MGBY and National Disability Insurance Agency (NDIS) - [2025] ARTA 38

MGBY and National Disability Insurance Agency (NDIS) [2025] ARTA 38 (10 January 2025)
Applicant/s:  MGBY
Respondent:  National Disability Insurance Agency
Tribunal Number:                2022/7832

Tribunal:General Member L Proske
Place:Adelaide
Date:10 January 2025

Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
1. The statement of participant supports specifies that the reasonable and necessary supports include:
a)6 hours of podiatry
b)1 pair of orthotics subject to quote
c)12 hours of physiotherapy
d)45 hours of Specialist Behavioural Intervention Support and 20 hours of Training in Behaviour Management Strategies

2.    All other supports in MGBY’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro-rata from the date on which the supports in paragraph [1] are included in MGBY’s statement of participant supports until the reassessment date.
3.    The management of funding for reasonable and necessary supports under MGBY’s plan is to remain the same as the management of funding for those supports as specified in MGBY’s existing statement of participant supports, except for the management of funding for support coordination which is to be changed from Agency-managed to plan-managed.
4.    The date the Respondent must reassess MGBY’s plan is to be 12 months after the date on which the supports in paragraph [1] are included in MGBY’s statement of participant supports.

.................[SGND].......................................................
General Member L Proske
Catchwords
National Disability Insurance Scheme – Statement of Participant Supports – reasonable and necessary support – Anat Baniel Method – effective and beneficial – decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)
Cases
Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Secondary Materials
NDIS Guideline, ‘Reasonable and Necessary Supports’ updated 22 September 2024
NDIS Guideline, ‘Creating your plan’ updated 3 October 2024

NDIS Guideline, ‘What principles do we follow to create your plan?’ updated 22 September 2024
Statement of Reasons
BACKGROUND AND JURISDICTION

The Applicant (MGBY) is 10 years old and lives with his mother (Ms MGBY). MGBY has been diagnosed with autism spectrum disorder (ASD) Level 2 and attention deficit hyperactivity disorder (ADHD). He is a participant of the National Disability Insurance Scheme (NDIS).
On 16 August 2022, the Chief Executive Officer (CEO) of the National Disability Insurance Agency (Respondent) approved a statement of participant supports (SOPS) for inclusion in MGBY’s plan (original decision). That plan was for the period 16 August 2022 until 15 August 2024 and included funded supports totalling $26,882.69.[1] On 17 August 2022, Ms MGBY requested that the original decision be reviewed, and on 6 September 2022 a reviewer confirmed the original decision (internal review decision).[2]
[1] Exhibit 1 (E1), 67.
[2] E1, 14, 52.
On 23 September 2022, Ms MGBY made an application to the Administrative Appeals Tribunal (AAT) for review of the internal review decision.[3] The AAT had jurisdiction to review the internal review decision under s 103(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), in combination with s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).[4]
[3] E1, 1.
[4] All sections referred to in this Statement of Reasons, including in the footnotes, are sections in the National Disability Insurance Scheme Act 2013 (Cth) unless otherwise stated.
The Administrative Review Tribunal (ART) was established on 14 October 2024 and replaced the former AAT.[5] MGBY’s review application was not finalised before the transition to the ART. Proceedings in the AAT that were not finalised before the transition to the ART must be continued and finalised by the ART.[6] In this Statement of Reasons, the ART will hereafter be referred to as ‘the Tribunal’.
[5] s 8 of the Administrative Review Tribunal Act 2024 (Cth).
[6] Item 24, Part 5 to Schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
ISSUES ON REVIEW
The internal review decision considered whether MGBY’s SOPS should include funding for further supports, specifically additional support worker assistance, psychotherapy, music therapy and Anat Baniel Method (ABM).[7] The Tribunal understands that the supports sought on review have evolved over time, and several of the requested supports were resolved between the parties and implemented following remittal of the decision under review for reconsideration.[8]
[7] E1, 14.
