unable to eat orally.[33]
[33] Functional Capacity & Progress Report, 10 January 2024, pages 88 and 89 of the joint hearing bundle.

KDKJ’s treating allied health professionals indicate that KDKJ’s learning and cognitive abilities are unable to be formally assessed at this time because of her physical limitations. However, they do say that ‘on all situations [KDKJ] requires extensive differentiations to learning situations along with support and adaptions’.[34] It is not entirely clear to me whether it is correct to say that KDKJ has intellectual or cognitive impairments. It is positive that KDKJ has recently demonstrated an ability to communicate some phrases using the EyeGaze device.
[34] Page 89 of the joint hearing bundle.
Which supports are necessary to address needs arising from these impairments?
The Agency submits that registered nursing is not necessary to address needs arising from impairments which meet the early intervention requirements, as KDKJ’s needs can be addressed by the support of a high intensity support worker (HISW). In my view, this submission is misplaced. The question of whether a HISW is an alternative to nursing is properly considered in assessing whether the support represents value for money under section 34(1)(c). I do not consider that section 34(1)(aa) adds a separate requirement with respect to whether there is an alternative support that can meet a participant’s needs. The separate requirement added by section 34(1)(aa) is with respect to the connection between a support and an impairment which meets the disability or early intervention requirements.
The Agency also submits that hydrotherapy is not necessary to address needs arising from impairments which meet the early intervention requirements, as KDKJ already receives physiotherapy sessions. Again, I consider that this submission is misplaced. The issue of whether a support duplicates another support is already provided for in the value for money criteria in section 34(1)(c) and Rule 5.1(c) of the Support Rules. As above, I do not consider that section 34(1)(aa) adds a new requirement with regards to the necessity of a support or whether other supports are directed at similar goals or outcomes. The Agency makes similar submissions with regards to music and art therapy and I do not accept these submissions for the same reason.
Issue (b): Registered nurse supports
The Applicant seeks to maintain and increase the level for funding for registered nurse supports as follows:
(a)maintain 12 hours per day for each weekday;
(b)add 12 hours per night for an additional two weeknights (an increase from the current funding for three weeknights);
(c)add 12 hours for an extra Saturday per month (an increase from the current funding for one Saturday per month);
(d)add 12 hours for an extra Sunday per month (an increase from the current funding for one Sunday per month);
(e)an increase to account for public holiday rates for 13 public holidays per year;
(f)not transition to a delegated model with registered nursing supports moving to being provided by HISWs.
The Agency submits that the following model as per the current plan is reasonable and necessary:
(a)4 months of registered nursing supports with:
(i)12 hours per day for each weekday;
(ii)12 hours per night for three weeknights per week;
(iii)12 hours for one Saturday per month;
(iv)12 hours for one Sunday per month;
(v)12 hours for each of six public holidays per year;
(b)With a transition to 9 months of HISW support under a delegated model with:
(i)12 hours per day for each weekday;
(ii)4 hours per evening for each weekday evening;
(iii)8 hours per night for each weeknight;
(iv)12 hours for one Saturday per month;
(v)12 hours for one Sunday per month;
(vi)22 hours for each of six public holidays per year;
(c)With 139 hours of registered nursing supports comprising:
(i)12 hours for health assessment;
(ii)4 hours for environmental assessment;
(iii)8 hours for support plans/updates;
(iv)50 hours for training; and
(v)65 hours for supervision.
As noted above, I consider that supports provided by a registered nurse are necessary to address KDKJ’s needs arising from an impairment in relation to which she meets the early intervention requirements.[35] There is also no dispute that registered nurse supports will assist KDKJ to pursue her goals,[36] and to undertake social participation activities.[37] Having reviewed the material before the Tribunal, I am also satisfied that the criteria in sections 34(1)(a) and (b) of the NDIS Act are met.
[35] Section 34(1)(aa).
[36] Section 34(1)(a).
[37] Section 34(1)(b).
Is a delegated model of care appropriate for KDKJ?
The Applicant’s parents rely on the evidence of RN who is one of three registered nurses who currently provide support to KDKJ. RN provided letters of support and created a log of clinical events that the other nurses and the Applicant’s parents helped to complete. RN also provided oral evidence to the Tribunal. In summary, RN’s evidence was that registered nursing care is required because:
(a)KDKJ’s needs are complex, and she requires specialised care;
(b)Clinical judgement is required to respond to rapid changes in KDKJ’s health status;
(c)Suctioning is necessary up to 15 times an hour to maintaining a clear airway and prevent aspiration;
(d)Ventilation and respiratory supports require regular assessment and timely intervention;
(e)Circulation needs to be monitored and readiness maintained for paediatric resuscitation;
(f)Regularly skin integrity checks are required to prevent pressure injuries;
(g)Registered nurses have the depth of knowledge and skills required to apply advanced clinical reasoning and problem-solving; [38]
(h)It is the responsibility of the registered nurse to assess whether it is appropriate to delegate tasks to a HISW;
(i)The registered nurse remains responsible for the care being provided in a delegated model; and,
(j)Delegation is only appropriate when there are established and predictable patient outcomes, which is not the case for KDKJ.[39]
[38] Points (a) to (g) at pages 186 to 192 of the joint hearing bundle.
[39] Points (h) to (j) at pages 550 to 554 of the joint hearing bundle.
The Agency submits that the Tribunal should not accept RN’s evidence as an expert and give no weight to the documents prepared by her as RN:
(a)Does not have the clinical experience to provide expert evidence and recommendations in this matter;
(b)Did not have regard to the HISW skills descriptors in her first assessment letter;
(c)Has not worked as a HISW, with a HISW, or in a delegated model of care in the NDIS space;
(d)Made recommendations on the appropriate model of care which was well beyond her remit;
(e)Has not provided overnight care to KDKJ;
(f)Is not independent as she has a conflict of interest as a paid service provider to KDKJ; and
(g)Should only be considered a witness of fact.
The Applicant ‘s parents submit that RN’s evidence should be given weight as RN:
(a)Is appropriately qualified as a registered nurse;
(b)Can make nursing assessment and recommendations as this within the scope of practice for a registered nurse;
(c)Has insight into KDKJ’s care requirements, having provided care since July 2022;
(d)Interacts with the overnight nurse;
(e)Is not required to be a HISW;
(f)Not referring to the HISW skills descriptors does not reduce the value of the facts in her first letter; and
(g)Has KDKJ’s needs, safety, and development as her primary consideration.
I do not agree with the Agency that RN’s evidence should be given no weight. I agree that RN is placed in position of having a conflict of interest. However, it is difficult to see how this can be fully avoided when assessing the appropriateness of a delegated model of care. The Agency’s Operational Guideline: Disability-related health supports states the following:
What is registered nurse delegation and supervision of care?
For many disability-related health supports, a registered nurse may be able to train and delegate key tasks. This training could be given to a support worker or enrolled nurse if a family member, friend or carer can’t do it. This trained worker would directly provide you with the disability-related health support when they are competent in the task. This is called ‘delegation and supervision of care’. It means that a trained person, such as a support worked or enrolled nurse will complete the task for you, instead of a registered nurse.
How do we know what tasks can be delegated?
First, we’ll need to know if the disability-related health support you need can be done by a family member, friend, or carer. If not, it might need to be delegated to another person.
