MCCT and Chief Executive Officer of the National Disability Insurance Agency (NDIS) - [2025] ARTA 1219

MCCT and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 1219 (27 June 2025)
Applicant:MCCT
Respondent: Chief Executive Officer of the National Disability Insurance Agency
Tribunal Number: 2024/7106

Tribunal:Senior Member K. Parker
Place:Melbourne
Date:27 June 2025

Decision:The Tribunal affirms the decision under review.

.................................[sgd].......................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – plan review – child participant –applicant’s mother also an NDIS participant – applicant’s parents are separated and they share the care of the applicant – application for review lodged by the applicant’s grandmother – grandmother applied to the NDIA in 2024 for a determination to be made to make her the child representative of the applicant – grandmother does not live with the applicant – NDIA has not made any determinations under s 74(1)(b) or s 75(3) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) – applicant’s father has “parental responsibility” for the applicant as defined in the NDIS Act and is entitled to act as “child representative” of the applicant alongside his mother to jointly represent the applicant in the hearing – initially, eight supports and the plan management specifications in the applicant’s NDIS plan were in dispute – by the end of the hearing, only one support remaining in dispute, being a request by the applicant’s grandmother and mother for increased hours of support worker assistance (‘SW Assistance Support’) – whether the SW Assistance Support is a “reasonable and necessary support” within the meaning of the NDIS Act – Tribunal affirms the Decisions Under Review
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)
Cases
McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520
National Disability Insurance Agency v McGarrigle (2017) 157 ALD 458
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852
NDIS Rules
National Disability Insurance Scheme (Becoming a Participant) Rules 2016
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013
Secondary Materials
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2022
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008)
NDIA Operational Guidelines entitled “Principles we follow to create your plan” (updated on 7 April 2025) - OG - Principles we follow to create your plan.pdf
NDIA Operational Guidelines entitled “Reasonable and necessary supports” (updated on 28 March 2025) - OG - Reasonable and necessary supports 2025-03-28.pdf
NDIA Operational Guidelines entitled “Assistive Technology Explained” (current as of 30 January 2023, also showing date of 5 June 2025) – Assistive technology explained
NDIA Operational Guidelines entitled “Assistive technology repairs, maintenance and replacement” (current as of 31 January 2023, also showing date of 5 June 2025) – Assistive technology repairs, maintenance and replacement
NDIA Operational Guidelines entitled “Urgent AT repairs” (current as of 31 January 2023, also showing date of 5 June 2025) - Urgent AT repairs
NDIS Pricing Arrangements and Price Limits - Pricing arrangements | NDIS
Statement of Reasons
INTRODUCTION

The Applicant, MCCT, is a five-year-old boy who lives with disabilities arising from impairments as a result of having the condition of autism spectrum disorder (‘ASD’) and other conditions. MCCT is a participant in the National Disability Insurance Scheme (‘NDIS’) which is administered by the National Disability Insurance Agency (‘NDIA’) under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’).
On 17 September 2024, MCCT’s grandmother (‘GM’) lodged an application for review on behalf of MCCT with the Administrative Appeals Tribunal (‘AAT’).[1] On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’) following the abolition of the AAT. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, applications for review to the AAT that were not finalised before 14 October 2024, are to be continued and finalised by this Tribunal. Anything done in relation to this proceeding before 14 October 2024, is taken to have been done by this Tribunal. Neither party disputed that this Tribunal has authority to deal with the present application.
[1] T-Documents, T1. The ‘T-Documents’ are a set of documents lodged by the NDIA under s 37 of the now repealed Administrative Appeals Tribunal Act 1975 (Cth).
The Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), operating in conjunction with s 103 of the NDIS Act.
As outlined in more detail below, this application seeks review of decisions made about MCCT’s statement of participant supports forming part of his successive NDIS plans. At the commencement of the hearing, there were eight supports in dispute. By the end of the hearing, there was only one support remaining in dispute, specifically, a request by MCCT’s grandmother (‘GM’) for an increase in funding for support worker assistance for MCCT from the existing approved level of 10 hours per week, to an increased level of 10 hours per day on the days MCCT is in the care of his mother (‘M’). Initially, there was also an issue about the management of the NDIS funding in MCCT’s NDIS plan. By the end of the hearing, this was no longer an issue as explained in further detail below.
For the reasons set out in this Statement of Reasons, the Tribunal is not satisfied that the request to increase the hours of support worker assistance for MCCT from 10 hours per week to 10 hours per day on the days that MCCT is in the care of M, is a “reasonable and necessary support” within the meaning of the NDIS Act. The Tribunal affirms the Decisions Under Review as referred to in paragraph [29] below.
BACKGROUND
Living circumstances and informal supports
MCCT’s parents became separated not long after the birth of MCCT. There is a high degree of acrimony between M and MCCT’s father (‘F’) and between GM and F. F told the Tribunal at the hearing that GM had asked him to leave M’s home after MCCT was born.
MCCT lives 90 per cent of the time with his M who also has significant disabilities of her own, including the condition of ASD. They live in private rental accommodation. M is also an NDIS participant. Both MCCT and M receive NDIS-funded supports during times MCCT is living with M. M is not partnered. MCCT does not have any siblings.
MCCT also lives with his F for the remaining 10 per cent of the time. During this time, MCCT does not have access to any NDIS-funded supports. Before the hearing, F said he has never had access to MCCT’s NDIS plans. At the hearing, F explained to the Tribunal that in six months’ time, under a new parenting arrangement (recently signed by MCCT’s parents), MCCT will stay with F for three days and two nights each week, specifically, F will care for MCCT overnight every Thursday and Friday night.
A copy of the relevant Federal Circuit and Family Court of Australia Consent Orders were lodged with the Tribunal on 28 May 2025, setting out the current and future care arrangements for MCCT. These Consent Orders are not sealed but they were signed by M and F on 21 May 2025 (‘Consent Orders’).[2]
[2] Exhibit THD1.
F participated in the hearing of this application and gave evidence that MCCT does not require any NDIS supports while he is F’s care.
GM lives in her own home (having four bedrooms and a study), with one of her adult daughters. GM informed the Tribunal she separated from her husband (MCCT’s grandfather, aged 57) over a decade ago, and that he lives elsewhere.
GM gave evidence that because of her own health issues, she is not able to travel to the home of MCCT and M, or to provide care to MCCT and M (other than “emotional support”). When asked what those health issues were, GM said that she has diabetes, problems with her neck, back and shoulders, her vision “comes and goes”, and that she has high cholesterol. GM also said that she has six other children to care for. GM cited their ages as ranging between 20 and 29. GM was asked whether any of her other children have a disability to which she said “No”. The Tribunal finds that GM’s six other children (apart from M) are all adults and able to adequately care for themselves. However, M, with her current disabilities, requires GM’s attention, prioritisation and assistance.
GM is 50 years of age. GM was asked what had caused her medical conditions. She confirmed that they were not caused by any injury. GM was previously obese and underwent bariatric surgery. As a result of this surgery, GM is no longer obese. GM attributed her health conditions to the fact that she has raised seven children. When asked whether GM’s husband had helped her, she responded “Not really”.
GM gave evidence that she is unemployed. GM is receiving the Carer Allowance ($159.20 per fortnight) and Carer Payment ($1,051.30 per fortnight), in respect of M. GM has not informed Services Australia that M (and MCCT) no longer lives with her or that they are being cared for by support workers and not GM. GM told the Tribunal she intended to contact Services Australia in the week commencing 23 June 2025, to advise them about those matters.
GM does not drive (a car).
The Tribunal accepts that GM has physical problems relating to the degeneration of her cervical spine and that she experiences ongoing issues relating to her vision. GM has required eye surgery in the past and may need to have further eye surgery.