[8] Respondent’s Statement of Facts, Issues and Contentions (RSFIC), [8], [9].
At the commencement of the hearing, the Tribunal sought to confirm with the parties which requested supports remained in issue. The parties advised the Tribunal that they agreed:
a)    MGBY’s SOPS should include additional funding for 6 hours of podiatry per year and orthotics;
b)    The management of the funding for support coordination in MGBY’s SOPS is to be changed from NDIA-managed to plan-managed.
c)    The requested supports which remained in issue on review included:
i)   12 hours of physiotherapy per year
ii)     26 hours of psychotherapy/art therapy (art therapy) per year
iii)   24 hours of ABM per year.
The hearing was conducted over 2 days. After oral evidence had concluded and before making oral closing submissions, the Respondent informed the Tribunal and Ms MGBY that their updated position was that MGBY’s SOPS should include additional funding for the following reasonable and necessary supports:
a) 12 hours of physiotherapy
b) 45 hours for Specialist Behavioural Intervention Support and 20 hours for Training in Behaviour Management Strategies.
Upon consideration of the Respondent’s updated position, Ms MGBY informed the Tribunal and the Respondent that she no longer pressed for funding for art therapy, and the only support which remained in issue on review was the request for funding for 24 hours of ABM per year.
The issue therefore to be determined by the Tribunal is whether 24 hours of ABM is a reasonable and necessary support that will be funded in MGBY’s SOPS.
LEGISLATION AND POLICY
The objects of the NDIS Act, and the principles guiding actions under the NDIS Act, are set out in ss 3 and 4. In giving effect to the objectives of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[9]
[9] s 3(3)(b).
Chapter 3 of the NDIS Act provides the statutory framework for individual plans under which NDIS supports will be funded for participants.[10] Section 17A prescribes principles to which regard must be had when performing functions and exercising powers under Chapter 3 of the NDIS Act. The preparation, variation, reassessment and replacement of a participant’s plan, and the management of funding for supports under a participant’s plan, should so far as reasonably practicable be guided by principles relating to plans set out in s 31. A participant’s plan must include the participant’s statement of goals and aspirations and SOPS.[11]
[10] s 8.
[11] ss 33(1), 33(2).
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act) commenced on 3 October 2024.[12] The Amending Act made a range of amendments to the NDIS Act. Those amendments included, but were not limited to, the insertion of a new definition of ‘NDIS Support’ at s 10, an amendment to s 33(5) which prescribes what is required when deciding whether to approve a SOPS, amendments to s 34 which sets out criteria which must be satisfied in relation to reasonable and necessary supports, and amendments to ss 43 and 44 regarding plan management. Those provisions, as amended, apply to MGBY and any approval or variation of MGBY’s SOPS.[13]
[12] s 2 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act).
[13] Items 124, 129, 132 of the Amending Act.
In deciding whether to approve a SOPS, the CEO or the Tribunal on review, 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;
(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.[14]
[14] s 33(5).
Section 34(1) provides that:
For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
f)the support is an NDIS support for the participant.
Relevant to this application, the Minister has made the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports Rules) Transitional Rules 2024 (Cth) (Transitional Rules). These are an important part of the legislative scheme.[15]
[15] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [43].
Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the NDIS. These are essentially policy documents. The Guidelines ‘Reasonable and Necessary Supports’ (Supports Guideline), ‘Creating your plan’ (Plan Guideline) and ‘What principles do we follow to create your plan?’ (Principles Guideline) are relevant to this application. The Tribunal will take these into account unless there are cogent reasons not to.[16]
[16] Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
EVIDENCE AND SUBMISSIONS
The Respondent filed T-Documents on 29 September 2022 under s 37 of the AAT Act and an agreed joint tender bundle on 28 October 2024. The T-Documents and the joint tender bundle were received into evidence at the commencement of the hearing and marked ‘Exhibit 1’ and ‘Exhibit 2’ respectively. The following documents were also received into evidence at the hearing:
a) D Wu et al, ‘A Biomarker Characterizing Neurodevelopment with applications in Autism’ (2018) 8 Scientific Reports 1, marked ‘Exhibit 3’
b) E Torres et al, ‘Autism: the micro-movement perspective’ 7 Frontiers in Integrative Neuroscience 1, marked ‘Exhibit 4’.