…
It is the registered nurse who must decide if a task can be delegated or not, as they remain responsible for the care being provided.
A registered nurse can’t delegate a task if your health needs are inconsistent or likely to change. Also, some tasks can’t be delegated and will need to be done by a registered nurse. For example, daily tracheostomy tie and dressing changes.
What remains the responsibility of the registered nurse?
When a registered nurse delegates a task, they retain responsibility for the tasks being provided. Before a registered nurse can delegate a task to someone else, they must make sure the person is trained specifically to meet your support needs and competent to do that task. They must also be available for direct and indirect supervision of the person doing the task.[40]
[40] NDIS Operational Guideline: Disability-related health supports, pages 11 and 12.
It is important to note that, from the guidance above, it is the registered nurse who must decide if a task can be delegated or not, and the registered nurse remains responsible for the care being provided. In this delegated model, the opinion of a registered nurse that is responsible for the care or a participant takes on a considerable significance in two ways. First, their clinical opinion about which tasks can and cannot be appropriately delegated must be given some weight. Second, as they retain responsibility for the care, they would be placed in a very difficult position if an NDIS decision-maker could override their clinical assessment and proceed with a delegated model which a registered nurse did not agree was appropriate. Ethically, I expect a registered nurse would not be able to continue providing care if they were required to deliver this care in a delegated model which they did not consider was safe. That the registered nurse will usually be providing paid nursing services when they are asked to consider whether tasks can be delegated or not also means that a potential conflict of interest will almost always be present.
Having heard the oral evidence from RN and having the benefit of her written assessments and recommendations, I was impressed with RN’s dedication to providing a high-level of care to KDKJ. Achieving the best outcomes for KDKJ appeared to me to be RN’s key motivation in providing her evidence. I accept that RN’s does stand to lose remuneration if a delegated model is implemented, and this potential conflict of interest does detract from the weight of her evidence. I also consider that there may have been some ‘blurring of the lines’ between RN’s motivation to care for KDKJ and advocating for a particular outcome for KDKJ and her parents. However, this does not lead me to the conclusion that RN’s evidence should be given no weight, especially when it is not contradicted by any other evidence provided by a health professional.
I accept RN’s evidence that it would not be appropriate to delegate KDKJ’s care tasks to a HISW. Based on her direct experience in caring for KDKJ and exercising her clinical judgment as a registered nurse, RN considers that the complexity of KDKJ’s health needs, along with the risk of rapid changes that require an immediate response to prevent injury or death, mean that KDKJ’s care tasks are not suitable to be performed by a HISW. I note that, in her first letter, RN considered that it was similarly not appropriate for the care tasks to be performed by an enrolled nurse rather than a registered nurse. I accept that the risk to KDKJ’s safety is high and that it is appropriate to take a cautious approach, giving full consideration to the need to protect KDKJ from harm.[41]
[41] Section 5(f).
How should decision-makers apply the high intensity support skills descriptors?
The Agency submits that registered nurse supports are not reasonable and necessary because the same support can be provided by a HISW. I have considered the NDIS Practice Standards: High intensity support skills descriptors. The purpose of the descriptors are:
The high intensity support skills descriptors (skills descriptors) are supplementary guidance for NDIS providers and workers supporting participants with high intensity daily personal activities (HIDPA). They describe the skills and knowledge that NDIS providers should ensure their workers have when supporting participants who rely on HIDPAs. These supports present some of the highest risks for participants. Many of these supports are intensely personal in nature, and require workers to communicate and work closely with the participant to understand when and how to deliver supports safely in ways that meet the participants’ preferences and daily routines.
…
High intensity skills descriptors apply to providers required to be audited against the NDIS Practice Standards, Supplementary Module 1: High Intensity Daily Personal Activities (HIDPA), relevant to the high intensity supports they provide.
The skills descriptors provide further explanation of the skills and knowledge expected when supports are delivered by a competent worker who is not a qualified health or allied health practitioner. NDIS providers registered for these should ensure workers meet the expectations of the relevant skills descriptors. The relationship to the HIDPA practice standards is provided in each skills descriptor.[42]
[42] NDIS Practice Standards: High intensity support skills descriptors, page 3.
I acknowledge that these descriptors include standards for support needs that KDKJ has. For example, the descriptors include standards for ‘Complex Bowel Care’ the scope of which is said to be:
This skills descriptor applies when supporting a participant who is at risk of severe constipation or faecal incontinence and requires a support plan to manage this risk. This may apply to, for example: participants with conditions causing muscle or nerve damage such as spinal injury; Cerebral palsy with a Gross Motor Function Classification System level 3,4,5; some types of Acquired Brain Injury; some neurological conditions; stroke; autism, and where the support plan involves non-routine treatment such as use of non-routine pro re nata (PRN).[43]
[43] NDIS Practice Standards: High intensity support skills descriptors, page 7.
In her oral evidence, SP outlined the complexity of KDKJ’s bowel care and associated risks that she has observed when KDKJ has been in intensive care as:
… that amount of faeces can contaminate other areas such as her urethra, causing urinary tract infections, and lines. So she’s previously had lines inside her femoral vessels. And I know that there’s a lot of worry about the poo getting into wounds and causing infections. Also, because KDKJ can’t move herself, she’s high risk at pressure areas. And so when there’s poo and pressure areas, that’s a potentially life-threatening problem like infection.
It is reasonable to conclude that KDKJ requires complex bowel care. It is also clear form the descriptors that a HISW can be trained to provide complex bowel care. However, it does not necessarily follow that it is appropriate for KDKJ’s complex bowel care to be provided by a HISW. This is because the descriptors form part of the NDIS Practice Standards which are described as:
NDIS Practice Standards
Registered NDIS providers are obligated to comply with the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 as part of their conditions of registration. The NDIS Practice Standards state the high-level, participant-focused outcomes that registered NDIS providers are required to achieve and relate to the delivery of safe, quality supports and services, and the management of risks associated with the supports provided to NDIS participants.
Registered providers must also demonstrate compliance with the National Disability Insurance Scheme (Quality Indicators) Guidelines 2018. The Quality Indicators list the required NDIS Practice Standard outcomes and provides guidance to assist registered NDIS providers to understand and meet their NDIS Practice Standards obligations by describing the quality indicators that they should demonstrate when delivering supports and services to NDIS participants.
The NDIS Practice Standards that are most relevant to this guidance are the high intensity daily personal activities (Module 1).
Quality Audits
In order to become a registered NDIS provider and to maintain registration with the NDIS Commission, providers must meet registered provider requirements. One of the requirements is the condition to undergo an audit against the components of the NDIS Practice Standards that are relevant to the services and supports delivered.
Where a provider is delivering HIDPA supports, an independent Approved Quality Auditor (AQA) can use the skills descriptors, among other things, to assess whether a provider has demonstrated conformity to the NDIS Practice Standards and Quality Indicators.[44]
[44] NDIS Practice Standards: High intensity support skills descriptors, page 4.
The preamble to the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 says that:
The NDIS Quality and Safeguards Commission is responsible for a range of functions under the National Quality and Safeguarding Framework aimed at protecting and preventing harm to people with disability in the NDIS market.