Despite these medical problems, the Tribunal observed that GM was able to move about easily and actively throughout the course of the hearing which took place by video. GM was also able to maintain concentration throughout the course of the four-day hearing. Despite GM’s medical conditions, the Tribunal is not persuaded that GM lacks capacity, or the time, to be able to provide a reasonable level of informal care to both M and, even if it to comprise passive supervisory duties, when M and MCCT joins GM at her home for lunch or dinner (which is an existing routine according to GM’s evidence), whether that be in GM’s home or in M’s home (both being in close proximity).
Based on GM’s evidence, M and MCCT have a number of family members who live nearby. GM’s evidence is that for varying reasons, those family members, including GM, are limited in terms of the amount of support they can provide to MCCT, or to M to help her with the care of MCCT. MCCT has grandparents, and numerous aunts, uncles and cousins, with whom he will spend some time, during family gatherings. MCCT is particularly fond of some of his uncles. F also gave an example at the hearing, of MCCT being able to recognise and display affection towards his paternal grandfather. F gave evidence that MCCT spends social time with members of F’s family, without the need for assistance from others or without MCCT experiencing behavioural difficulties in this type of setting.
Even when MCCT and M visit at GM’s home for family meals for two or three hours, GM gave evidence that M’s paid support worker will be with them. The Tribunal considers this to be unnecessary.
Formal parenting care arrangements under the Consent Orders
Under the Consent Orders, MCCT is to live with M, and that:
(a)in the period 30 May 2025 to 12 November 2025, MCCT is to spend time with F from 2pm each Friday to 5pm each Saturday and that F is permitted to attend MCCT’s weekly OT sessions; and
(b)in the period 13 November 2025 to 30 May 2026, MCCT is to spend time with F from 2pm each Thursday to 5pm each Saturday.
MCCT’s Goals
The goals identified by GM and M for MCCT in his Current SOPS are the same as the goals stated in his Fourth SOPS.[3] Specifically, GM and M would like MCCT to continue to improve his language and communication skills, social development, cognitive development, physical development, emotional development, and his self-care skills.
Current NDIS-funded supports approved in M’s and MCCT’s respective NDIS plans and the actual NDIS supports being provided to them
[3] Exhibit R10: MCCT’s Current SOPS, pages 14-16.
As mentioned above, there are two NDIS participants in MCCT’s household, that is, MCCT and M.
M’s current NDIS plan commenced on 17 June 2025 and is a six month plan (‘M’s Current NDIS Plan’). Under M’s Current NDIS Plan, M has access to funding of $184,162.74 over a six month period for “Home and Living” supports, which may be used by M to engage supported independent living supports (‘SILS’) (being support worker assistance paid at the SIL rate under the NDIS Pricing Arrangements and Price Limits), to help M to “live as independently as possible” and which includes “help or supervision with daily tasks, like personal care or cooking meals”.[4] In addition, M has access to funding of $8,757.07 over a six month period to pay for “Core Flexible” supports for “Assistance with Social, Economic and Community Participation” (defined in the plan as being “Supports that assist with or supervising you to engage in community, social, recreational, or economic activities. These supports can be provided in a range of environments, such as in the community or a centre. Support to help join in community, social and civic activities”), and “Consumables”.[5]
[4] Exhibit R11: M’s Current NDIS Plan.
[5] Ibid.
The NDIA informed the Tribunal that the above funding will provide M with 54 hours per week of individual support worker assistance during the day, inactive overnight support worker assistance for 8 hours each night, and 30 hours per week for other support worker assistance, including when M wishes to access the community.
Irrespective of the amount of available funding in M’s Current NDIS Plan, until now, M has received one-to-one support worker assistance 24 hours per day, every day of the week, including active overnight supports. This had resulted in a history of repeated early depletion of funding from M’s NDIS plans, despite this funding being plan managed by M’s plan manager, namely, Ms Nahid Khalil from Alfadi Giving Hands and Aged Care Pty Ltd (‘Alfadi Giving Hands’). Upon depletion, the NDIA has reinstated the funding in M’s NDIS plans on a number of occasions to ensure that MCCT (and M) are not left without ongoing NDIS supports.
In M’s NDIS plan dated 4 February 2025, for the first time, the NDIA imposed new monthly caps on the amount of funds which may be spent on Home and Living supports and Core Flexible supports over the life of this and successive NDIS plans approved for M.[6]
[6] For instance, see Exhibit R11.
A similar situation has arisen in respect of MCCT’s NDIS plan. MCCT’s current NDIS plan commenced on 3 June 2025 and is a six month plan (‘MCCT’s Current NDIS Plan’).[7] Under MCCT’s Current NDIS Plan, M has access to funding of $37,861.72 over a six month period to pay for “Core Flexible” supports for “Assistance with Daily Life”, “Assistance with Social, Economic and Community Participation”, “Consumables”, and “Transport”.
[7] Exhibit R10.
At the hearing, the NDIA informed the Tribunal that this level of funding will provide MCCT with 10 hours of support worker assistance per week.[8]
[8] See also NDIA HTB O3/75: Plan Breakdown of MCCT’s Third SOPS.
Irrespective of the amount of available funding in MCCT’s NDIS plans, until now, MCCT has received one-to-one support worker assistance for approximately 10 hours per day. This has resulted in a history of repeated early depletion of funding from MCCT’s NDIS plans despite them being under the plan management of Ms Khalil from Alfadi Giving Hands. Upon depletion, the NDIA has reinstated the funding in MCCT’s NDIS plans on a number of occasions.
In MCCT’s SOPS dated 26 May 2026, for the first time, the NDIA imposed monthly caps on the amount of funds which may be spent on Core Flexible supports for MCCT over the life of the plan.[9] Those monthly caps have been replicated for this budget of funding in MCCT’s current SOPS.[10]
[9] Exhibit R9.
[10] Exhibit R10.
Decisions Under Review
GM, on behalf of MCCT, seeks review of a decision made by a reviewer under s 100 of the NDIS Act on 3 September 2024 (‘Internal Review Decision’),[11] in respect of a decision made on 21 May 2024 by a delegate of the Chief Executive Officer of the NDIA to approve a statement of participant supports (‘SOPS’) for MCCT.[12] Subsequent decisions were made by delegates of the NDIA to approve successive SOPS for MCCT on:
(a)10 September 2024 (‘Second SOPS’);[13]
(b)4 February 2025 (‘Third SOPS’);[14]
(c)26 May 2025 (‘Fourth SOPS’);[15] and
(d)3 June 2025 (‘Current SOPS’).[16]
[11] T-Documents, T2/124-138.
[12] T-Documents, T11/196-218.
[13] T-Documents, T12/219-241.
[14] NDIA’s Hearing Tender Bundle (‘NDIA’s HTB’) O1/51-74.
[15] Exhibit R9.
[16] Exhibit R10.
By operation of s 103(2) of the NDIS Act, each of the decisions to approve the Second SOPS, Third SOPS, Fourth SOPS and the Current SOPS, are also the subject of review in this application. The Tribunal will refer to the Internal Review Decision and the subsequent decisions to approve the Second SOPS, Third SOPS, Fourth SOPS and the Current SOPS, collectively, as the ‘Decisions Under Review’.
Evolution of the supports/issues in dispute throughout the proceeding and hearing
During case management directions hearings, it was difficult to gain clarity from GM and her lawyer, precisely what supports were being requested on behalf of MCCT. Accordingly, in order to introduce some structure to this proceeding, on 3 March 2025, the Tribunal made an order under s 53 of the ART Act (‘Section 53 Order’) to confine the issues and evidence in this matter to a list of eight different supports in dispute and a further issue about how the funding in MCCT’s NDIS plan should be managed.
Initially, GM, on behalf of MCCT, had requested funding for nine different supports, specifically:
(a)consumables in the amount of $2,730.52;
(b)assistive technology (‘AT’) in the amount of $2,000 for repairs and maintenance of existing AT;
(c)52 hours of physiotherapy services per annum;
(d)52 hours of occupational therapy services per annum;
(e)52 hours of speech therapy services per annum;
(f)52 hours of behaviour support intervention per annum;
(g)$11,639.40 for early childhood intervention therapy; and
(h)increased hours of support worker assistance (on a 1:1 basis) to assist MCCT with activities of daily living including self-care, for 10 hours per day, for every day of the year.
There was also previously an issue between the parties about the management of MCCT’s NDIS funding, due to a history of repeated early depletion of funding from MCCT’s NDIS plans (see section below under the heading “History of early depletion of funding from MCCT’s NDIS plan”).
As this matter progressed, the Parties informed the Tribunal, in effect, that there was no longer an issue between them about how the funding in MCCT’s NDIS plan should be managed. GM indicated that she is content with the plan management specifications as set out in MCCT’s Current SOPS, including the imposition of monthly caps on expenditure of certain budgets of NDIS funding. Further, the NDIA reached a state of satisfaction that some of the supports initially in dispute between it and GM met the “reasonable and necessary supports” criteria under the NDIS Act and should be funded under MCCT’s NDIS plan. Accordingly, the Tribunal progressively revoked and updated the Section 53 Order so that it would refer, successively, to the issues that remained in dispute between the Parties.