The hearing was conducted by Microsoft Teams on 12 and 13 November 2024. MGBY was represented by Ms MGBY. Ms MGBY and Dr MW gave oral evidence at the hearing.
The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) on 26 September 2024. Ms MGBY filed a Summary of Arguments (MGBY’s Summary) in reply on 11 October 2024.[17] On 29 October 2024, the Respondent filed submissions regarding the application of the Amending Act to MGBY’s review application. The parties also made opening and closing submissions at the hearing.
[17] Exhibit 2 (E2), 1.
The Tribunal has considered the written evidence, oral evidence and submissions referred to above at paragraphs [17] to [19]. Much of that evidence related to requested supports which were ultimately resolved between the parties.
CONSIDERATION
Ms MGBY is seeking funding for 24 hours of ABM over 12 months, to be delivered across 6 intensives (requested support).[18] Ms MGBY contends the requested support is reasonable and necessary and should be funded in MGBY’s SOPS. The Respondent contends the requested support is not evidence based and best practice for children with ASD; and is not satisfied the requested support meets the ‘value for money’ or ‘effective and beneficial’ criteria in ss 34(1)(c) and 34(1)(d).[19]
[18] E2, 73, 135
[19] RSFIC, [38].
The Tribunal must determine whether the requested support is a reasonable and necessary support that will be funded in MGBY’s SOPS. The Full Court of the Federal Court considered the phrase ‘reasonable and necessary support’ in National Disability Insurance Agency v WRMF [2020] FCAFC 79, stating:
‘… each limb of the phrase should be given work to do …. Both adjectives qualify the noun ‘support’, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately …
… the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant … [T]he phrase needs to be understood taking into account what has qualified a person as a participant, and the links between a person’s impairment and their full participation in the community…’[20]
[20] National Disability Insurance Agency v WRMF [2020] FCAFC 79, [149]-[151].
Ms MGBY
There are several documents prepared by Ms MGBY in evidence.
In February 2023, Ms MGBY stated MGBY could not catch a ball while moving around, swing on a swing set, or swim.[21] She explained MGBY could not swim because he could not coordinate kicking with arm strokes.[22] Ms MGBY believes MGBYs previous regression could have been avoided had MGBY had access to ABM.[23]
[21] E2, 73.
[22] E2, 73.
[23] E2, 84.
In May 2023, Ms MGBY stated MGBY could not swim due to the lack of articulated brain mapping of his shoulders and spine.[24] Ms MGBY stated she had observed an improvement in MGBY’s mobility, particularly in his pelvis, which meant he could now swing on a swing set which had been beneficial for his confidence, social skills and demeanour.[25] Ms MGBY attributed this development to the ABM intensive MGBY attended in April 2023.[26] Ms MGBY stated she understands the connection between movement and brain development, all people with autism have movement problems, and movement problems are associated with neurodevelopmental issues.[27]
[24] E2, 107.
[25] E2, 107.
[26] E2, 107.
[27] E2, 107, 108.
In November 2023, Ms MGBY suggested there is currently no research showing the efficacy of movement-based therapies and so the only evidence of those is anecdotal.[28] Ms MGBY stated MGBY had recently completed an ABM intensive, and after that he could move his spine and shoulders more freely and could now swing on a swing set, something occupational therapy and physiotherapy had been unable to achieve.[29] Ms MGBY reported that MGBY was looking forward to seeing if he could learn to swim now that he could move his arms, shoulders and spine more freely.[30]
[28] E2, 122.
[29] E2, 122.
[30] E2, 122.