The Commission will build the capability of NDIS participants and providers to uphold the rights of people with disability and realise the benefits of the NDIS. The legislation underpinning the NDIS is intended to support participants to be informed purchasers and consumers of NDIS supports and services and to live free from abuse, neglect, violence and exploitation.
These rules set out some of the conditions that providers must comply with to become and remain registered NDIS providers. They also set out the NDIS Practice Standards that apply to all registered NDIS providers, and those that apply to providers delivering more complex supports in areas such as behaviour support, early childhood supports, specialist support coordination and specialist disability accommodation.
These rules also deal with the Provider Register. To support people with disability to exercise choice and control, the Provider Register will include details about an NDIS provider’s registration and any relevant compliance action taken in relation to the provider.
In my view, the NDIS Practice Standards are primarily aimed at safeguarding participants in their dealings with registered providers. I do not consider that the standards are intended to, in some way, codify which supports are reasonable and necessary for individual participants. The standards require that some types of care can only be provided by an appropriately qualified HISW. This is not the same question as determining whether funding should be provided for care by a registered nurse or by a HISW under delegation by a registered nurse. The Agency submits that the care being provided to KDKJ by a registered nurse is not reasonable and necessary because this care can be provided by a HISW. This submission unnecessarily conflates the NDIS participant safeguarding and planning frameworks. This is not to say that the standards have no bearing on an assessment of reasonable and necessary supports. The standards will be relevant, particularly when assessing whether a support should be completed by a standard support worker as compared with a high intensity support worker. But the standards do not set out what tasks are appropriate for a HISW to perform as compared with a registered nurse.
Do registered nurse supports represent value for money?

The Agency submits that the transition to a delegated model represents value for money, saying:
The Agency has costed the requested RN support at $1,164,096.48 per year. By way of comparison, the alternative support contended for by the respondent is costed at $645,560.59 for the first 12 months. As that support includes funding for a transition period, in the second year the cost of the support would be less than $645,560.59.[45]
[45] Respondent’s Closing Submissions, paragraph 96.
The Applicant’s parents disagree with this costing, saying:
The Applicant has costed RN support to $1,057,942.08 per year.
The Applicant has corrected the costings for the Delegated model of care also;
Both RN and HISW for 4 months of delegation and then 9 months of HISW costed at minimum $732,981.55 from the erroneous calculation of $645,560.59 – as it does not include the transition period contrary to the Respondents submission. This costing also does not account for escalations to relevant health practitioners.[46]
[46] Applicant’s Closing Submissions, paragraphs 63 to 65.
The Applicant’s parents also submit that:
(a)The NDIS Price Guide is not a true reflection of the cost of services provided;
(b)Value for money should not be assessed solely based on a cost; and
(c)The Agency’s expenditure on legal services should be considered as part of the context in assessing values for money and the financial viability of the scheme.
While I appreciate the Applicant’s concerns regarding the Agency’s expenditure on legal services, this is not part of the statutory task in assessing the value-for-money of a particular support for a participant.
The NDIS Price Guide says that:
Five types of disability-related health supports have been identified in the NDIS Support Catalogue:
Provision of Disability-Related Health Supports by Disability Support Workers – these supports should be claimed using the standard Daily Personal Activities and High Intensity Daily Personal Activities support items;
Assessment, planning and the provision of Disability-Related Health Supports by therapists these supports should be claimed using the standard early childhood and Therapy support items;
Assessment, planning and the provision of Disability-Related Health Supports by nurses – these supports should be claimed using the new nursing support items;
Consumables related to Disability Related Health Supports – these supports should be claimed using the new Low-Cost or High-Cost Disability Related Health Consumables support line items; and
Assistive Technology related to Disability Related Health Supports – these supports should be claimed using the new Disability Related Health Assistive Technology support line items.[47]
[47] NDIS Pricing Arrangements and Price Limits 2024-25, page 39.
With regards to nursing supports, the NDIS Price Guide says that:
These Disability-Related Health Supports provide nursing care to respond to the disability-related health needs of a participant where that care is not the usual responsibility of the health system. They have been duplicated into the Assistance with Daily Life Support Category so that participants can have greater access to these supports if they need them.[48]
[48] Page 53.
There are five levels of nursing supports set out NDIS Price Guide: enrolled nurse, registered nurse, clinical nurse, clinical nurse consultant and nurse navigator. I note that an enrolled nurse ‘is a person who provides nursing care under the direct or indirect supervision of a registered nurse’.[49]
[49] Page 53.
The rates set out for a HISW (Assistance with Self-Care Activities - High Intensity) ranges from $73.09 per hour at the weekday daytime rate to $162.38 on public holidays.[50] For context, I note this is only marginally more that the rate for a standard support worker which ranges from $67.56 per hour for the weekday daytime rate to $150.10 per hour on public holidays.[51]
[50] Pages 42 and 43.
[51] Page 40.
The rate for a registered nurse is more expensive than a HISW. These rates range from $119.82 per hour at the weekday daytime rate to $222.16 per hour on public holidays. For context, I also note that an enrolled nurse is more expensive than an HISW. The rates for an enrolled nurse range from $96.78 per hour at the weekday daytime rate to $179.34 per hour on public holidays.[52]
[52] Page 54.
It is not surprising that the Agency would consider that a HISW is better value for money than a registered nurse. A HISW is $46.73 per hour cheaper than a registered nurse at the weekday daytime rate. Expressed as a percentage, a registered nurse is 64% more expensive than a HISW. I would also observe that there seems to be a considerable step-up in the level of skills (and inherent risk) required in the services performed by a HISW as compared to a standard support worker. This is a substantial increase in the potential value of a HISW with only a moderate increase in price.
However, I agree with the Applicant’s parents that cost is not the only factor in assessing value for money (the Agency does not suggest that it is the only factor). As set out earlier, the Support Rules state that a decision-maker must consider whether there are comparable supports which would achieve the same outcome at a substantially lower cost.[53] In relation to a needs assessment the Support Rules also say:
4.1 When deciding whether or not to approve a statement of participant supports under section 33 of the Act, the CEO is to:
(a) identify the participant’s goals, aspirations, strengths, capacity, circumstances and context; and
(b) assess activity limitations, participation restrictions and support needs arising from a participant’s disability; and
(c) assess risks and safeguards in relation to the participant; and
(d) relate support needs to the participant’s statement of goals and aspirations.
[53] National Disability Insurance Scheme (Supports for Participants) Rules 2013, Rule 3.1(a).
While a HISW is a comparable support that can be provided at a substantially lower cost, I am not satisfied that a HISW achieves the same outcome as a registered nurse. From the evidence before the Tribunal, I am concerned that the risks to KDKJ’s safety are very high. In giving full consideration to KDKJ’s best interests and the need to protect her from harm, I am not satisfied that the risks to KDKJ are appropriately mitigated by the provision of a HISW.[54] There is no indication that the Agency has given consideration to the best interests of the child in this matter. There is also no indication that the Agency has assessed the risks and safeguards in relation to KDKJ as required by Rule 4.1(c).
[54] Section 5(f).