Specifically, two days prior to the commencement of the hearing, the NDIA approved a new SOPS for MCCT (that is, the Fourth SOPS) and added a new capacity building support for MCCT, namely, 90 hours of behavioural support intervention. On the first day of the hearing, GM confirmed that the addition of this support to MCCT’s SOPS had adequately addressed GM’s request for behavioural support intervention for MCCT. Accordingly, this support is no longer in issue between the Parties.
By the end of the first day of the hearing, the NDIA informed the Tribunal that it also accepted that “consumables”, up to a total cost of $2,730.52, as requested by GM, is a “reasonable and necessary support” for MCCT under the NDIS Act. This support is no longer a support in dispute between the Parties and funding for this support is now included in MCCT’s Current SOPS.
By the end of the second day of the hearing, the Tribunal identified by its own calculations that the NDIS capacity building funding already approved and included in MCCT’s “Improved Daily Living Supports” budget in his Fourth SOPS in the sum of $40,116,[17] was more than enough to cover the cost of the following requested therapeutic interventions for MCCT:
(a)52 hours per annum of speech therapy;
(b)52 hours per annum of occupational therapy (‘OT’);
(c)fortnightly sessions of physiotherapy;
(d)fortnightly sessions of exercise physiology; and
(e)weekly (45-minute) sessions with an early childhood educator.
[17] Exhibit R9: MCCT’s Fourth SOPS at page 7. This support was replicated in MCCT’s Current SOPS.
At the hearing, the NDIA confirmed that the “Improved Daily Living Supports” funding of $40,116 may be expended by MCCT, flexibly, on any of the therapeutic interventions listed in subparagraphs [39(a)] to [39(e)] above. At the hearing, GM confirmed that she understood that the existing capacity building funding of $40,116, used flexibly, would presently allow for MCCT to access all of those therapeutic supports at the levels GM was requesting on behalf of MCCT. The Parties agreed that this meant those supports are, in fact, not in dispute between the Parties.
By the end of the second day of the hearing, the Tribunal made a new Section 53 Order updating the confinement of the issues and evidence in this proceeding to whether the following two supports are “reasonable and necessary supports” under the NDIS Act:
(a)$2,000 per annum to pay for future repairs and maintenance which might be required in the next 12 months to MCCT’s Augmented and Alternative Communication (‘AAC’) device (‘AAC Repairs Support’); and
(b)10 hours of support worker assistance per day for six days of the week for the next six months and thereafter, 10 hours of support worker assistance per day for the times when MCCT is in M’s care (‘SW Assistance Support’).
During the third day of the hearing, the Tribunal asked GM to state when she had purchased the AAC device for MCCT. GM’s memory was unclear but she indicated she had purchased in about April 2024 or May 2024. GM confirmed that the AAC device had not, as yet, been broken or damaged. GM gave evidence that MCCT used the AAC device about three or four times per day, for about five or six minutes at a time. GM said that “they show him pictures” and he sees an animal and tries to say its name. GM said that MCCT does not like the AAC device and that if they force him to work on it, he will “become aggressive”.
The NDIA arranged for Ms Lee Davids, Occupational Therapist (‘OT’), to undertake a comprehensive functional capacity assessment of MCCT. In Ms Davids’ report issued on 17 February 2025 (‘Ms Davids’ Report’), she stated that MCCT’s caregivers had told her that MCCT does not use the AAC device.[18] Specifically, Ms Davids stated as follows:
[MCCT] already has the speech pathology recommended augmented communication device but does not use it. His caregivers report he ‘won’t accept’ it, and they do not use it with him. When asked why the device was recommended over his iPad for communication, given he uses it all the time, his grandmother states she does not know. She says she thinks that the communication app may not have been compatible with the iPad.
MCCT’s carer, L, was asked to demonstrate the use of the communication device with him. L and M used it with him only briefly before he disengaged and ran into the TV room. The icons on the screen were noted to be in writing and very small font. When asked whether it could be enlarged, they said it could not.
[18] NDIA’s HTB, R3/8-44.
When this statement from Ms Davids’ Report, was put to GM at the substantive hearing, she disagreed with it.
When GM was asked to state the basis upon which she anticipated there would be repairs and maintenance required to MCCT’s AAC device over the next 12 months, GM did not provide a direct answer. Instead, GM said that MCCT’s treating paediatrician, Dr Sam Nassar, and MCCT’s speech pathologist had told GM that she should ask for funding for the AAC Repairs Support.
The Tribunal called for production of the tax invoice for the AAC device. It was duly produced by GM. The tax invoice showed that the following AAC device was purchased for MCCT on 5 September 2024: “Liberator Rugged 8 – LAMP Words for Life” and “Language Software: LAMP Words for Life Edition”, at a total cost was $6,495.[19] It came with a “Liberator Rugged 8 Frame”, Small Carry Bag and a Shoulder Strap (for $49.00). The date of the invoice shows that MCCT has owned the AAC for just over nine months.
[19] Exhibit A2.
On the tax invoice for MCCT’s AAC device, it states as follows:[20]
Warranty: Liberator provides a comprehensive 3-Year Warranty on all purchased voice-output communication devices, including physical damage. All other Liberator products are covered under a basic 1-Year warranty that does not include physical damage.
[20] Ibid.
On the last day of the hearing, the Tribunal referred to this statement and asked GM to confirm whether it was her understanding that MCCT’s AAC “Liberator” device came with a three-year warranty including in respect of physical damage. GM answered in the affirmative. GM was asked to confirm whether, in light of this, she was still requesting $2,000 for repairs and maintenance of the AAC device over the next 12 month period. GM answered “No, not needed”. GM agreed that the only issue remaining in dispute between the Parties was whether MCCT should receive the SW Assistance Support.
The Tribunal notes that the NDIA provided confirmation during the hearing that if the AAC device was to break, and funding was required to fix it (for instance, the manufacturer did not honour the warranty), MCCT’s representative could seek a variation to MCCT’s NDIS plan to have funding for the repairs or maintenance added to it.
The Tribunal notes that NDIA-issued operational guidelines entitled “Assistive technology explained”, states as follows:
(a)AT between $1,500 and $15,000 if classified as “mid cost assistive technology” (refer page 2);
(b)“We’ll include funding for repairs and maintenance in your plan for all assistive technology items that you are currently using” (refer page 1); and
(c)“Even though your new assistive technology has a warranty, we’ll still include funding for maintenance and repairs you may need due to things like accidental damage, which will generally not be covered by your warranty” (refer page 2).
The Tribunal is bound to consider policy guidance and should follow it, provided that it is not inconsistent with the relevant legislative scheme. On this occasion, the Tribunal has decided to depart from the NDIA’s policy guidance of automatically providing funding for repairs and maintenance of AT, because the Tribunal does consider this policy guidance to be consistent with the legislative scheme. The manufacturer of the “Liberator” AAC device clearly states that the manufacturer’s warranty includes cover for physical damage to the product for a period of three years following the purchase date. The AAC device is fairly new and even based on GM’s own evidence, the extent to which MCCT uses this device is minimal. GM gave evidence that there have been no breakages, accidental or otherwise, of the AAC device over the last nine-month period. The Tribunal finds that the chance of the “Liberator” AAC device breaking during the warranty period which extends for another two years and three months and the manufacturer refusing to repair it (in light of the express warranty cover for physical damage), is extremely remote. On this basis, the Tribunal is not satisfied that the provision of funding in anticipation of possible repairs unable to be fixed under the manufacturer’s warranty, is a “reasonable” support under the NDIS. During the hearing (as mentioned above), appropriately, GM conceded this support was not needed.
Accordingly, by the end of the substantive hearing, the sole support remaining in dispute, upon which the Tribunal must decide, is whether the SW Assistance Support is a “reasonable and necessary support” for MCCT.
The NDIA’s overarching position is that M is been provided with a substantial level of funded support worker assistance each day under her NDIS plan, which can be applied to assist M to help her to care for MCCT, in addition to the 10 hours per week of support worker assistance provided directly to MCCT under his NDIS plan. The NDIA contends that this is adequate to meet MCCT’s disability-related support needs.
History of early depletion of funding from MCCT’s NDIS plans
In the NDIA’s Statement of Facts, Issues and Contentions lodged with the Tribunal on 6 May 2025 (‘NDIA’s SFIC’), the NDIA raised concerns about Alfadi Giving Hands’ involvement in the over-utilisation of MCCT’s NDIS funds.[21] The Tribunal enquired of the NDIA whether it had made a referral (for investigation) of Alfadi Giving Hands at any stage to the NDIS Safeguards and Quality Commission. This Commission is responsible for the regulation of NDIS services providers, including its plan managers. The NDIA advised the Tribunal before and at the hearing, that it had not done so. On the third day of the hearing, the NDIA informed the Tribunal, when asked, that the NDIA was not seeking any direction to the effect that a provision should be contained in MCCT’s SOPS to the effect that MCCT’s NDIS funding should not be expended on any services provided by Alfadi Giving Hands.
[21] NDIA’s SFIC, paragraph [66].
The Tribunal notes that at least while this matter has been on foot before the Tribunal, MCCT’s plan manager and support coordinator, Ms Nahid Khalil of Alfadi Giving Hands, at the request of GM, has arranged for MCCT to be provided with 10 hours of support worker assistance per day when he is in M’s care. Ms Nahid Khalil is currently a Director, Secretary and a shareholder of Alfadi Giving Hands.[22] Ms Khalil holds a 25% share in the ownership of this company.[23] Nahid Khalil resides with Moawad Salama Khalil, who owns a further 50% in this company.[24] The remaining 25% of this company is owned by Anthony John Khalil.[25]
[22] Exhibit R12: InfoTrack ASIC Extract Snapshot and Current & Historical Organisation Extract of Alfadi Giving Hands and Aged Care Pty Ltd extracted on 23 May 2025 and lodged by the NDIA on 26 May 2025 (‘Alfadi Company Search’), pages 1, 5, 6 and 7.
[23] Ibid, page 7.
[24] Ibid, page 7.
[25] Ibid, page 7.
GM gave evidence that, currently, support worker assistance is provided to MCCT (and M) by Alfadi Giving Hands, and also another service provider, Get Back Health Pty Ltd (‘Get Back Health’). Notably, MCCT is only funded under his Current SOPS for 10 hours of support worker assistance per week (that is, not per day). This has occurred, despite GM and Alfadi Giving Hands being reminded by the NDIA about the statutory obligation arising under s 46 of the NDIS Act which mandates that MCCT’s funding must be spent in accordance with his NDIS plan.
As a consequence of the above and pursuant to GM’s requests, Alfadi Giving Hands, in its capacity as MCCT’s plan manager, has continued to facilitate the expenditure of NDIS funds at rate well in excess of the level of funding provided for in MCCT’s NDIS plan.
Of further concern, Alfadi Giving Hands produced its care rosters to the Tribunal in respect of MCCT, under force of summons issued in this proceeding. Those documents included (among other things) a roster of support worker services purportedly provided to MCCT by Alfadi Giving Hands for the month of December 2024. Mr Lessing referred GM to this roster during cross-examination. It became apparent that Alfadi Giving Hand has sought to represent in these rosters, that Alfadi Giving Hand’s support workers provided support to MCCT on days when, according to GM’s evidence, MCCT was absent from Australia (specifically, on 10 to 12 December 2024 inclusive, 15 to 19 December 2024 inclusive and 21 to 25 December 2024 inclusive). GM gave evidence that for a period of about 18 days in December 2024 (from about 10 to 26 December 2024), MCCT had travelled overseas with M, GM, and other members of their family. This meant that either the document produced by Alfadi Giving Hands was fabricated at a later stage or at best, contained erroneous information. The only other explanation is that GM’s evidence about when she travelled overseas with MCCT and M was false or erroneous, which is unlikely. GM accepted at the hearing, that there was something wrong with Alfadi Giving Hand’s records.
These are matters for the NDIA to consider further. The NDIA is at liberty to refer Alfadi Giving Hands to the NDIS Safeguards and Quality Commission for further investigation, if it considers it appropriate to do so.
ISSUE
The issue in this proceeding is whether the SW Assistance Support is a “reasonable and necessary support” within the meaning of the NDIS Act and should be funded under MCCT’s NDIS plan.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
Section 31 of the NDIS Act establishes a set of general principles that apply to the preparation, variation, reassessment, and replacement of a NDIS participant’s plan, as reproduced below:
31       Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a)       be individualised; and
(b)       be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)        maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 31 of the NDIS Act sets out several principles that apply to the development of an NDIS plan for a participant. The purpose of the plan is to state how the funds provided are to be managed. The plan is the instrument that governs the funding the participant is entitled to receive under the NDIS.
Each plan must have in it an approved SOPS; and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2) of the NDIS Act.
Section 33(5) of the NDIS Act provides as follows:
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e)have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant; and
(g)have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
The NDIS rules referred to in s 33(5)(d) include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘Supports Rules’). Part 5 of the Support Rules sets out “General criteria for supports, and support that will not be funded or provided”. Specifically, Rule 5.1 provides that a support will not be provided or funded under the NDIS if it is unlikely to cause harm to the participant or to pose a risk to others (Rules 5.1(a); it is not related to the participant’s disability (Rule 5.1(b)); it duplicates other supports delivered under alternative funding through the NDIS (Rule 5.1(c)) or it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs (Rule 5.1(d)).
Section 34(1) provides as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)        the support is an NDIS support for the participant.
Note:    For the purposes of paragraph (aa):
(a)   the time at which the disability requirement 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.