In an undated document filed in January 2024, Ms MGBY stated that ABM was the only thing she had found that develops proprioceptive awareness.[31] Ms MGBY believes ABM will help MGBY have a better awareness of how his joints are able to move, allowing the possibility of learning the movements required to be able to swing on a swing set independently and swim.[32] Ms MGBY also believes ABM will increase MGBYs awareness of his surroundings and of other people, take in the complex nature of team sports and be better able to follow the play and assess what he needs to do at any point, and improve executive function.[33]
[31] E2, 132.
[32] E2, 132.
[33] E2, 132-134.
In October 2024, Ms MGBY stated MGBY’s movement issues were ongoing, notably he could not swim because of his inability to coordinate movement in his hips, spine, neck, and limbs properly to be able to float on his front whilst lifting his head out of the water.[34] He could float on his back but tired quickly due to the neurological barriers to moving his limbs properly and efficiently.[35] Ms MGBY stated medical professionals and allied health therapists do not understand that movement issues are associated with ASD and those issues are neurological rather than physiological.[36] Ms MGBY asserted the requested support would improve MGBY’s movement and in turn promote his neurodevelopment; and by promoting MGBY’s neurodevelopment, the requested support would develop his functional capacity.[37]
[34] E2, 2.
[35] E2, 2.
[36] E2, 1.
[37] E2, 1, 2.
Ms MGBY gave oral evidence at the hearing. Ms MGBY’s oral evidence was to the effect:
a)    MGBY has noticeable difficulty with movement. He can walk however his movement is jerky, he cannot swim, he has significant difficulty with dance, he cannot participate in group sports. Because it is a neurodevelopmental condition, the lack of strength in MGBY’s arms is not from lack of use, it is because the mapping in his brain of his body is incomplete.
b)    The Movement Assessment Battery for Children (M-ABC) is a more detailed measure of movement difficulties than Vineland-3. An occupational therapist is not a physiotherapist. The more specialised someone is in movement the more obvious MGBY’s movement issues are and are able to be described properly as evidence.
c)    She found out about ABM through her own research and reading. Occupational therapy, and to some extent physiotherapy, involve rote repetition. ABM involves repetition with a little bit of variation and getting a person to notice the movement and the differences in movement and that is what gets the brain learning again.
d)    She observed that MGBY was a lot calmer with ABM. For example, at the commencement of the intensive session MGBY would be very fidgety and distractable, however within a few days he was noticeably calmer and open to following instructions within the session.
e)    MGBY does have a paediatrician however he has not seen his paediatrician for quite a while because he cannot offer anything. She spoke to both MGBY’s paediatrician and occupational therapist about ABM, but she thinks they are not legally allowed to recommend something that is not allied health according to their Australian Health Practitioner Regulation Agency (AHPRA) registration, and in any event, they did not know of it.
f)     There is no real effort at finding neurodevelopmental based therapies or programs, which is why she has looked outside of allied health and allopathic medicine. There is a lot of neuroscience research however allied health and allopathic medicine do not seem to use it.
g)    ABM will help MGBY develop his brain function and global skills, which will then filter down to being calmer and having better behaviour because his brain is working better.

In evidence are numerous reports and articles filed by Ms MGBY during the review. These broadly relate to:
a)    The role of proprioception in children’s motor development; ASD associated differences in proprioception, motor learning, movement impairments and movement quality; the comorbidity of motor difficulties or disorders and ASD; and the potential for the measurement and assessment of movement to inform ASD diagnosis and intervention.[38]
b)    What the Feldenkrais method is, and the effectiveness of the Feldenkrais method and mindful movement practices.[39]
c)    The origins of ABM, how ABM works, the effectiveness of ABM, and how ABM is different from traditional systems of teaching, therapy, and medical intervention.[40]
d)    Patient outcomes after Applied Behaviour Analysis (ABA) for ASD, ethical concerns with ABA for ASD, and ethical concerns regarding ABA autism intervention research.[41]
[38] E2, 155-164; 165-172; 173-185, 186-194, 195-200, 202-210, 355; E3; E4.