I am not satisfied that a delegated model with most daily activities being supported by a HISW is a lower cost alternative that achieves the same outcome as support being provided by a registered nurse. While the provision of funding for registered nurses is a more expensive option, given the risk to KDKJ if these supports are not continued, I am satisfied that funding for registered nurse supports represents value for money.[55] In reaching this conclusion, I have also had regard to the principle that people with a disability, and their families, should have certainty that people with a disability will receive the care and support they need over their lifetime.[56]
[55] NDIS Act, section 34(1)(c).
[56] NDIS Act, section 4(3).
In support of the Tribunal’s objective to improve the transparency and quality of government decision-making, I would suggest that the Agency’s decision-making would be improved by implementing clear risk assessment procedures. In circumstances such as KDKJ’s, before the Agency decides to step-down the level of supports provided to a child, it is important to ensure that any significant risks of harm are properly assessed. This would ordinarily involve identifying the risks, assessing their consequences and likelihood and considering whether these risks can be appropriately controlled through mitigation strategies or other measures.
As I observed in Brown,[57] the Department of Finance has published a Commonwealth Risk Management Policy in support of section 16 of the Public Governance, Performance and Accountability Act 2013.[58] This requires Commonwealth agencies to establish and maintain appropriate systems for the management of risk. Included in the policy is a Risk Toolkit which provides detailed guidance on conducting risk assessments. In my view, the Agency’s decision-making would be improved through implementing a structured and transparent risk assessment methodology.
[57] Brown and National Disability Insurance Agency [2024] AATA 3318 at [120].
[58] Commonwealth Risk Management Policy, Department of Finance registered nurse supports effective and beneficial?
In summary, the Agency submits that the Tribunal cannot be positively satisfied that registered nurse supports will be, or are likely to be, effective and beneficial for KDKJ, having regard to current good practice because:
(a)There is no report from the Applicant’s treating practitioners or independent expert recommending registered nurse supports;
(b)RN’s evidence should be given no weight;
(c)Daily nursing reports have not been provided;
(d)There is no requirement for a registered nurse to be present while the Applicant is undertaking therapy;
(e)Nursing care is provided by hospital staff during admissions;
(f)Seizures are currently managed well and do not require monitoring by a registered nurse;
(g)A complex bowel care plan is not in place or required;
(h)Ventilator and respiratory management plans are not in place and KDKJ’s parents have been informally to trained to manage these needs;
(i)KDKJ’s parents have also been informally to trained to manage suctioning, oxygen saturation monitoring, non-invasive ventilation, and chest physiotherapy meaning that registered nurses are not required for these tasks;
(j)When registered nurse are not available, KDKJ’s parents manage these tasks;
(k)A HISW could also be trained to manage these tasks.
The Applicant’s parents say that the Agency:
… continues to disregard the role of parents as a critical caring role. Lowering the standard of care from RN to HISW on the basis a parent and carer, with no medical knowledge who has been informally trained in functions to sustain the life of their daughter be the determining factor in lowering of supports.[59]
[59] Applicant’s Closing Submissions, paragraph 55.
The Support Rules say:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
As indicated above, I accept RN’s evidence that, due to the level of clinical judgment required, it would not be appropriate to delegate KDKJ’s care tasks to a HISW. In reducing the risk of harm to KDKJ, registered nurse supports are likely to be effective and beneficial for KDKJ. The fact that the Applicant’s parents manage these tasks when a registered nurse is not available does not diminish the benefits of these tasks being managed by a registered nurse when they are available. That a registered nurse might be able to transfer some skills and knowledge to a HISW does not replace the clinical judgment that a registered nurse is providing. I also note that SP, in her letter dated 2 November 2022, indicates support for KDKJ’s registered nursing care.[60]
[60] Join hearing bundle, page 535.
I have also had regard to the operation and effectiveness of previous plans,[61] and the objective that families should have certainty with respect to supports provided.[62] Registered nurse supports were specifically included in the 2021-22 and 2022-23 plans. The lived experience of the Applicant’s parents is a source of information for the Tribunal and this lived experience supports the need for registered nursing care.[63] Overall, I consider that registered nurse supports remain effective and beneficial.
[61] NDIS Act, section 33(5)(f).
[62] Section 4(3).
[63] Rule 3.2(b).
I also note that it is not just that I must be satisfied that registered nurse supports are effective and beneficial, in order to affirm the Agency’s decision, I would also need to be positively satisfied that a transition to a delegated model with HISWs is effective and beneficial. As I indicated above, my view is that the risks to KDKJ in making this transition to HISWs have not been fully considered and I am not satisfied that it is safe to do so.
As part of any risk assessment methodology (discussed above) I would suggest that, when the potential consequences involve the risk of death or other severe adverse health outcomes, the Agency should consider whether they have an appropriate level of medical evidence before they make their decision. If a further independent expert opinion is required, this should also be obtained before they make their decision. This is an appropriate risk mitigation strategy that is best implemented by the Agency during its decision-making processes. The Tribunal is not the appropriate forum for the Agency to commence this information gathering.
What is reasonable to expect KDKJ’s parents to provide?
The Agency submits that the frequency of registered nurse supports requested does not take account of what it is reasonable to expect families to provide. The Agency says that the frequency requested means that the Applicant’s parents would not be responsible for KDKJ’s weekend daytime care, other than two Saturdays and two Sundays per month, or any overnight care. The Agency agrees that KDKJ’s care needs are substantially greater than those of other 5-year-olds but contends that the Applicant’s parents providing KDKJ’s care for four weekend days per month is not consistent with them providing substantial care and support.[64]
[64] Referring to rules 3.4.
The Applicant’s parents also submit, and I agree, that KDKJ’s care needs are substantially greater than those of other children of a similar age. An activity log from January 2024 shows the high level of active overnight support that KDKJ requires.[65] The Applicant’s parents also rely on a letter from AM’s GP, dated 9 October 2023, in which the GP says that AM is suffering from increased anxiety and needs extra assistance and respite. I note that SP, in her letter dated 2 November 2022, indicates support for respite for KDKJ’s parents, saying:
[KDKJ] requires 24 hour care to enable her safety. Her parents currently have a level of day time carers to assist in providing [KDKJ’s] cares and to allow her parents to continue working/have respite. At night Her Father [AF] stays awake to provide cares until 1am at which point her Mother, [AM] wakes up to continue cares until daytime. The family do have night time carers that assist 2 nights per week. This is an immense carer burden and is not sustainable.[66]
[65] Joint hearing bundle, pages 344 to 355.
[66] Joint hearing bundle, page 535.
Since that report was written, the number of nights of active overnight support has been increased to 3 nights per week. The Applicant’s parents are requesting that this be increased to 7 nights per week. This is supported by RN who states:
The sustained lack of sleep of [KDKJ’s] parents poses a significant risk to [KDKJ’s] health and to the health and well-being of her parents. The implementation of Registered Nurse care overnight would safeguard [KDKJ’s] health, while also alleviating the pressures on her parents, offering them the respite needed for adequate rest and recovery. By securing continuous RN supervision during the night, this will enhance [KDKJ’s] care but also contribute to the overall stability and quality of life for her family, addressing the profound impact that this level of care has on their physical health, mental health, employment, and general well-being.[67]
[67] Assessment report, 14 January 2024, joint hearing bundle, page 545.