The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520 at [43], as follows:[26]
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[26] The Tribunal notes that this decision was appealed but that the appeal was dismissed: refer National Disability Insurance Agency v McGarrigle (2017) 157 ALD 458.
In 2023, Colvin J in Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 (‘Public Trustee of South Australia’) at [17] to [23], decided that there is a two-stage process for a decision-maker to deploy the concept of “reasonable and necessary supports” in the NDIS Act as a whole. The first stage is to decide whether it is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including the guiding principles set out in s 4 of the NDIS Act. The second stage is for the decision-maker to reach an affirmative state of satisfaction as to each of the six criteria set out in s 34(1) of the NDIS Act. Those criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded under the NDIS.
Of relevance to this application, the Tribunal has taken into consideration the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports for Participants Rules’).
The Tribunal has considered the following policy guidance published by the NDIA on its website:
(a)NDIA Operational Guidelines entitled “Principles we follow to create your plan” (updated on 7 April 2025);[27]
(b)NDIA Operational Guidelines entitled “Reasonable and necessary supports” (updated on 28 March 2025) (‘NDIA R&N Guidelines’);[28] and
(c)NDIA Operational Guidelines entitled “Assistive Technology Explained” (current as of 30 January 2023 (‘NDIA AT Guidelines’);[29]
(d)NDIA Operational Guidelines entitled “Assistive technology repairs, maintenance and replacement” (current as of 31 January 2023);[30] and
(e)NDIA Operational Guidelines entitled “Urgent AT repairs” (current as of 31 January 2023).[31]
[27] OG - Principles we follow to create your plan.pdf
[28] OG - Reasonable and necessary supports 2025-03-28.pdf
[29] Assistive technology explained
[30] Assistive technology repairs, maintenance and replacement
[31] Urgent AT repairs
REPRESENTATION OF MCCT IN THIS PROCEEDING AND AT THE HEARING
The “Application for Review of Decision” form lodged with the former AAT listed GM as a contact for MCCT, and M as his representative. There was no mention of F on this form. MCCT was legally represented at one stage in this proceeding, however, by the time of the hearing, GM had terminated those arrangements. GM claimed that the lawyer had messed things up.
Leading up to and at the substantive hearing, GM acted as the primary spokesperson for MCCT (and M). F did not attend an earlier case management directions hearings before the Tribunal because F had not been advised by GM, M or the NDIA about this matter and the scheduled hearing events.
In the lead up to the substantive hearing, upon reviewing an earlier interim parenting agreement between M and F (which preceded the Consent Orders), the Tribunal made enquiries of the NDIA to find out if it had made any determinations under s 74(1)(b) of the NDIS Act to nominate a particular person to act as the child representative of MCCT, and/or whether it had made any determination under s 75(3) of the NDIS Act that a particular person should have “parental responsibility” for MCCT for the purposes of the NDIS, in light of F and M both falling within the definition of having “parental responsibility” for MCCT under s 75(1). In response, the NDIA’s lawyers advised the Tribunal that the NDIA had not made any such determinations. Accordingly, F was contacted by the Registry of the Tribunal and invited to participate at the substantive hearing (with the assistance of an Arabic interpreter provided by the Tribunal). At certain stages during the hearing, GM also received the assistance of the Arabic interpreter.
Both GM and F represented MCCT at the hearing and advocated on his behalf. Their respective requests for NDIS-funded supports for MCCT differed greatly. F did not request any support for MCCT. F’s evidence was, in effect, that MCCT does not require any support from a support worker when he is in F’s care. F gave evidence that he manages to care for MCCT without any assistance. F called into question whether MCCT’s disabilities are as severe as GM has described them to the Tribunal to be, or that MCCT needed the level of support that GM is requesting. At the end of the hearing, F told the Tribunal that the things that GM were saying to the Tribunal were untrue and that GM was “twisting the facts, to get what she wants”. The Tribunal does not propose to engage with the apparent acrimony between F and GM.
M was also present, as an observer, for parts of the hearing. The Tribunal explained to M that she was certainly welcome to speak to the Tribunal if she felt comfortable doing so. In light of M’s disabilities, the Tribunal stressed to M (and GM) that M ought not feel compelled to do so. M remained as an observer for a significant part of the hearing, and with permission from the Tribunal, took lengthy regular breaks throughout the hearing for different reasons. At one point, GM said that M had suffered from a nose bleed which GM attributed as being caused by the stress M was under at the hearing. M was not called by GM to give evidence, nor required by the NDIA to be cross-examined. The Tribunal did not require M at any stage to address the Tribunal and made it clear that M was free to come and go as she pleased.
CONSIDERATION
The Tribunal must be satisfied that all of the seven mandatory criteria under s 34(1) of the NDIS Act are met and that the exclusion under Rule 5.1(a) of the Supports for Participants Rules, does not apply, before it is able to conclude that the SW Assistance Support is a “reasonable and necessary support” for MCCT under s 34(1) of the NDIS Act.
Stage One: Whether the SW Assistance Support is a reasonable and necessary support taking into account the NDIS Act as a whole
Public Trustee of South Australia stands as authority for the proposition that the Tribunal is required to consider, as a first stage, whether the cost of the SW Assistance Support is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including the guiding principles set out in s 4 of the NDIS Act.
The stated objectives under the NDIS Act include, under s 3(1)(a), to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities,[32] which includes a principle of “respect for inherent dignity”. Another objective, under s 3(1)(c) is to support the independence and social participation of people with disability and under s 3(1)(d) to provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS. Further, an objective under s 3(1)(g) is to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles. The guiding principles in s 4 of the NDIS Act include the principles in s 4(1), which provides that people with a disability have the same right as other members of the Australian society to realise their potential for physical, social, emotional, and intellectual development; and in s 4(11), which provides that reasonable and necessary supports for people with disability should support them to maximise their independence and live independently.
[32] Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008).
In light of the provisions of the NDIS Act as a whole, the Tribunal is satisfied that the provision of support worker assistance directly to MCCT could be a reasonable and necessary support in respect of MCCT and his individual circumstances, as the provision of such support is aligned with the objectives and principles referred to in the above paragraph.
The Tribunal will now proceed, as a second stage, as articulated in the decision of Public Trustee of South Australia, to consider whether each of the mandatory criteria under s 34(1) of the NDIS Act are met.
Stage Two: Whether the SW Assistance Support meets the criteria under s 34(1) of the NDIS Act
MCCT’s Impairments
GM told the Tribunal that MCCT has Level 3 ASD and a “severe” intellectual disability. GM’s primary contention is that MCCT needs a high level of one-to-one assistance each day and particularly in light of M having “severe” disabilities of her own, arising from ASD, which limits her capacity to care for MCCT.
MCCT is essentially “non-verbal” at this stage, apart from being able to say a few single words. He struggles to be able to work things out for himself. F thinks that MCCT can understand what is being said to him. F said that MCCT dislikes loud noises generated by certain machinery, such as a lawn mower. GM and others involved in caring for, or treating, MCCT, have asserted that he engages in behaviours of concern towards others. In stark contrast, F denied that MCCT exhibits such behaviours during the times he is being cared for by F.
During the hearing, at the request of the Tribunal, GM arranged for a medical clinic by the name of “Kids Clinic”, to send directly to the Tribunal all and any medical reports issued by MCCT’s treating Specialist Paediatrician, Dr Nassar and his former Paediatrician, Dr Chen, in respect of MCCT.[33] Contained in this bundle of medical reports are the following letters (among others):
(a)a letter authored by Dr Nassar dated 11 October 2024 (‘Dr Nassar’s October 2024 Letter’), stating that MCCT had recently completed progress psychometric assessments carried out by the “Kids Clinic Team”, and had been diagnosed with “ASD level 2-3 for social/communication deficit and level 2-3 for repetitive/restrictive patterns of behaviour based on DSM V criteria”, with associated “severe intellectual disability”, “significant language delay”, “preschooler ADHD behaviour”, “sleep disorder”, “sensory processing disorder” and “custody issue and different parenting differences between father and, mother and her maternal grandmother”; and
(b)a letter authored by Dr Nassar dated 12 March 2025 (“Dr Nassar’s March 2025 Letter’), stating that MCCT has been “assessed and identified” to have ASD “level 2-3”, “Severe Intellectual Disability”, “Significant Language Delay”, “Preschooler ADHD Behaviours”, “Sleep Disorder” and “Sensory Processing Disorder”.
[33] Exhibit R8.
Dr Nassar was not called as a witness at the hearing, nor made available for cross-examination.
GM told the Tribunal that MCCT has a “severe intellectual disability” and she relied upon the diagnosis of Dr Nassar. When F was asked whether he thought that MCCT had an “intellectual disability”, F said he believed so, based on his comparison of MCCT to other children of the same age. F said that other children can go to the toilet. F said that he has to support MCCT and needs to offer things to him (and to be next to him). F said that MCCT has some delay compared to other children. F gave evidence that MCCT has experienced significant language delay and can only use up to about four words, and that he is not able to use sentences when communicating with others.
In Ms Davids’ Reports, and in her oral evidence at the hearing, she expressed some doubts over the diagnosis made by Dr Nassar of MCCT in relation to his diagnoses of ASD and “severe intellectual disability”. Ms Davids explained that the “DSM-V” specified that a diagnosis of “developmental delay” should be made for children under the age of five. Ms Davids also said that during her assessment of MCCT, she had observed him undertaking tasks which are inconsistent with him having “severe intellectual disability” and perhaps also, at the level of ASD as has been diagnosed by Dr Nassar (that is, Level 2-3). As an example, Ms Davids said that MCCT demonstrated that he was able to manipulate a coin in such a way as to take it off of the surface of a table, by sliding it to the edge and turning it over. F gave evidence that MCCT can do several activities of daily living (‘ADLs’) independently and that when he is hungry, he is able to, independently, go to the fruit bowl in the living room to find a banana, peel and eat it.