[39] E2, 293-303, 316-317, 319-330, 331-353.
[40] E2, 212-226, 229-230, 316-317
[41] E2, 238-245. 246-285, 286-292.
Ms BK, ABM Practitioner
There are 3 undated letters authored by Ms BK in evidence.[42] A letter from Ms BK suggests she is a psychologist and a certified ABM practitioner.[43] MGBY has attended 3 ABM intensives delivered by Ms BK in April, June and August 2023.[44] Each ABM intensive includes 8 x 30-minute sessions delivered over 4 days.[45] Ms BK reported that as a result of the 3 ABM intensives MGBY attended in 2023, he became calmer within the lesson and in his daily life; he needed less prompting to start and finish a task; he began to organise his own actions without prompting; his teachers observed he was happier, doing better academically and following the school routine more easily; and Ms MGBY reported she did not need to hold MGBY’s hand in the carpark which was unprecedented.[46]
[42] E2, 136, 139, 142.
[43] E2, 143.
[44] E2, 139.
[45] E2, 143.
[46] E2, 140.
Ms BK has recommended a further 6 ABM intensives over 12 months for MGBY.[47] The quoted cost of the recommended support totals $8,400.00.[48] Ms BK reported that each ABM intensive would focus on moving MGBY closer to his goals, which include an increase in physical, cognitive, self-care and emotional development skills; and an increase in communication and language skills including written communication.[49] The reported objectives of the recommended support include improving MGBY’s awareness of himself and his brain’s ability to learn.[50] Ms BK opines the increasing comfort in his own body should naturally lead to more freedom of movement and a growing incentive and ability to explore and discover himself and his environment.[51]
[47] E2, 140-141; 144.
[48] E2, 141.
[49] E2, 143.
[50] E2, 140.
[51] E2, 140.
Ms AD, Occupational Therapist
Ms AD, an occupational therapist, completed a support plan review in January 2022.[52] Ms AD reported that the BOT-2 assessment results for MGBY in September 2021 indicated he performed at an age equivalent level within the fine motor precision, fine motor integration, bilateral coordination, running speed and agility and balance subtests; at an above average age level within the dexterity subtest; and at a below average age level in the upper limb coordination and strength subtests.[53] During the assessment, MGBY was observed to have some difficulty executing tasks that required both sides of his body to work together in addition to what appeared to be some motor planning difficulties for new motor tasks.[54] Ms AD recommended MGBY access 30 hours of OT over 12 months, one reason for which was to develop his skills in relation to strength and upper limb coordination.[55]
[52] E1, 36.
[53] E1, 36.
[54] E1, 36.
[55] E1, 41.
Ms AD also completed a functional capacity assessment report in December 2022.[56] That assessment involved standardised testing, a parent interview, direct observation and report review.[57] Ms AD reported that MGBY can independently walk and navigate gross motor tasks; but that a review of his gross motor skills in September 2021 identified that he presented with below average skills within the domain of strength and upper limb coordination.[58] Ms AD reported that fine motor skills appear to be a relative strength for MGBY, although she suggested he would benefit from support and intervention with handwriting.[59] MGBY’s results from the Vinelands-3 scale suggested his physical skills were adequate when compared to others his age; he has difficulty catching a ball 2 to 3 feet away; and difficulty colouring in the lines of a simple picture.[60] MGBY’s Sensory Processing Measure 2 results were reported to indicate that his body appears to crave additional proprioceptive input and may find using the appropriate amount of force for tasks challenging functionally.[61]
[56] E2, 49.
[57] E2, 50.
[58] E2, 56.
[59] E2, 56-57.
[60] E2, 47, 52.
[61] E2, 54.