I acknowledge that RN is not a treater for KDKJ’s parents or a sleep specialist that is able to properly comment on the impacts of disrupted sleep on KDKJ’s parents. However, RN does include a number of references in her assessment which I consider support that there are likely to be health impacts on KDKJ’s parents from their interrupted sleep. For example, the Institute of Medicine (US) Committee on Sleep Medicine and Research says that:
Sleep loss generally, in adults, refers to sleep of shorter duration than the average basal need of 7 to 8 hours per night. The main symptom of sleep loss is excessive daytime sleepiness, but other symptoms include depressed mood and poor memory or concentration … Chronic sleep loss, while neither a formal syndrome nor a disorder, has serious consequences for health, performance, and safety…
In the past 10 or more years, research has overturned the dogma that sleep loss has no health effects, apart from daytime sleepiness. The studies discussed in this section suggest that sleep loss (less than 7 hours per night) may have wide-ranging effects on the cardiovascular, endocrine, immune, and nervous systems, including the following:
oObesity in adults and children
oDiabetes and impaired glucose tolerance
oCardiovascular disease and hypertension
oAnxiety symptoms
oDepressed mood
oAlcohol use. [68]
[68] Institute of Medicine (US) Committee on Sleep Medicine and Research; Colten HR, Altevogt BM, editors. Sleep Disorders and Sleep Deprivation: An Unmet Public Health Problem. Washington (DC): National Academies Press (US); 2006. Chapter 3, Extent and Health Consequences of Chronic Sleep Loss and Sleep Disorders. Available from: >
In oral evidence, the Applicant’s parents also said that they both had Post-Traumatic Stress Disorder (PTSD) and that AF suffered from Irritable Bowel Syndrome (IBS). While I do not have medical reports that support these diagnoses, or their specific causes, I also do not have any reason to doubt that KDKJ’s parents have these conditions. I think it is reasonable to consider that disrupted sleep has the potential to impact on these conditions.
Rule 3.4 of the Support Rules states that:
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for
children; and
(ii) whether, because of the child’s disability, the child’s care needs are
substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members
or carer or carers; and
(iv) whether the funding or provision of the support for a family would improve
the child’s capacity or future capacity, or would reduce any risk to the
child’s wellbeing …
I do not consider that is reasonable for the Applicant’s parents to provide active overnight support for KDKJ for four nights per week. This is well beyond what would be normal in the care of a 5-year-old child. This sustained lack of sleep does present risks to the wellbeing of the KDKJ’s parents, and to KDKJ.

With regards to Item 12(l), the Agency submits that:
There is evidence that the RNs are providing intervention and treatment to the Applicant in her home that prevents the calling of an ambulance or prevents hospital admissions. As set out above, one of the considerations RN takes into account was “whether the participant can be managed at home or if it needs emergency care”.
The Respondent submits that, to the extent that that is occurring, it falls within hospital in the home services and is not an NDIS support.
Hospital in the Home (HITH) service is available in Queensland (see Exh D7). The HITH service provides care in a patient’s residence for conditions that require ongoing clinical governance, monitoring and/or treatment, as a substitution for in-hospital admitted care.
The key feature of the Queensland HITH program is that if the patient (child/adult) is not receiving HITH, the patient would be admitted to hospital for treatment and accommodated in a hospital bed.
The Respondent submits that, if the Applicant requires HITH services, it is the responsibility of Queensland Health to provide those services.[75]
[75] Respondent’s Closing Submissions, paragraphs 143 to 147.
The Applicant submits:
… hospital in the home service are for any ongoing treatments post discharge from a QLD Health facility and are the responsibility of QLD Health to supply staff in whatever capacity is required. This does not include ongoing day-to-day patient care.[76]
[76] Applicant’s Closing Submissions, paragraph 96.
For similar reasons to Item 12(i) above, I do not accept the Agency’s submissions on the hospital in the home service. I agree that the evidence before the Tribunal was that RN has applied clinical interventions which prevented hospitalisation, and that she (and KDKJ’s other nurse supports) makes clinical judgments about whether KDKJ requires hospitalisation. This clinical monitoring, intervention and escalation does not mean that KDKJ is receiving a hospital in the home service. With appropriate interventions, hospital admission appears to be avoided at times. It is possible that KDKJ would otherwise meet the hospital admission criteria if these interventions were not applied on these occasions. However, it does not follow that KDKJ would meet the hospital admission criteria on a general basis as opposed to an occasional basis. In my view, this situation does not meet the threshold for admission to the hospital in the home model.
From the above, I consider that daily personal activities; high intensity daily personal activities; community nursing care; and disability-related health supports are NDIS supports for KDKJ. I do not consider that supports from registered nurses are excluded from being an NDIS support for KDKJ.
Are registered nurse supports most appropriately funded through the NDIS?
As mentioned earlier, section 7 of the Miscellaneous Transitional Rules requires that a decision-maker must also be satisfied the support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services. This, in effect, retains the requirement that was in section 34(1)(f) prior to the Back on Track Amendment Act.
Following from the discussion above, I consider that registered nurse supports fall within Rule 7.4 of the Support Rules are as they are related to a KDKJ’s ongoing functional impairment and enable her to undertake activities of daily living. The supports are delivered by clinically trained and qualified health practitioners and are integrally linked to the care and support KDKJ requires to live in the community. I am satisfied that registered nurse supports for KDKJ are more appropriately funded through the NDIS, and not more appropriately funded through the health system.
Conclusion on registered nurse supports
I am not satisfied that funding 12 hours of registered nurse supports for an additional Saturday and Sunday each month is reasonable and necessary. I consider that it is reasonable to expect KDKJ’s parents to provide care on these weekends.[77]
[77] Section 34(1)(e).
I am satisfied that continuing registered nurse supports, and increasing active overnight registered nurse supports for KDKJ, is reasonable and necessary. Registered nurse supports are necessary to address KDKJ’s needs arising from impairments in relation to which she meets the early intervention requirements.[78] Registered nurse supports assist KDKJ to pursue her goals,[79] and to undertake social participation activities.[80] Due to the complexity of KDKJ’s care needs and risks to her safety and wellbeing, I am not satisfied that transitioning to a delegated model with HISWs providing care for KDKJ under supervision of a registered nurse is appropriate. In reaching this conclusion I have given consideration to KDKJ’s best interests as a child being paramount and the need to ensure KDKJ is protected from harm.[81] Registered nurse supports represent value for money.[82] HISWs are not a comparable support which achieves the same outcome at a substantially lower cost.[83] Due to the level of clinical judgment required, it would not be appropriate to delegate KDKJ’s care tasks to a HISW. In reducing the risk of harm to KDKJ, registered nurse supports are likely to be effective and beneficial for KDKJ.[84]
[78] Section 34(1)(aa).
[79] Section 34(1)(a).
[80] Section 34(1)(b).
[81] Section 5(f).
[82] Section 34(1)(c).
[83] Support Rules, Rule 3.1(a).
[84] Section 34(1)(d).