GM asserts that MCCT has physical impairments, however, F disagrees. F informed the Tribunal that physically, MCCT only needs help with a few small things, but otherwise F said MCCT’s mobility and balance is “okay”.
GM also asserts that MCCT has a “sleeping disorder”. Ms Davids suggested in her report and at the hearing, that MCCT’s sleep problems may be the result of “poor sleep hygiene”. MCCT sleeps in the same bed as M. M experiences sleeping problems of her own which keeps her awake during the night and at times, M will talk to her support workers in the same bedroom where MCCT is sleeping. By contrast, F gave evidence that when he is staying at F’s home, MCCT will go sleep at about 10pm or 11pm and sleep through the night. F said that MCCT has his own bedroom in F’s home. The Tribunal is satisfied that MCCT’s sleeping problems are likely to be the result of the current sleeping arrangements in M’s home being that he sleeps in the same bed with M who has her own sleeping issues and according, to GM and her support workers, stays awake for significant portions of the night.
F’s evidence
F was invited to give evidence at the substantive hearing on the second day of the hearing. The effect of F’s evidence is summarised below:
(a)MCCT stays with F overnight, every Friday night. F said he collects MCCT at about 2pm each Friday from Suburb R, and drops him back to M’s house at about 5pm in Suburb R each Saturday;
(b)F lives alone in a house in Suburb H. F’s house has two bedrooms, two living rooms and two bathrooms and he said that MCCT has his own bedroom;
(c)F says he works part time, on a casual basis, but not during the times that MCCT is in his care;
(d)F has a large family who lives nearby his home including his aunts, cousins, brother, parents and a nephew. F said he sees them often including when MCCT is staying with F. F said that MCCT will play with his cousins and “has fun” with them;
(e)F referred to an agreement being reached which specifies that in about six months from now, the care arrangement for MCCT will change such that he will stay with F for two nights and three days each week (in place of the current single Friday-night overnight arrangement);
(f)F says that MCCT goes to a Public School. F said his understanding is that MCCT commenced at the Public School about three weeks before the hearing of this application, and that is he is in a “special class”. F said that previously MCCT went to a pre-school in Suburb B and “they would not let [F] in”;
(g)F says that when he collects MCCT, he will take him to the park or they might go shopping. F said that MCCT is able to go to a shopping centre and that MCCT enjoys going on the escalators. F said that MCCT loves to eat sushi. F said he can eat sushi independently. F said that MCCT also loves Happy Meals at McDonalds, chocolate milkshakes and hot chips. F said that MCCT likes to drink apple juice;
(h)F said that MCCT can use cutlery by himself. F said MCCT was “a bit weak” when using cutlery. F said that he does not assist MCCT “all the time” with using cutlery and it will depend upon the meal. F said that he will sit with MCCT when he eats. F said he tries to “make [MCCT] independent” by “letting him do things for himself” to “empower him”;
(i)F said that “sometimes” MCCT does activities with other children, such as soccer or “jumping”. F says MCCT does activities “to strengthen him mentally and physically”. F says he takes MCCT to socialise with other people “to improve his confidence” and “to empower him”;
(j)F was asked how MCCT went when he is interacting with other children. F responded: “he loves it, enjoys it” and he “runs around”. F was asked whether MCCT can do so, without F needing to be involved. F said “he can play without him”;
(k)F was asked how MCCT interacts with adults. F said that MCCT “is active with them” and “he communicates with them”. F gave evidence that if they go to visit someone and there are “ten men sitting down”, MCCT will follow F and shake each person’s hand, after F shakes their hands. F said that if MCCT is with someone familiar to him, he will hug them. When asked if MCCT had a sense of humour, F answered, “only with the people he knows”. F gave an example of MCCT being at the mosque praying and when he saw his grandfather, he walked around some people to his grandfather and hugged him;
(l)F says he feels that MCCT enjoys his time with F and that MCCT “becomes more active”. F said he also takes MCCT to the beach and to interact with animals, rather than “going on devices and the lap top”. F said MCCT is able to walk and run on the sand and that he loves going into the water to play. F said that MCCT is not able to swim and requires supervision;
(m)F says MCCT does not play organised soccer but will play soccer with his cousins and with F. F said MCCT can kick the ball and “is very strong”. F said that MCCT “loves to run around”;
(n)when F was asked about MCCT’s AAC device, he said he was unaware that MCCT had been provided with it. F said that in the last four years, the AAC device had not been given to F so that MCCT could use it when he was with F;
(o)F says that MCCT “speaks small words” (that is, “yes”, “no” and “animals”), and “moves his head”. F said he communicates to MCCT in English (rather than Arabic) so that MCCT does not get confused. F said that MCCT does not know any Arabic words;
(p)F says that he will ask MCCT if he wants to go to the toilet and MCCT will say “No” and then MCCT will “go to the toilet in his nappy”. F said that MCCT wears “nappies” at night and “pull ups” during the day. F says he asks MCCT every hour or two if he needs to go to the toilet. F said that he will take MCCT to the toilet. F said that sometimes he will ask MCCT to pull down his nappy and other times, F will pull it down for him. F says he demonstrates for MCCT how to pull up his pants and that MCCT will follow F. F said that MCCT sits on the toilet seat. F said MCCT knows how to press the button to flush the toilet and how to wash his hands;
(q)F was asked whether F used “sign language” with MCCT. F answered, “Yes”. When asked to give an example, F said if they are watching something sad on television, F will pretend to cry and MCCT will come up and hug and kiss F. When F was asked if someone had taught him how to use sign language with MCCT, F said that after he found out about MCCT’s condition, he watched “YouTube” videos for information about how he should deal with MCCT’s case, including how to empower his son and how to communicate with him. F said MCCT has learnt about two or three gestures with one of them being a physical gesture by F used to signal, “Let’s go”. F says he “feels” that MCCT can understand what F is saying to him verbally;
(r)F said that he will show MCCT how to get dressed and that he is unable to get dressed by himself. He said that MCCT can do some tasks easier than others, for instance, it is easier for him to pull his clothes down than to get dressed by himself. F said he will help MCCT to get dressed. When asked, F said that he had not noticed MCCT being sensitive to certain things being against his skin, except to mention that MCCT “sometimes” suffers from eczema;
(s)F was asked if MCCT refuses to undertake daily tasks. F said that MCCT will perform well when dressing him. F said that MCCT does not show any interest in having a shower but that F will put the toys in the shower and if he plays with them, F said MCCT will “accept having a shower”;
(t)F said that if he “is out” with MCCT, with his cousins having fun, MCCT will refuse to come home because he knows there will be “chores” for him to do, like eating and having a shower. F also said that MCCT will refuse to go outside if there is somebody outside cutting the grass because MCCT does not like the machine noises from the mower. F said MCCT may also refuse to eat a particular type of food, if he prefers another type of food;
(u)F said that he will ask MCCT to get a particular food out of the fridge and that MCCT will go to the fridge and get a food item, but it might be a different food item which F had requested;
(v)F has not been provided with an opportunity to speak to any of MCCT’s therapists or childhood educators including MCCT’s speech pathologist, OT, exercise physiologist/physiotherapist, early childhood educator or psychologist. When asked if F had spoken to MCCT’s former preschool about MCCT, F said he went to the preschool but they “did not let him in”;
(w)F was asked if he was strict with MCCT with respect to establishing boundaries for good and poor behaviour. F said that if he sees MCCT doing something, he will look at him in a way to indicate that he should stop that behaviour. F was asked if this worked, to which F answered “yes” and that it “works all the time”. When asked, F said that MCCT had never been physically angry with him but that maybe, he had been so with the children. F qualified this and said MCCT had not pushed or hit them. He said that MCCT had “never pulled their hair”. When asked if MCCT had thrown objects at them, F answered, “very little” and that “it depends”. F denied that MCCT had ever thrown stones or sticks;
(x)F said that MCCT is able to press the buttons on a television remote control but that he does not know how to operate it effectively. F said that F needs to navigate the remote for MCCT;
(y)F said that MCCT knows how to work the iPad and iPhone and can access the “YouTube” channel to watch children’s programs. F said that MCCT can use those devices to navigate from one page to another and from one channel to another. F gave evidence that when F wants his phone back from MCCT, that MCCT will either give it to F when he asks for it, or MCCT will leave it on the couch. F denied that MCCT will get agitated or upset when F asks MCCT to give his phone back;
(z)when F was asked about MCCT’s bedtime routine, F said that he washes MCCT and puts him into bed. F said that if MCCT is tired, he will go to sleep but if he is not tired, sometimes F will give him his phone. F said that MCCT will go to sleep at about 10pm or 11pm. F said that MCCT goes to sleep about half an hour after going to bed. F said MCCT does not have set bedtime and it will depend upon what else is going on. F said that MCCT goes to sleep by himself in his own bedroom. When asked whether MCCT slept through the night, F answered, “Yes”. F gave evidence that MCCT wakes up at “between 6am and 8am”. F said MCCT will wake up by himself. F said MCCT will come into F’s room and they might play with him (or with his paternal grandmother which she was staying at F’s house for six months);
(aa)when F was asked if MCCT resisted going to sleep and got agitated or had tantrums or meltdowns, F answered, “No”;
(bb)when F was asked if MCCT had ever engaged in foot stomping behaviour when he was refusing to do something, F said MCCT does not do this; and
(cc)F said that GM had told him that she gives medicine to MCCT. F said he does not know what this medicine is, and that GM does not give this medicine to F for him to give to MCCT.