Ms RH, Physiotherapist
Ms RH, a physiotherapist, assessed MGBY in February 2023.[62] This assessment included observations of MGBY and discussions with Ms MGBY.[63] Ms RH reported that MGBY likes to ride his bike and scooter; enjoys climbing, paddling and roller skating; and would like to get better at ball skills to enable him to partake in handball, soccer etc at school with his peers.[64] Ms RH tested MGBY’s gait, jumping, hopping, running, balance and postural control, balance (heel toe walking), range of motion, throwing/catching and strength.[65] Ms RH’s assessment indicated that MGBY has satisfactory gross motor skills in most areas, however throwing/catching and aim of small objects such as balls and beanbags are challenging for him.[66] She recommended monthly physiotherapy to support the development of his gross motor, most importantly ball skills, to enable him to participate in team sports and engage more readily with his peers.[67]
[62] E2, 67.
[63] E2, 67.
[64] E2, 67.
[65] E2, 68-69.
[66] E2, 69.
[67] E2, 69, 70.
Ms RH co-authored a report with a nutritional therapist Ms EV and a psychosocial therapist Ms IM in March 2023.[68] Ms RH, Ms EV and Ms IM are all employed by the same organisation, which at the time of this report provided therapy services to MGBY.[69] That report identified motor skills as an area MGBY experienced challenges.[70] It was opined that foot pain was the main thing limiting MGBY’s ability to participate in daily activities requiring weight bearing.[71] Under the heading ‘Intervention and Support Recommendations’, recommended supports included occupational therapy to support development of a range of skills, including gross and fine motor skills; physiotherapy to support development of physical skills, including MGBY’s ball and other gross motor skills; and podiatry to assess and manage foot pain.[72] With respect to ABM, Ms RH, Ms EV and Ms IM stated:
‘In order to support MGBY’s NDIS goal of having a holistic approach to therapeutic supports, Ms MGBY has undertaken research into the Anat Baniel Method of Neuro Movement. Through further research and conversations with a clinical practitioner of the Anat Baniel Method, it is believed that this approach would be beneficial for [MGBY]; however further information can be provided by [**] who was an [**] based practicing clinician.’[73]
[68] E2, 99.
[69] E2, 99.
[70] E2, 101.
[71] E2, 100-102.
[72] E2, 101-103.
[73] E2, 102.
An undated letter from Ms RH states that one of the less understood challenges of ASD is the physical and physiological manifestations of the diagnosis.[74] Ms RH reported that a study in 2020 indicated people with ASD can experience reduced postural control, deviant muscle tone and tension, deviant sensory processing, lack of conscious awareness, difficulties with body boundaries and coordinating movements, lack of anticipatory preparations of movements, and need of cognitive thought to control movement.[75] Ms RH also reported whilst further studies are needed to better understand the links between ASD and joint hypermobility related disorders and pain, there are studies that link and explore the 2 diagnoses occurring simultaneously.[76] Ms RH again recommended physiotherapy to support MGBY to continue to build his skill level and confidence with sports and activities.[77]
[74] E2, 150.
[75] E2, 150.
[76] E2, 151.
[77] E2, 151.
Dr MW, Neuropsychologist
During the review, the Respondent obtained reports dated 15 April 2024 and 16 September 2024 from Dr MW, a clinical neuropsychologist.[78] Both reports were prepared on the papers. Having reviewed a range of evidence submitted by Ms MGBY during the review, including articles and extracts included within Exhibit 2 at pp 155 to 237, Dr MW reported:
a)    A review of the literature failed to identify a single well-designed randomised double-blind study of either the Feldenkrais method or ABM. In several cases, outcome measures were less than adequate. Several reports relied upon the reports of parents or of ‘experts’ who did not identify any objective quantifiable evidence.[79]
b)    A publication from the Peninsula Cerebra Research Unit at Exeter University, an independent research unit focussed on providing best evidence for parents and teachers when seeking treatment for their child, concluded that children with ASD did not obtain any benefit from either Feldenkrais or ABM.[80]
c)    There is no objective evidence in the documentation provided to him that supports a view MGBY has achieved any functional outcomes because of ABM.[81] Based on the report of Ms AD, he did not consider MGBY required further intervention in relation to his fine motor provision, fine motor integration bilateral coordination, running agility and balance.[82] Nor was there any evidence provided to indicate that MGBY’s cognitive development, communication and language skills have benefitted from ABM.[83] There is no documentation to suggest that baseline measures were ever obtained prior to any intervention.[84]
[78] E2, 400, 411.