It is not reasonable for KDKJ’s parents to provide active overnight support for four nights per week. This sustained lack of sleep presents risks to the wellbeing of KDKJ’s parents, and to KDKJ. KDKJ’s care requirements are substantially greater than those of other children of a similar age.[85] Active overnight support from a registered nurse for seven nights per week takes into account what is reasonable for families to provide.[86] Registered nurse supports are an NDIS support for KDKJ under Items 12, 14, 16 and 21 of Schedule 1 of the Transitional Rules.[87] Registered nurse supports are not excluded under Item 12 of Schedule 2 of the Transitional Rules. I am satisfied that registered nurse supports for KDKJ are more appropriately funded through the NDIS, and not more appropriately funded though the health system.[88] Sufficient funding will need to be included for the registered nurses to prepare updated assessment reports for the Agency. I do not consider that provision of these supports will impact the financial sustainability of the scheme.[89]
[85] Support Rules, Rule 3.4(a).
[86] Section 34(1)(e).
[87] Sections 10 and 34(1)(f) as amended.
[88] Section 7 of the Miscellaneous Transitional Rules and Rule 7.4 of the Support Rules.
[89] Section 3(3)(b).
Issue (c): Therapy supports
The Applicant seeks funding for the following therapy supports:
(a)2 hours of occupational therapy, physiotherapy and speech therapy each week, for 50 weeks per year, with 1 hour per week for each provider’s travel;
(b)1 hour per week of hydrotherapy, with a therapist assistant, for 50 weeks per year; and
(c)1 hour each of music therapy and art therapy per fortnight, with 1 hour per week for each provider’s travel.
Occupational therapy, physiotherapy, and speech therapy
With regards to the frequency of occupational therapy, physiotherapy and speech therapy, the Agency asserts that:
The NDIS does not fund therapy for 50 or 52 weeks per year. Providers taking leave is automatically taken into account (being 4 weeks over a 12 month plan period). Where weekly therapy is determined to be a reasonable and necessary support for a participant, it is funded at a maximum of 48 weeks.
In support of this assertion, the Agency refers to a similar statement in the Agency’s review decision.[90] I was not able to locate any guideline or similar that included this restriction. The Agency also submits that there is a lack of evidence at to how many sessions KDKJ actually attended in the current or previous plans. However, I would note that this information would be in the Agency’s possession, having been recorded as part of the fund payment process.
[90] At page 172 of the joint hearing bundle.
However, I do agree with the Agency that KDKJ’s health will impact her attendance, including due to hospitalisation. This is consistent with the reports of KDKJ’s treaters who say:
Identified barriers and limitations for [KDKJ] during her current plan, restricting her goal achievement to a maximum were:
Hospitalisations/Illness – Over the course of this plan, [KDKJ] experienced multiple extended hospitalisations due to health and medical issues associated with her disability. Her hospital stays were often extended, and therapy could not be provided during these periods at the same intensity level. This served as a significant barrier to her therapy and hindered progress towards her goals.[91]
[91] Combined report by physiotherapist, occupational therapist and speech pathologist, 10 January 2024, page 97 of the joint hearing bundle.
AM provided oral evidence that therapy may also be cancelled when a therapist or member of their household was unwell, or when AM of AF were not available to attend. However, I note this is not entirely consistent with the report of KDKJ’s treaters who say that:
Provisions have been made so that when [KDKJ] or her therapy team may be unwell, online sessions are conducted to ensure continuity of supports and skill development consistency so that [KDKJ] does not miss out on this and continues enhancing her skills.[92]
[92] Combined report, 10 January 2024, page 91 of the joint hearing bundle.
AM also said that therapy was not usually run during school holidays or an annual shutdown. These therapies also cease when KDKJ is undertaking blocks of ‘Neurological and Physical Abilitation’ (NAPA) Centre sessions for 6 weeks per year.[93] On balance, I agree with the Agency that funding for weekly therapy for 42 weeks per year is realistic for KDKJ.
[93] See joint hearing bundle, pages 101 and 157.
With regards to the duration of these therapy sessions, the Agency agrees that two sessions per week for speech therapy and physiotherapy is reasonable and necessary. The Agency, however, says that there is insufficient evidence that two hours per week of occupational therapy is effective and beneficial or value for money. It is unclear to me why the Agency has reached a different position with regards to occupational therapy. The Agency submits that is no evidence as to the proposed frequency of OT sessions in 2025, given that the Applicant has commenced school. However, the Applicant’s parents have clarified that KDKJ has only commenced an Early Childhood Development Program for two hours, one day per week.
KDKJ’s treaters emphasise the benefits of intensive therapy, saying:
The benefits of intervention for children with diagnosed disabilities are well established, with research demonstrating that intensive programs, conducted over a longer duration offer the most benefit (Varvounis et al., 2020). As children show increased maintenance and generalisation of targeted skills when provided with frequent practice and opportunities for learning (Warren, Fey & Yoder, 2007), regular therapy will be instrumental in maximising [KDKJ’s] ability to reach her potential.
[KDKJ’s] progress attained across the period of this plan indicates that she is in a period of neuroplasticity and receiving increased intensity and frequency of all of her therapies and supports during this window is crucial for her to maximise her skill attainment and goal achievement.
In implementing this intensive program, the combined recommendation from KDKJ’s occupational therapist, speech pathologist and physiotherapist is that KDKJ receive thrice weekly, one-hour sessions from each of the allied health professionals. This is more than the two sessions per week sought by the Applicant’s parents. Based on this professional recommendation, I consider that there is sufficient information for me to conclude that two sessions per week of occupational therapy is likely to be effective and beneficial for KDKJ. I note that the Agency has not put forward any evidence that contradicts this recommendation.
With regards to provider transport, the Agency submits that the allied health sessions can be provided by telehealth, or that it is reasonable to expect KDKJ’s parents to provide transport to the allied health practitioners location. This is contrary to the recommendation in the combined report which says:
[KDKJ] primarily receives therapy interventions in the home environment due to the extensive equipment items that she requires for her medical and health management during all therapy sessions, as well as reducing infection and exposure to pathogens. It is also heavily documented throughout literature that learning within the home environment during therapy leads to carryover of skills from sessions to daily activities within the familiar and safe environment.[94]
[94] Joint hearing bundle, page 91.
This also appears to me to be contrary to the Agency’s Early Childhood Approach which says, ‘Best practice recognises children learn and develop in natural, everyday settings. This includes their own home …’.[95] Based on the above professional recommendation, and having regard to best practice, I consider that it is more effective and beneficial for KDKJ’s allied health professionals to conduct sessions in her home. There is also an increased risk to KDKJ if she was frequently attending a clinic for these treatments. I do not consider that it is reasonable to expect KDKJ’s parent to provide transport for KDKJ for six sessions per week. While parents of a 5-year-old will normally take their child to a health appointment, KDKJ’s appointments are far more frequent than is typical, and this is due to her disability and need for intensive early intervention. In these circumstances, it is reasonable for provider travel to be funded.
[95] NDIS Operational Guideline: Early childhood approach, 28 October 2024, page 3.
Hydrotherapy
The Agency submits that hydrotherapy and physiotherapy are working towards the same or similar goals using different methods (land-based for physiotherapy and water-based for hydrotherapy). As such the Agency submits that hydrotherapy is a duplication of physiotherapy and cannot be funded under Rule 5.1(c) of the Support Rules because it duplicates other supports delivered under alternative funding through the NDIS. I do not accept this submission.
There is considerable evidence before the Tribunal from KDKJ’s treating team that supports both land-based and aquatic physiotherapy, including from KDKJ’s orthopaedic surgeon,[96] physiotherapist,[97] and the combined report from her occupational therapist, speech pathologist and physiotherapist as part of the intensive program discussed above.[98] KDKJ’s hydrotherapist says that the specific benefits of aquatic physiotherapy are:
[96] Page 566 of the joint hearing bundle.