Mr Lessing asked F whether there were any other areas in which MCCT struggled, apart from the language difficulties. F said he felt that MCCT has some speech and physical issues but generally, F “felt” that MCCT is “normal” and “doesn’t have any other needs”. F said that nobody can tell that MCCT has autism, unless they start to interact with MCCT.
F was asked whether he thought F needed a support worker to look after MCCT. F said that in the four years he has looked after MCCT, he has been able, and capable, of supporting MCCT without a support worker. F said he feeds MCCT, changes his clothes and takes him out. He said that MCCT “does not need that much support”. F said he has been caring for MCCT overnight, one night per week, for the last five years.
Mr Lessing took F to a statement referred to in a document relating to a family mediation which took place on 18 July 2023 to the effect that F said he was going to organise for MCCT to be assessed by another specialist or paediatrician to obtain a second opinion. Mr Lessing asked F whether he had taken MCCT to be reassessed. F said that GM had told F that MCCT does not need to have another opinion. F said he does not accept the opinion of Dr Nassar because Dr Nassar stated in one of his medical reports that F was “crazy and scary” despite Dr Nassar ever having met F. F is referring the following statement in a report issued by Dr Nassar dated 21 June 2021:[34]
Father is not much involved and reportedly cognitively/mentally impaired.
[34] Exhibit R8.
F said when he read this, he confronted Dr Nassar to speak to him about it. F said Dr Nassar denied this and said that he would not know. F asserted that GM is “in control” and that he and M “do not have the right to do anything”.
F gave evidence that M is not capable of looking after MCCT independently and that she has autism.
F said he had also asked GM to change the service provider (that is, from Alfadi Giving Hands to another service provider). F said that GM had refused his request, “completely” and he asserted that GM will not change service providers or “Nahid”. F said that “the reports do not tell him everything he should know” about MCCT.
GM’s evidence
GM gave evidence at the hearing as follows:
(a)GM said she wants “good support” for MCCT. She said she wants MCCT and M “to be safe”;
(b)GM said she wants support for MCCT in the mornings, evenings and for community access to help him to be “independent” and to “have something good about his life”. GM said “this is all I am asking”;
(c)GM said she has seven children in total and “they all live around the area”;
(d)GM said that MCCT comes to her home every day, during the daytime (with M) and sometimes as night. When asked how many nights MCCT will stay over at GM’s house, GM answered “only when he is sick”. When asked, GM said that only MCCT will stay at her home, and not M;
(e)when asked, GM confirmed that her family will often “get together” and that MCCT is involved in those gatherings. GM said that this might occur for a “picnic”, “BBQ”, “family dinner”, “family lunch” or a “wedding”. GM said this tends to occur at her home or in the home of M’s brothers or sisters. GM said that one of M’s siblings has children but they are a different age to MCCT. GM said MCCT has a cousin aged 11 and that “they know how to play with” MCCT. GM says they have a ball for MCCT and he enjoys it with them. GM said that MCCT might come to her home for lunch or dinner;
(f)when Mr Lessing put to GM that Ms Davids has stated that the extended family provides support to MCCT, GM replied “no-one provides physical support”. GM said that “sometimes” her children take MCCT and M to the park for about 10 to 15 minutes. GM said MCCT’s uncles will play with him, but that “they will not look after him”;
(g)GM gave evidence that MCCT went on an overseas trip for approximately 18 days in December 2024 with M, GM, and GM’s seven children and her two grandchildren (‘Family’). GM said that MCCT’s support workers did not go with them. GM said that the Family “all provided support” for MCCT and M, during this time;
(h)GM confirmed that MCCT was in pre-school last year. GM said he commenced when he was two and a half years. GM said that when he started pre-school, MCCT attended two days per week. This was increased to three days per week and then, at the suggestion of the pre-school, it returned to two days per week;
(i)GM confirmed that as from 2 May 2025, MCCT is now in “kindergarten” at Public School PN (which is the first year of his formal 13 years of education). GM said there are certain classes inside of this school for children with disabilities, and that they have “special teachers”. GM informed the Tribunal that MCCT attends Public School PN from 9am to 1.30pm on five days per week from Monday through to Friday;
(j)GM said that sometimes she will take MCCT to school, sometimes F will take him or sometimes MCCT’s aunt will take him there. GM said that the paid support workers do not take MCCT to school. GM said that two support workers (and M) will collect MCCT after school. GM said that one of the support workers will be driving the car and the other support worker will sit next to MCCT in the car. GM said that taking MCCT out of school is “not an easy task to do”;
(k)GM said that all of MCCT’s therapy appointments take place outside of MCCT’s school. GM said she is waiting for the school to make arrangements for the therapist to attend at the school. GM said she considers the occupational therapy and speech pathology to be most important;
(l)Mr Lessing referred GM to the report of Ms Rebecca Rabahi, Exercise Physiologist, dated 20 January 2025,[35] citing her observation that MCCT’s family had begun to support him with his toilet training, that MCCT was “more at ease”, and wore underwear when he was at home. When asked if this was correct, GM agreed. GM also agreed, when it was put to her, that there had been an improvement in MCCT’s level of focus and attention since he started at his former pre-school. GM said she had not noticed a continuing improvement while he had been at Public School PN because she said he had only been there for a period of about three weeks;
(m)when asked if Public School PN had offered transport to MCCT, GM indicated that it is available (but has not yet been arranged). GM said that M “did not feel happy” for MCCT to use the school transport. GM said she did not think they will “take it up” because “they” like to drop MCCT to school and to collect him. GM said that M does not have a drivers’ licence. GM said that the school is about 15 to 20 minutes from M’s house. GM said that after school, sometimes MCCT will go to her house or sometimes to M’s house.
[35] Exhibit R5.
During cross-examination, Mr Lessing referred GM to a Psychometric Assessment Report issued by Ms Vaselinka Petruseva, Registered Psychologist, dated 17 July 2024 in respect of MCCT.[36] The Tribunal notes in this report, Ms Petruseva states that MCCT had been previously diagnosed with ASD “level 2, as well as a Mild-Moderate Global Development Delay including Severe Language Delay and persistent motor difficulties”.[37] Ms Petruseva states as follows in her report:[38]
[MCCT] was observed to demonstrate poor communication skills and hyperactive behaviours with very poor eye contact and joint attention which made it difficult for him to engage in most assessment tasks. As a result, the cognitive assessment was not able to establish [MCCT]’s cognitive ability at this time.
…
Based on the current assessment results, behavioural observations during the assessment and information available at the time of this assessment, [MCCT appears to have significant difficulties in the area of communication, self-care and social interactions which is consistent with his current diagnosis of Autism as well as possibly consistent with a Severe Intellectual Delay although there is no sufficient information at this time to draw diagnostic conclusions in this regard. [MCCT]’s cognitive ability could not be determined at this time due to his behavioural difficulties during the evaluation.
[36] Exhibit THD5.
[37] Ibid, page 2.
[38] Ibid, page 6 and page 7.
Mr Lessing also referred GM to Ms Davids’ opinion that her observations of MCCT were not suggestive of an intellectual disability but might be global developmental delay. Ms Lessing asked GM whether there had been any cognitive assessment of MCCT since the date of Ms Petruseva’s report. GM did not answer this questions but made the following remark: “Yes, he has an intellectual disability. I’m his grandmother. He cannot do a lot of things”.
GM’s evidence was different from F’s evidence about MCCT’s AAC device. GM said that MCCT will use it every day and that he took it with him to “preschool”. She said that “everywhere he had his AAC device”. She said that F had “refused to take it”. In contrast to this evidence, F said he has never been given this device. GM said she does not use the device with MCCT because it “affects her eyes and her nerves”. GM said the support worker opens it for him.
GM gave evidence that MCCT has two different support coordinators, namely:
(a)Ms Nahid Khalil, Level 2 Support Coordinator from Alfadi Giving Hands. The Tribunal notes this same company provides support worker assistance to MCCT; and
(b)Ms Nazila Faiqa, Level 3 Support Coordinator from Get Back Health. The Tribunal notes this company provides support worker assistance to MCCT.
GM said that one support coordinator monitors the plans and the other one check the supports. It is not apparent to the Tribunal why two different support coordinators at different levels are required to do those different tasks and why one support coordinator could not do both. This would appear to be a duplicate, and inefficient, provision of supports to MCCT. It would be preferable for there to be one support coordinator only, and that the selected support worker is wholly independent from any of MCCT’s or M’s other NDIS-funded service providers. However, this is not an issue which is presently included in the Section 53 Order, so the Tribunal will not deal with it any further.
When GM was asked who had booked the support worker assistance for MCCT and had decided how many hours should be booked, GM said that she sends a request to Ms Nahid Khalil who will book it. When asked how many hours of support worker assistance is being provided to MCCT at the present time, GM answered, “10 hours per day”. When asked whether this included the days when MCCT was with F, GM clarified her evidence by stating that this would only occur six days per week. GM was asked how she had paid for the additional 60 hours of support worker assistance per week, in light of MCCT only being funded for 10 hours of support worker assistance per week. GM did not provide an answer. When GM was asked to state the time that she had last made a (private payment) to Alfadi Giving Hands, GM said that M had not made any payments to this company since January 2025.
GM confirmed that M is receiving “24/7” support worker assistance from Alfadi Giving Hands and Get Back Health. Ms Lessing pointed out that M is funded for 140 hours of support worker assistance per week. He asked GM who was paying the gap of 28 hours per week. GM responded by saying that she does not pay anything.
GM was asked why she considered that MCCT required 10 hours of support per day on the days he is with M. GM said MCCT required specialised support worker assistance with daily living tasks. GM said MCCT needs someone to help him bathe, shower, brush his teeth, change his nappy and to change his clothes. GM said that MCCT has dry skin and is highly allergic. GM said that MCCT has special cream for his face. GM said that MCCT needs to take vitamins each day. GM said he needs help grooming and with feeding. She said he needs help to take him to “playgroup” and to “take him to his sessions”. GM said that M needed assistance to go the sessions, the doctors’ appointments and playgroup. GM said that MCCT has the same routine in the afternoon and that he also has a “sleep disorder”. GM asserted that MCCT “does not sleep at night”.
GM was given an opportunity to explain why F’s evidence described a different experience with MCCT in this regard. GM said that MCCT used to sleep with his paternal grandmother who was sleeping in the same bedroom as MCCT at F’s home, when she was in Australia for six months. GM said that she cannot say anything about what F had said. GM said that they had tried to separate M and MCCT (in terms of them sleeping in separate bedrooms) in M’s home, but GM said this was “very hard”.
GM’s evidence about which support workers were currently assisting MCCT was difficult to adduce from GM at the hearing. However, after some lengthy questioning, the Tribunal understood GM’s evidence to be that:
(a)there are two support workers currently assisting MCCT, being Support Worker LL (from Alfadi Giving Hands) and Support Worker B (from Get Back Health). Support Worker B has been assisting MCCT since May 2025 and before that time, MCCT was assisted by Support Worker;
(b)there are two support workers currently assisting M, being Support Worker HI and Mawada Alkhaleely;
(c)Support Worker HI supports M to support MCCT; and
(d)none of those support workers are related to the MCCT’s family.
GM gave evidence that MCCT receives support worker assistance each week as follows:
(a)each Monday, Tuesday, Wednesday and Thursday:
(i)from 8am to 9am (1 hour);
(ii)from 12noon to 2.30pm (2.5 hours); and
(iii)from 8pm/9pm to 2.30am/3am (6.5 hours); and
(b)each Friday:
(i)from 8am to 9am (1 hour only); and
(c)each Saturday:
(i)from 5pm to 7pm (2 hours);
(ii)from 10pm to 3am (5 hours); and
(d)each Sunday:
(i)from 8am to 10am (2 hours);
(ii)from 1pm to 5pm/6pm (taken as an average of 4.5 hours); and
(iii)from 10am to 3am (5 hours).
According to this schedule, the total numbers of hours of support worker services provided to MCCT currently is 59.5 hours per week.
As from13 November 2025, under the care arrangements set out in the Consent Orders, MCCT will not require the 6.5 hour Thursday evening shift or the 1 hour shift on Fridays because MCCT will be in the care of F. This brings the total number of hours of support worker assistance, as requested by MCCT, down to 52 hours per week for the period of 13 November 2025 to 30 May 2026.
GM gave the following further evidence at the hearing:
(a)two support workers (one being MCCT’s support worker and the other being M’s support worker) will take MCCT (with M) to and from MCCT’s therapy appointments;
(b)at the therapy appointments, sometimes the therapists will want to work with MCCT alone and at other times, they will ask M and the support workers to be with the therapists (OT and speech pathologist) and MCCT, to teach them how to look after MCCT. GM says she will also join them for one of those sessions once every six weeks;
(c)GM said that sometimes M’s support worker will wait in the waiting room “for a little bit”. GM mentioned that the therapists had complained about how many people were in the therapy room;
(d)when GM was asked why two support workers are required to take MCCT to the therapy appointments, she answered, “because the needs for MCCT differ from M’s needs” and that “one support worker cannot support both of their needs”. GM also said that MCCT and M both have “high level of autism” and that it “wouldn’t work for one person to provide the care”. When asked whether GM knew the qualifications held by the support workers, she said they had qualifications as “a social worker” and that she had seen their qualifications “in their files”;
(e)GM was asked if she was aware of any strategies or suggestions given to M by the therapists, to increase M’s ability to support MCCT. GM said that they have tried to teach M how to treat MCCT, to help him calm down. GM said there are different signs they use (face gestures) to calm MCCT down and to talk to him. She said they will bring an iPad and show MCCT different pictures;
(f)when asked whether M’s support worker will help M to assist MCCT with self-care tasks, GM answered, “No”, and asserted that MCCT’s support worker is for MCCT only. GM said that MCCT and M have their own support workers and she asserted that they will help M to learn how to help MCCT. However, when GM was asked what M might do to help MCCT to brush his teeth, she said that the support workers will assist M, and MCCT, to adjust the water temperature as they both cannot regulate the water temperature. GM said that a support worker would need to help M to be aware of how much toothpaste to put on the brush and to show MCCT how to hold the toothbrush. GM said that M has the same problem and she might put too much toothpaste on the brush, which GM described as “not good”. GM said they are trying to teach MCCT how to gargle and to wash it around/spit it out. It was not clear from GM’s evidence that M’s support workers are doing anything to assist M to support and care for MCCT but rather they are directly helping each of MCCT, and M, to do their respective self-care tasks;
(g)Mr Lessing put to GM that one support would be enough to care for MCCT and M. GM responded by saying, “No. M needs a support worker to help her to get up, to be ready for MCCT when he wakes up. When MCCT is ready, his support will have to help. M cannot focus on one thing by herself to help her son. Self-care involves more than just brushing teeth”;
(h)GM gave evidence that M’s needs are greater than MCCT’s needs and that one support worker is not enough for both of them. GM said the reason for this is that they both have different needs. GM said that the morning and evening periods require a lot of effort by the support workers, and by M, and that it takes a lot of time to get MCCT to come inside;
(i)GM was asked if she had looked into enrolling M into a parenting course, as had been suggested in Ms Davids’ Report. GM said that M did a course before she gave birth to the MCCT. GM said she has not followed this up more recently because of the paperwork involved in the Tribunal proceedings. GM said she does not undertake any paid employment but that she has six other children to look after and she has health issues (as referred to above). As mentioned above, all of GM’s children are aged between 20 and 29. Apart from MCCT, GM’s children are adults, not disabled, and able to care for themselves. GM said she had not stopped following up about a parenting course of M but that the changes in M’s and MCCT’s lives had been happening “too fast”, including the change of MCCT’s school. GM said she had not received Ms Davids’ Report (containing this recommendation) “all that long ago”. The Tribunal accepts this as valid point by GM;
(j)GM said that Public School PN has not, as yet, given her a disability support plan in respect of MCCT. GM said she is expecting to receive one, but they are waiting to see how MCCT goes. GM said at the moment he cannot stay for the whole day. Currently, he leaves school at 1.30pm but it is expected that eventually he will stay for the whole day. Normally, the school day ends as 3pm. GM said that when MCCT is at school that he, and another student, are assisted by a teacher’s aide;
(k)GM gave evidence that the therapists and support workers meet from time to time to check on MCCT’s progress and to discuss what other supports he needs;
(l)GM was asked to state the name of MCCT’s therapy assistants. GM said that she did not think he was with a therapy assistant any longer. GM was unable to recall their names. GM said she has a problem remembering things; and
(m)when asked if there was a support worker with the initials “MI” or “MH”, GM was unable to confirm who those initials might be referring to.