[79] E2, 403, 404.
[80] E2, 403, 406.
[81] E2, 404.
[82] E2, 404, 417.
[83] E2, 404.
[84] E2, 404.
With respect to evidence-based therapies Dr MW considered will assist MGBY to increase his functional capacity, he stated that the opinion of a paediatrician is an essential step in diagnosing and outlining a program of intervention, and given MGBY has been diagnosed with ASD and ADHD, suggested a combination of Cognitive Behaviour Therapy (CBT) and ABA would appear to be appropriate.[85]
[85] E2, 405, 414.
Dr MW gave oral evidence at the hearing. His oral evidence was to the effect:
a)    He had not heard of ABM prior to being asked to provide a report in this matter, however he had heard of the Feldenkrais method and that is not an accepted form of treatment for ASD or ADHD.
b)    Every week he keeps up to date with access to journals and research articles.
c)    He researched the literature on whether ABM was an effective and beneficial therapy for a child with ASD and/or ADHD and could not find any convincing evidence apart from that of practitioners and parents with usually single cases and no adequate comparison between a control group and a therapeutic group. The only literature that reviewed this is from an organisation in Exeter University which specialises in the evaluation of various therapies to determine whether they are effective or not, and the conclusion drawn by that reputable organisation was that there is no clear evidence that either Feldenkrais or AMB is effective.
d)    The Respondent has provided him with copies of Exhibits 3 and 4, which he has now read, however they do not change his view in relation to the effectiveness of the Feldenkrais method and ABM. Exhibits 3 and 4 were interesting reports dealing with micro movements linking the sensory function, and whilst at this moment in time one would describe that research as having considerable promise, a lot more research is required to determine whether it can have more general applications. He was unaware of any ongoing research in this field.
e)    When he goes to see a doctor or specialist, he expects they will give him a treatment that has been demonstrated to be effective using a randomised double-blind controlled trial, which is the gold standard of how you evaluate outcomes for treatment research.
f)     He has carefully considered what would be the effective and beneficial supports that he would recommend for MGBY, considering current good practice, and it would include a multidisciplinary approach that addresses a range of issues and involves collaboration between a range of therapists.
g)    When asked whether he took a behaviourist approach to ASD, rather than a trauma informed approach, he responded that he thinks one needs to take a combination of approaches, that is a multidisciplinary, multi-focused approach to the intervention. When asked whether in his opinion an occupational therapist, a speech pathologist and a podiatrist were enough for MGBY, he responded ‘no’, and suggested what needs to be looked at is the combination of a physiotherapist (although he then noted his recollection of a reference in the material from a physiotherapist describing MGBY’s motor skills as quite adequate), an occupational therapist, and a psychologist with skills in social skills training and also behaviour management. With respect to a podiatrist, that was not something he had really come across, but suggested if that is part of the necessity, that is fine.
For the reasons that follow, the Tribunal is not satisfied that the requested support will be, or is likely to be, effective and beneficial for MGBY, having regard to current good practice.
In explaining why funding is sought for the requested support, Ms MGBY has placed particular emphasis on the effectiveness of ABM for improving MGBY’s movement. However, a point of contention between the parties is whether MGBY does experience movement issues, and if so, the particulars of those movement issues. Ms MGBY contends there is a 100 percent correlation between movement difficulties and ASD. However, on the material before it the Tribunal does not accept that contention, and instead finds that some research has found that the occurrence of movement difficulties or impairments is higher amongst those with neurodevelopmental disorders, including ASD, than those with typical neurological development. It follows from this that the Tribunal is not persuaded MGBY’s ASD diagnosis in and of itself means he does in fact experience movement issues.