[97] Page 53 of the joint hearing bundle.
[98] Page 101 of the joint hearing bundle.
·Immersion is excellent for pain relief and relaxation. This is believed to be associated with the effects of water pressure and water temperature on nerve endings, reduced forces on joints, muscle relaxation and suppression of the sympathetic nervous system.
·Improved strength and flexibility, providing opportunities for developing fine and gross motor skills.
·Some children and young people will be able to experience independent movement with the support of the water – this is something they may never experience on land.
·There are also recognized benefits of reducing anxiety, improving quality of life and general wellbeing.[99]
[99] Page 55 of the joint hearing bundle.
The Applicant’s parents are correct that the Agency has not provided any opinion that contradicts the recommendations above. Hydrotherapy was specifically included in the 2021-22 and 2022-23 plans and I have had regard to this and the uncertainty that would be created if hydrotherapy was removed. I also consider that continuity of therapies is in KDKJ’s best interests as a child. I am satisfied that hydrotherapy is effective and beneficial for KDKJ and is not a duplication of land-based physiotherapy. I accept that a therapy assistant is appropriate to manage the risks to KDKJ including that the assistant has specific training in pool safety and rescue techniques and use of the pool equipment and transfer methods.[100] As with the other therapies, I agree with the Agency that funding for 42 weeks, as opposed to 50 weeks, is realistic for KDKJ.
[100] Page 323 of the joint hearing bundle.
Music and Art Therapy
The Applicant’s parents are seeking funding for 26 hours per year (1 hour per fortnight) for both art therapy and music therapy. The Agency submits that:
On the evidence before the Tribunal, it appears that art and music are activities that the Applicant enjoys. To the extent that they are activities that the Applicant enjoys as a 5 year old, they are the responsibility of the Applicant’s parents to provide through art classes and music lessons. [emphasis in original].[101]
[101] Respondent’s Closing Submissions, paragraph 240.
This submission from the Agency is concerning. I do not consider that a therapy which is based on enjoyable activities should be precluded from funding. The Agency’s Early Childhood Approach[102] incorporates the national guidelines on Best Practice in Early Childhood Intervention.[103] These national guidelines say that ‘Engaging children by capturing their interests creates opportunities to sustain learning, supports current competencies and facilitates development of new competencies’[104] and that ‘participation in meaningful activities builds on the intrinsic motivators of children and families and is, therefore, more likely to lead to success’.[105]
[102] NDIS Operational Guideline: Early childhood approach, 28 October 2024.
[103] National Guidelines: Best Practice in Early Childhood Intervention, Early Childhood Intervention Australia (ECIA) Page 12.
[105] Page 19.
The lived experience KDKJ’s parents is that KDKJ ‘thrives’ in music and art therapy.[106] In my view, the fact that KDKJ enjoys engaging in music and art therapy is likely to increase the effectiveness and benefits of the therapy. These therapies are recommended and provided by appropriately qualified therapists who have provided reports at pages 59, 128 and 133 of the joint hearing bundle. Music and art therapy were also specifically included in the 2021-22 and 2022-23 plans and I consider this is relevant when having regard to the operation of pervious plans, the need to provide her family with certainty in relation to the supports provided, and KDKJ’s best interests in minimising disruptions to her therapies.
[106] Page 340 of the joint hearing bundle.
The Agency also submits that music and art therapy duplicate the capacity building supports of physiotherapy, occupational therapy and speech therapy and cannot be funded pursuant to Rule 5.1(c). I agree with the Agency that music and art therapy are not specifically referred to as part of the intensive program in the combined report from KDKJ’s occupational therapist, speech pathologist and physiotherapist. Rather than the thrice weekly sessions recommended, the Applicant’s parents are choosing to include alternating weekly art and music therapy sessions. I consider that this is consistent with the principles relating to participant plans in allowing the Applicant’s parents to exercise choice and control,[107] and select tailored and flexible responses to KDKJ’s goals and needs.[108] However, as with the other therapies I consider that 42 sessions per year (21 sessions each of art and music therapy) is realistic for KDKJ.
[107] Section 31(g).
[108] Section 31 (j).
Conclusion on therapy supports

I am satisfied that continuing occupational therapy, physiotherapy, speech therapy, hydrotherapy, music therapy and art therapy are reasonable and necessary supports for KDKJ. These therapies are necessary to address KDKJ’s needs arising from impairments in relation to which she meets the early intervention requirements.[109] The therapies assist KDKJ to pursue her goals,[110] and to undertake social participation.[111] Reducing these therapies would impact the continuity and effectiveness of these therapies and this would not be in KDKJ’s best interests as a child. I also consider that a therapy assistant during hydrotherapy sessions is required to protect KDKJ from harm.[112] I do not consider that provision of these therapy supports will impact the financial sustainability of the scheme.[113]
[109] Section 34(1)(aa).
[110] Section 34(1)(a).
[111] Section 34(1)(b).
[112] Section 5(f).
[113] Section 3(3)(b).
While the therapies represent value for money, I am not satisfied that funding 50 weeks of therapies represents value for money. Taking into account KDKJ’s participation in six weeks of NAPA intensive therapy, provider shutdowns, and cancellation due to ill-heath, I consider that providing funding sufficient for 42 weeks of these therapies per year represents value for money.[114] The therapies are recommended and provided by appropriately qualified professionals and are likely to be effective and beneficial for KDKJ.[115] Funding for provider travel should be included as it is not reasonable for KDKJ’s parents to provide this level of transport. KDKJ’s therapy needs are substantially greater than other 5-year-olds and these intensive therapies are due to her disability.[116] Funding for provider travel takes into account what it is reasonable for families to provide.[117] These therapies are NDIS supports for KDKJ under Items 17 and 34 of Schedule 1 of the Transitional Rules.[118] The therapies are not excluded under Item 12 of Schedule 2 of the Transitional Rules. I am satisfied that these therapies are more appropriately funded through the NDIS, and not more appropriately funded through the health system.[119] Sufficient funding will need to be included for the therapists to prepare reports on the outcomes achieved for KDKJ. I do not consider that provision of the therapy supports will impact the financial sustainability of the scheme.[120]
[114] Section 34(1)(c).
[115] Section 34(1)(d).
[116] Support Rules, Rule 3.4(a).
[117] Section 34(1)(e).
[118] Sections 10 and 34(1)(f) as amended.
[119] Section 7 of the Miscellaneous Transitional Rules and Rule 7.4 of the Support Rules.
[120] Section 3(3)(b).
Procedural concerns
KDKJ has been before the Tribunal each year for the past four years in the matter numbers: 2020/4853; 2021/4230; 2022/1240; and 2023/0324. Each of these matters were resolved during the Tribunal’s alternative dispute resolution (ADR) processes and were finalised by consent agreements under section 42C of the AAT Act. From the outset of this current application, KDKJ’s parents wished to proceed directly to a hearing to seek a determination from the Tribunal rather than engage in ADR once more. I would note here that, to the extent that KDKJ’s parents hope that a determination from the Tribunal will be effective in ensuring that the Agency does not reduce funding in future plans, it is important for KDKJ’s parents to understand that a decision from the Tribunal is not binding with respect to future decisions of the Agency.