In her letter, Ms Alkhaleely asserts that MCCT requires 1:1 supports “throughout the day to ensure his safety, wellbeing, and the development of essential life skills” so that “staff” could provide him with “comprehensive assistance in various aspects of his daily routine”, including, personal hygiene, independent living skills, communication skills, meal preparation, food and water intake, adherence to his structured routine, community access support, and attending appointments with allied health therapists and his GP and specialists. Ms Alkhaleely was not called as a witness in the hearing of MCCT’s application. Ms Alkhaleely is not a qualified allied health therapist or a medical practitioner. The opinion Ms Alkhaleely has made as a lay witness. In these circumstances and given her opinions are inconsistent with the professional opinions of Ms Davids, the Tribunal does afford Ms Alkhaleely’s lay opinions as set out in her letter of support any weight.
Similarly, Ms Khalil and Ms Faiqa are not qualified allied health professionals, or medical professionals, and the opinions they express about MCCT’s need for support worker assistance are those of a lay person. Neither Ms Khalil, nor Ms Faiqa, were called to give evidence at the hearing of MCCT’s application. The information and their opinions expressed in their report and witness statement referred to above, were unable to be clarified, or tested, in cross-examination. Further, Tribunal is not satisfied that Ms Khalil has been objective in preparing her reports about MCCT. She stands to profit commercially (and significantly so), if NDIS funds are approved for substantially increased hours of support worker assistance for MCCT. In the case of Ms Khalil, the Tribunal also holds grave concerns about her personal integrity, given that it would appear that certain care roster records for the month of December 2024 were fabricated by her and her company, or at best, contained very significant errors, as set in detail above.
For these reasons, the Tribunal disregards the recommendations and any other observations of MCCT’s support coordinators and of his support workers.
Recommendations of independent OT’s evidence – Ms Lee Davids
Ms Davids undertook an in-person functional capacity assessment of MCCT and issued Ms Davids’ Report. The NDIA included numerous background documents and medical/clinical reports about MCCT, when instructing Ms Davids to prepare her report. Those documents are listed in the NDIA’s lawyer’s letters of instruction to Ms Davids on 1 January 2025, 10 February 2025 and 27 May 2025.[54]
[54] NDIA’s HTB, R1/1-6 & R2/7 and Exhibit R4.
In Ms Davids’ Report, she made the following observations and findings:
(a)there was no indication during the assessment that MCCT is “coached” by those caring for him to perform “age-appropriate cleaning tasks”;
(b)MCCT’s carers reported to Ms Davids that MCCT enjoyed getting involved with cooking and often helped the carers when preparing meals. However, Ms Davids said she did not observe MCCT to do this during the assessment;
(c)MCCT was observed to be able to independently drink from an open cup and feed himself using a fork and his fingers. She said he preferred to use his fingers but is able to use fork. Ms Davids said MCCT requires assistance to cut up food, as would other children of his age;
(d)MCCT was observed eating breakfast and lunch and watched “YouTube” videos on a tablet the entire time, even when the family and support workers were sitting eating lunch together. Ms Davids said MCCT’s family report this is usual, and that he becomes agitated if he cannot watch the tablet when eating. She said that MCCT did not require assistance to eat food that has previously been cut up;
(e)MCCT is currently in the process of toilet training and is wearing training underwear. Ms Davids said M told him she had moved MCCT to CP Preschool at the end of 2024 and they immediately began toilet training. M told her this had not been done before;
(f)MCCT’s caregivers regularly checked his pants and asked if he wanted to use the toilet. Ms Davids said MCCT was dry for her entire visit and used the toilet when prompted with M’s assistance. She said that MCCT was clearly proud of himself when praised for being dry;
(g)MCCT was not observed to use the toilet but was observed to pull up his shorts when they slipped partly down on the play equipment;
(h)MCCT’s carers had reported to her that MCCT requires assistance with teeth brushing. Ms Davids said MCCT’s hair is cut very close to his head and does not require brushing. Ms Davids said MCCT was not observed performing grooming tasks, however, she states it is age appropriate for a five year old child to require prompting and assistance for grooming tasks;
(i)during the visit, MCCT was, twice, assisted to dress in a tee shirt and once, had his shorts put on. Ms Davids said that the first time a tee shirt was put on, MCCT was observed to require initial prompting to focus on the task and when focused, that he was able to assist, for example, by putting his arm through the tee shirt sleeve when asked to do so. The second time, when MCCT was told he needed to change his top and put on shorts, Ms Davids said he became agitated and resisted, saying “No” repeatedly, and burrowed into the lounge. Ms Davids said that all four carers present at the time, clustered around him trying to calm him. Even when agitated, Ms Davids said that MCCT followed instructions to lift his legs to put them into the shorts and put his arms into the sleeves, as he was assisted by M. Ms Davids remarked that MCCT’s ability in dressing is slightly delayed because children his age are generally independent with dressing or require minimal assistance with complex dressing, for example, tying laces or managing buttons;
(j)MCCT’s carers had reported that he used both the bath and the shower and that MCCT stands to shower and is assisted to wash himself and his short-cut hair. Ms Davids said this is considered “age appropriate”;
(k)MCCT is independent in all “bed mobility”, without difficulty;
(l)MCCT is independent in all transfers and displayed no physical, balance or motor planning deficits or use of accessory muscles that impact upon his ability to transfer;
(m)MCCT was observed to, independently:
(i)move between sitting and standing on and off all surfaces, including the lounge suite and dining chair;
(ii)get down to and up from the floor quickly and without effort; and
(iii)to move from standing to squatting;
(n)MCCT was observed to have age-appropriate standing tolerances and to mobilise independently with a balanced and equal gait;
(o)at times, all caregivers were observed tending to MCCT, for example, when he refused to come out of the house and needed to change his clothes. These interactions were observed to be quite chaotic, with multiple caregivers clustered around him and speaking to him at once;
(p)at one point, MCCT became very agitated and was not listening to any caregiver. In response, Ms Davids stated that GM called one of her sons on “Facetime” and put the phone in front of MCCT. Ms Davids states that MCCT immediately took the phone, calmed down and started smiling at his uncle who asked him how he was. She said MCCT did not attempt to verbalise. The call was terminated within a minute, and he was more compliant. GM told Ms Davids that MCCT loves his uncle and is always settled with him;
(q)there was a notable lack of boundaries in relation to MCCT. Ms Davids stated that MCCT’s caregivers were “very permissive with him”. She said that other than insisting on changing MCCT’s clothes and going to the toilet, caregivers were observed to generally allow him to do whatever he wished. Aside from kicking the ball for him, Ms Davids said that his support worker did not actively engage with him, mainly following him around and watching him. Ms Davids observed that the support worker had limited communication with MCCT, other than warning him to be careful or praising him;
(r)MCCT enjoys playing soccer, kicking the ball, going to the pool, attends swimming lessons, goes to the park, plays on equipment, watches children’s programs on the apps. Ms Davids stated that MCCT was able to operate TV remote control independently (the Tribunal accepts F’s evidence given at the hearing, that while MCCT knows how the push the buttons, he does not know how to operate the remote effectively);
(s)MCCT was not observed to make any sensory seeking movements such as swaying or rocking when seated, oral sensory seeking behaviours such as putting non-food items into his mouth, or faecal smearing. Ms Davids noted that these matters were not mentioned to her, when MCCT’s function and behaviours were discussed;
(t)the television was on quite loudly when his fine motor hand function was assessed. Ms Davids said that MCCT was not observed to be affected by this nor did he react in any way when M vacuumed the floor. Ms Davids stated that MCCT did not demonstrate any reactivity to loud noise or other sensory inputs; and
(u)MCCT was observed to prefer “rough play”; however, Ms Davids remarked that this did not appear excessive for a boy, particularly one who spends time watching wrestling videos, although she said it was notable that MCCT did not cease wrestling with M when asked to do so. Ms Davids said MCCT’s carer pulled him away from M.
The NDIA also provided the bundle of “Kids Clinic” medical reports referred to in paragraph [84] above, to Ms Davids for comment. When asked whether Dr Nassar’s or Dr Chen’s medical reports caused Ms Davids to change the opinions she had expressed about MCCT in her report, Ms Davids responded, “Not significantly”. Ms Davids said she remained of the view that MCCT certainly needed a behaviour support plan. Ms Davids remarked that it was “excellent” that 90 hours of behavioural support intervention had now been included in MCCT’s NDIS plan. Ms Davids also commented that “the key will be to find a behavioural support practitioner who is experienced in working with complex children in complex social situations”. Ms Davids said that she remained of the opinion that MCCT and M could share the care provided by a support worker. Ms Davids opined that M needed support to provide appropriate parenting to MCCT.
Ms Davids was asked about a statement she made in her report that level of physical assistance that MCCT required was “high”. Mr Lessing asked Ms Davids whether MCCT would be able to participant in age appropriate cleaning tasks. In Ms Davids’ Report, she had given examples of such tasks being to put items, like his shoes, into his room or to pick up his toys. Ms Davids gave an opinion that MCCT would be able to do this, physically. Ms Davids added that MCCT does not perform those tasks, because they are done for him.
As stated in Ms Davids’ Report and confirmed at the hearing, Ms Davids holds reservations about the diagnoses made by MCCT’s treating doctors. At the hearing, Ms Davids said that in the DSM-V, the condition of “intellectual disability” has a “definitive diagnosis” and “is usually given after thorough standardised testing after a person is over the age of five”.
Ms Davids referred specifically to some statements made in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013. Specifically, at page 32 of the DSM-V (emphasis added):
Intellectual disability (intellectual developmental disorder) is characterized by deficits in general mental abilities, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience. The deficits result in impairments of adaptive functioning, such that the individual fails to meet standards of personal independence and social responsibility in one or more aspects of daily life, including communication, social participation, academic or occupational functioning, and personal independence at home or in community settings. Global developmental delay, as its name implies, is diagnosed when an individual fails to meet expected developmental milestones in several areas of intellectual functioning. The diagnosis is used for individuals who are unable to undergo systematic assessments of intellectual functioning, including children who are too young to participate in standardized testing.
As identified at the hearing, this manual has since been updated. The current edition is the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision. Washington, DC, American Psychiatric Association, 2022. The relevant section that Ms Davids was referring to at the hearing is shown below for completeness:
Intellectual developmental disorder is characterized by deficits in general mental abilities, such as reasoning, problem solving, planning, abstract thinking, judgment, academic learning, and learning from experience. The deficits result in impairments of adaptive functioning, such that the individual fails to meet standards of personal independence and social responsibility in one or more aspects of daily life, including communication, social participation, academic or occupational functioning, and personal independence at home or in community settings. Global developmental delay, as its name implies, is diagnosed when an individual fails to meet expected developmental milestones in several areas of intellectual functioning. The diagnosis is used for individuals younger than 5 years who are unable to undergo systematic assessments of intellectual functioning, and thus the clinical severity level cannot be reliably assessed (Srour and Shevell 2014; Waggoner et al. 2018). Intellectual developmental disorder may result from an acquired insult during the developmental period from, for example, a severe head injury, in which case a neurocognitive disorder also may be diagnosed.
Ms Davids explained that the significance of whether a person is diagnosed with intellectual disability (‘ID’) (or intellectual developmental disorder) or global developmental delay (‘GDD’), is that the latter diagnosis does not have “severity levels”. Ms Davids said that the diagnosis given, will determine the types and aims of the therapies delivered to the person. Specifically, Ms Davids gave evidence that if a person is diagnosed with GDD then the therapies should aim to maximise the person’s function, whereas is the person is diagnosed with severe ID, the goal will be to provide support to them, because the therapists will not expect any significant change.
At the hearing, Ms Davids opined that based on her observations of MCCT, she thinks that he has “the potential to make significant gains if he is provided with appropriate interventions”.
Mr Lessing gave an account of F’s evidence to Ms Davids at the hearing and asked her to make observations about it. Ms Davids said that many of the behaviours which had been described by F, further confirmed her view that MCCT is unlikely to have a severe ID. She said it also caused her to question the severity of the level of MCCT’s ASD. Ms Davids said that autistic children do not play, hug or interact in the way that F has described. Ms Davids referred to MCCT having the ability to be interested, and engaged, in activities that he found to be interesting. Ms Davids recounted that during the assessment MCCT responded to her when she signalled to him to stop when he was running towards her. She said he stopped and ran in a different direction which was quite appropriate. Ms Davids considered it to be interesting that F had reported that he had not observed MCCT to have any meltdowns or trantrums. Ms Davids said that her thoughts about this are that this may be because when MCCT is with F, he is in an environment where there are clear boundaries and MCCT understands what is expected of him. Ms Davids said that during the assessment in M's home, she saw a lack of boundaries and expectations on MCCT’s behaviours.
Mr Lessing asked Ms Davids whether it remained her opinion that MCCT does not require any increase in direct support worker hours to which she answered “Yes”. Ms Davids opined that it is more appropriate for support to be provided to M to support her to support MCCT, and that MCCT does not need “direct” support hours.
Ms Lessing asked Ms Davids whether she had observed any limitations in M to be able to provide appropriate support to MCCT. Ms Davids said that she had not observed any physical reason why M could not support MCCT appropriately as described above. Ms Davids added, however, that she does not think M has the parenting skills to be able to do this. Ms Davids explained that when she was in M’s home, M “rarely interacted” with MCCT unless she was encouraged to do so. Ms Davids said that GM had to encourage M to provide MCCT with assistance and to interact with MCCT. Ms Davids said that when M was encouraged to do so, she could assist MCCT to go to the toilet, get dressed and to eat. Ms Davids added that she did not feel she could comment on M’s ability to intervene in respect of MCCT’s behaviours or outbursts, because “nobody did anything about that, and they did not have strategies to address it”.
Mr Lessing asked Ms Davids is she considered if there was any reason why MCCT needed a support worker separate from M’s support worker. Ms Davids answered, “No”. Ms Davids was invited to comment on GM’s evidence that a second support worker was needed to cater for the times when M needed to go to the toilet or to the shower. Ms Davids said she was unable to understand GM’s evidence in this regard because she had observed M going to the toilet by herself. Ms Davids said she had also observed M taking MCCT to the toilet herself (that is, without a support worker). In relation to showering, Ms Davids said that it was unclear to her why M would need someone to assist her and if she needed a support worker to help her adjust the water temperature, that this could be done in a matter of seconds. Ms Davids also said that a mixer designed to prevent the temperature rising above a set temperature could also be installed for the cost of a “few hundred dollars”. Ms Davids said that AT could address the problem of a need to regulate the water temperature.
Ms Davids said that when she undertook the functional capacity assessment, that she had asked M to demonstrate the task of washing dishes. Ms Davids said that GM had “stepped all over [M] and she wasn’t allowed to use the hot water tap”. Ms Davids said that GM had told her that M was not allowed to go near anything hot, including the toaster or a kettle. Ms Davids said she had included some photographs in her report of a “safety” kettle and toaster which could be used.
Regarding MCCT’s sleeping problems, Ms Davids gave evidence at the hearing that MCCT’s sleeping routine should change and that he should be put in his own bedroom and assisted to develop his sleeping routines. Ms Davids opined that F’s evidence about MCCT falling to sleep quickly when staying with him, suggests that M’s behaviour is keeping MCCT awake at night.
Ms Davids gave evidence at the hearing that she found MCCT to be more functional than his therapists had described him to be.
Inconsistencies between the evidence of Ms Davids and MCCT’s treating OT and other therapists
There were significant inconsistencies between the evidence of Ms Davids and MCCT’s treating OT and other therapists.
In closing submissions, GM asserted that MCCT’s and M’s situation will not be resolved by two or three days of training. GM asserted that MCCT requires services or support on a daily basis. GM said that these services were recommended after follow-up visits with specialists. GM highlighted that MCCT has been seeing those specialists for four years, that they are from different medical centres, and not only after a one-day assessment (which the Tribunal understood to be a reference to the assessment conducted by Ms Davids which took place on a particular day). GM said that the SW Assistance Supports will enable MCCT to function in his daily life and “to get self-care”, “have control over this own life” and “to improve as much as he can”.