I am concerned that the Agency did not comply with directions of the Tribunal on two occasions in this matter. On the first occasion, the parties were directed to provide hearing certificates on or before 31 May 2024. The Agency’s hearing certificate was provided late and was incomplete. The Tribunal needed to hold a non-compliance directions hearing on 21 June 2024 to address this non-compliance. On the second occasion, the Agency did not comply with the direction to provide an independent medical expert report on or before 31 August 2024. A further non-compliance directions hearing was held on 25 September 2024.
I am also concerned that the Agency introduced the issue of attribution in section 34(1)(aa) in the week prior to the hearing. While this section was introduced as an amendment two weeks prior to the hearing, it is not actually a new issue. As the Explanatory Memorandum to the Back on Track Amendments states:
This amendment reflects the Agency’s current operational guidelines and will provide clarity to participants and other service systems about what supports will be funded through the NDIS. It will not require participants to repeatedly prove their disability.
Based on the Agency’s existing guidelines, it was open to the Agency to have raised the issue of attribution at any time in these proceedings or during their internal decision-making and internal review processes. The Agency should have done so at a much earlier point in time. This would have allowed the parties to gather information and make submissions addressing this issue earlier. Bringing attribution into issue the week prior to the hearing caused multiple months of delay before the hearing could resumed to address this issue.
In my view, these non-compliances and delays fall well short of the Agency’s duty to assist the Tribunal, which is set out in section 56 of the ART Act. As I discussed in Brown,[121] and raised with the Agency in this matter, the Attorney-General’s Department has provided the following guidance to decision-makers on their duty to assist the Tribunal:
[121] Brown and National Disability Insurance Agency [2024] AATA 3318, [55] to [59].
The key point … is that, rather than seeking to defend their original decision in the
Tribunal, agencies need to focus on assisting the Tribunal to arrive at the correct or
preferable decision.
… The ‘duty to assist’ recognises that there may be additional actions agencies can
take in Tribunal proceedings to ensure the process runs smoothly and the right
outcome is reached – and that agencies have a duty to take these actions.
This recognises the position of the Tribunal in reviewing the decision; that is, it
considers the matter afresh ‘in the shoes’ of the original decision maker. This is in
contrast to court litigation, which is adversarial and based on the review and defence
of decisions.
Assisting the Tribunal to arrive at the correct or preferable decision may involve
taking steps such as:
• making information easily available to the Tribunal
• avoiding delays
• presenting new material where relevant, and
• providing specialist evidence when it may assist.[122]
[122] Office of Legal Services Coordination: Guidance Note 1 The Administrative Appeals Tribunal Act 1975: Obligation to assist the Tribunal >
In my assessment, the Agency’s conduct of this matter was more consistent with an adversarial approach which was directed to defending their decision, rather than focussing on assisting the Tribunal. As mentioned earlier, I did not find the Agency’s submissions on the best interests of the child helpful. By way of another example, when the Applicant’s parents resisted arrangements for an independent assessment of KDKJ, the Agency decided not to proceed with an assessment on-the-papers. Noting the submissions made by the Agency regarding RN’s lack of independence, it would have assisted the Tribunal to have a properly independent expert opinion. Considerable written records should have been able to be obtained to support an on-the-papers assessment, regardless of whether the Applicant’s parents wished to provide nursing shift notes or not. I would also suggest that the Agency should consider whether their conduct in this matter was consistent with good-practices in taking a trauma-informed approach and supporting participants and their families in all their dealings with the Agency.[123]
[123] Section 4(9).
The Applicant’s parents also have a duty to assist the Tribunal, although this is not to the same level as required by the Agency. I do have some concerns with the Applicant’s parents’ conduct in this matter also. It would have assisted the Tribunal better for the nurse shift notes to be provided and, in my view, the Agency’s proposal for these to be copied at an NDIS office at the Agency’s expense was a reasonable one. Also, the Applicant’s parents’ suggestion that they would only agree to an independent assessment of KDKJ if the assessor spent 168 hours at the family home to observe a week of KDKJ’s care was not a reasonable condition. It would have assisted the Tribunal to have this independent assessment. An assessment which engaged with each of the registered nurses and observed an example of each shift might have been a reasonable middle ground. I would encourage the Applicant’s parents to consider a more co-operative approach in their future dealing with the Agency. I appreciate that the Applicant’s parents are impacted by significant trauma and that their communications will be impacted by their daily anxiety and stress, compounded by these extended and repeated disputes with the Agency.
I also observe here that there does appear to be an inherent tension in the circumstances where the Agency wishes to fund services in a delegated model, but the delegate in this model does not agree that this delegation is appropriate. There needs to be a mechanism to resolve this tension, but this mechanism does not seem to be provided for in the current guidelines. A second opinion from a more senior practitioner is a logical option to try to address this.
The CEO is empowered to request such a second opinion under section 36 of the NDIS Act which allows the CEO to request that a participant undergo an assessment or medical examination and to request a participant, or another person, provide information that is reasonably necessary in deciding whether to approve an SPS. In certain circumstances, failing to provide information or undergo an assessment can result in the suspension of a participant’s SPS. As indicated earlier, before the Agency makes a decision to transition a participant’s care to a delegated model (at least in situations where the participant is a child and risks to the child have been identified) the Agency should seek additional information to satisfy itself that this transition is safe. Section 36 gives the Agency the tools it requires to deal with a situation where a participant does not wish to provide further information or undergo an assessment. It is more appropriate for the Agency to exercise these powers during their original and internal review decision-making processes rather than to try an address these information gaps once the matter is before the Tribunal.
DECISION
The decision of the Agency under review is set aside and remitted for reconsideration with the directions that the Applicant’s statement of participant supports includes sufficient funding for:
(a)registered nurse supports to continue and be increased to seven nights per week of active overnight support;
(b)two sessions each per week of physiotherapy, occupational therapy and speech therapy for 42 weeks per year;
(c)one session per week of hydrotherapy, with a therapist assistant, for 42 weeks per year;
(d)one session per fortnight of music therapy, for 21 weeks per year;
(e)one session per fortnight of art therapy, for 21 weeks per year;
(f)provider travel for therapies to be conducted at the Applicant’s home; and
(g)report writing by the Applicant’s registered nurses and treating practitioners as required.
The statement of participant supports is also to include a reassessment date of 12 months after implementation of the new plan following this decision. The remaining aspects of the statement of participant supports, including plan management, remain unchanged.

Dates of hearing: 29, 30, 31 October 2024 and 24 February 2025

Date final submissions received: 26 March 2025

Representative for the Applicant: Applicant’s Mother and Father

Counsel for the Respondent:
Ms M Fisher, 9 Wentworth Chambers

Solicitors for the Respondent: Ms A Barac, Maddocks Lawyers

Dates of hearing:	29, 30, 31 October 2024 and 24 February 2025
Date final submissions received:	26 March 2025
Representative for the Applicant:	Applicant’s Mother and Father
Counsel for the Respondent:	Ms M Fisher, 9 Wentworth Chambers
Solicitors for the Respondent:	Ms A Barac, Maddocks Lawyers