The NDIA highlighted the concerns raised by Ms Davids in her report about the contents of the reports issued by MCCT’s treating therapists. The NDIA contends that while those reports are quick to identify MCCT as having significant disability-related needs and focus on diagnoses, when making recommendations in relation to capacity building therapy, there is a lack of evidence about what intervention will be pursued, how the outcomes will be measured and why the provision of additional support worker hours would be effective or beneficial for MCCT. The Tribunal agrees.
The Tribunal preferred the evidence of Ms Davids. Ms Davids undertook a lengthy in-person functional capacity assessment in M’s home allowing her to closely observe M and MCCT over many hours, as well to observe the dynamic of the interactions between MCCT/M and GM and some of their support workers. Ms Davids was called as a witness at the hearing of MCCT’s application and made available for cross-examination, whereas none of MCCT’s treating therapists were called as witnesses as mentioned above. There was no reasonable explanation as to why they were not called as witnesses.
At the hearing, GM and F had an opportunity to cross-examine and to challenge Ms Davids’ evidence. They did not do so. The Tribunal found Ms Davids to be a forthright, logical and credible witness and accepts her evidence as to the observations she made of MCCT and the conclusions she reached about his disability-related care needs. When asked to provide explanations for her findings and conclusions at the hearing, she was able to do so clearly and logically. Ms Davids’ opinions also aligned with the evidence given by F in respect of the time that MCCT spends with F. The Tribunal has decided to attribute less weight to the evidence of GM because although she spends a significant amount of time with MCCT (that is, about three hours a day) according to GM’s own evidence, she does not provide direct care for MCCT. GM has stated that she is only able to provide M and MCCT with “emotional support”.
In light of this, the Tribunal considers it appropriate to afford little weight to the opinions and recommendations set out in the reports of MCCT’s treating allied health professionals and medical specialists and instead, accepts the evidence and opinions of Ms Davids to inform the decision of the Tribunal in relation to the request for the SW Assistance Support.
The NDIA contends that the evidence does not support a finding that MCCT requires support worker assistance beyond the 10 hours per week for which he is already funded under this NDIS plan. The Tribunal accepts this contention for the reasons outlined below under the hearing “Mandatory criterion under s 34(1)(d) is not met”.
The NDIA contends that the Tribunal should take into account that M is already receiving significant support worker assistance under her NDIS plan and that some of that support is directed at assisting M to fulfil her parenting duties in respect of MCCT. The Tribunal accepts this contention.
Mandatory criterion under s 34(1)(d) is not met
Under s 34(1)(d) of the NDIS Act, the Tribunal must be satisfied that the SW Assistance Support “will be, or is likely to be, effective and beneficial” for MCCT, “having regard to current good practice”.
Rules 3.2 and 3.3 of the Supports for Participants Rules, reproduced below, elaborate upon the matters to be taken into account when the Tribunal considers the mandatory criteria under s 34(1)(d):
Effective and beneficial and current good practice
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
The Tribunal had taken into account the evidence of lived experience of GM and F as given comprehensively during the four-day substantive hearing before the Tribunal, as outlined in detail above. The Tribunal has also set out the recommendations of MCCT’s treating clinicians and doctors and weighed them up against the recommendations of Ms Davids. The Tribunal has decided to place more weight on the opinions and recommendations of Ms Davids for the reasons set out above. Ms David considers that no hours of direct support assistance are required by MCCT and she does not support GM’s request for an increase in the number of hours of support worker assistance to be provided directly to MCCT.
The Tribunal considers that GM has high expectations of the level of supervision and assistance by paid support workers of MCCT and M, which is not justified on the basis of the clinical opinions of Ms Davids. The Tribunal considers that GM is at liberty to spend more time with MCCT and with M herself to supervise them, if she considers this to be necessary to keep them safe. The Tribunal is not persuaded that such intense direct supervision of and assistance given to MCCT for 10 hours per day, in addition to the support being provided to M to assist her to care for MCCT as currently funded under her NDIS plan, will be effective or beneficial for MCCT.
The Tribunal accepts the evidence of Ms Davids that there are no identifiable and legitimate reasons why the support workers who are presently attending at M’s home are unable to care for M to assist M to ensure that MCCT’s care needs are met. The Tribunal does not accept GM’s evidence that the same support worker is unable to meet the needs of both M and MCCT when present in their home or when accessing the community. The Tribunal considers that a skilled support worker is reasonably expected to be able to support persons with different types of support needs.
The Tribunal finds that M can go to the toilet independently herself and she can take MCCT to the toilet by herself. The Tribunal finds that M can also shower independently after the task of initially regulating the water temperature is undertaken for her by a support worker or by using a mixer fitted within the home. The Tribunal finds that based on the evidence of F that MCCT is able to be left unsupervised for short periods of time, say, when he is watching YouTube on his iPad, to allow for the support worker in the household to attend to any momentary individual needs of M. The Tribunal finds that it is well within reach for MCCT to be able to sleep through nights, like he does at F’s home, if M and the paid support worker in the household enforces a strict regimen of MCCT sleeping in his own room away from M (and M doing the same).
The Tribunal is not satisfied that it will be, or is likely to be, effective and beneficial to increase the number of hours of support worker assistance to be given directly to MCCT, as requested by GM in seeking the SW Assistance Support. The Tribunal considers it appropriate that the current funding of 10 hours per week of direct support worker assistance to MCCT should remain as it is, and not be increased.
The Tribunal concludes that the provision of increased hours of support worker assistance to MCCT is not effective or beneficial and does not meet the mandatory “reasonable and necessary supports” criteria under s 34(1)(d) of the NDIS Act. As the criteria under s 34(1) are cumulative, it is not necessary to proceed with a consideration of whether the other mandatory criteria under s 34(1) are met, in respect of this SW Assistance Request.
The Tribunal concludes that the SW Assistance Request is not a “reasonable and necessary support” under s 34(1) of the NDIS Act.
CONCLUSION
The Tribunal affirms the Decisions Under Review.
In practical terms, this means that the Current SOPS approved on 3 June 2025 forming part of MCCT’s NDIS plan, remains on foot and MCCT will be provided with NDIS supports in accordance with this plan.

Dates of hearing: 27, 28, 29 & 30 May 2025

Applicant: Self-Represented

Counsel for the Respondent: Mr J Lessing

Solicitors for the Respondent: Sparke Helmore Lawyers

Dates of hearing:	27, 28, 29 & 30 May 2025
Applicant:	Self-Represented
Counsel for the Respondent:	Mr J Lessing
Solicitors for the Respondent:	Sparke Helmore Lawyers