Ms MGBY asserts that MGBY’s movement quality is impaired, his proprioceptive awareness is poorly developed, he lacks strength in his upper limbs, and he has trouble coordinating movements involving multiple body parts. The Tribunal acknowledges that as MGBY’s mother, with whom MGBY has always lived, Ms MGBY has had the benefit of observing MGBY’s movement across his whole life and in multiple settings. However, there is a tension between Ms MGBY’s evidence and the evidence of allied health professionals who have assessed MGBY’s fine and gross motor skills.
Ms RH opined in February 2023 that MGBY has satisfactory gross motor skills in most areas and identified throwing/catching and aim of small objects as a challenge for him. Notably, when asked to explain how any functional limitations experienced by MGBY relates to his ASD diagnosis, Ms RH reported that findings of a 2020 study indicate people with ASD can experience a range of physical and physiological manifestations of the diagnosis. However, Ms RH did not go so far as to opine that MGBY personally exhibits any such manifestations. Consistent with Ms RH’s opinion, in December 2022 Ms AD reported that MGBY’s Vineland-3 results suggest his physical skills were adequate when compared to others his age, but that he has difficulty catching a ball 2 to 3 feet away. Ms AD did however note that MGBY’s September 2021 BOT-2 results identified that he presented with below average skills within the domain of strength and upper limb function.
Having considered the evidence before it, the Tribunal finds that MGBY has satisfactory fine and gross motor skills in most areas, however he does have difficulty throwing and catching small objects like balls which can impact his ability to participate in sports and other activities. To the extent that Ms RH’s and Ms AD’s opinions differ, the Tribunal has preferred and given more weight to Ms RH’s evidence because as a physiotherapist her expertise with respect to movement are more specialised, and her assessment of MGBY was considerably more recent than the BOT-2 results referred to by Ms AD. Because of Ms RH’s specialised knowledge and assessment of MGBY, the Tribunal has similarly preferred and given more weight to her evidence than that provided by Ms MGBY concerning MGBY’s movement.
MGBY completed 3 ABM intensives in 2023. Ms MGBY’s evidence is that she observed MGBY became calmer as the ABM intensives progressed and his mobility improved such that he could move more freely, and he learnt to swing on a swing. Ms BK reported that because of the 3 ABM intensives, MGBY was calmer, more focused when completing tasks, his organisation skills improved, and he was generally doing better at school. The Tribunal accepts that to Ms MGBY’s mind, MGBY’s movement quality and temperament improved whilst he was accessing ABM. However, those observations are anecdotal. Dr MW opined there is no objective evidence that MGBY has achieved any functional outcomes because of ABM, and noted there was no documentation to suggest that baseline measures were ever obtained prior to any intervention. Consistent with Dr MW’s assessment of Ms BK’s written evidence, the Tribunal considers it is left to inference whether, and if so how, MGBY’s reported progress was objectively measured. Nor does Ms BK’s evidence objectively demonstrate any causative link between the therapy provided and MGBY’s reported progress. On the evidence before it, the Tribunal is not persuaded that MGBY obtained any functional outcomes from the ABM intensives he completed in 2023 and finds accordingly.
The requested support has been recommended by Ms BK. Ms BK has made broad assertions about what the purported outcomes of the recommended ABM intensives will be. However, Ms BK has not provided any objective evidence to substantiate her claim the recommended ABM intensives will produce those outcomes. Nor does Ms BK’s evidence address how the outcomes of the recommended support will be objectively measured. The Tribunal accepts that Ms MGBY believes the requested support will improve MGBY’s quality of movement, develop MGBY’s brain function, and benefit MGBY in numerous ways. However, Ms MGBY has no qualification or training in relation to movement or brain development; and the Tribunal has concerns as outlined below in paragraph [49] regarding the articles and reports on which Ms MGBY’s belief is based. The Tribunal therefore has not found Ms BK’s or Ms MGBY’s evidence, as it relates to the purported outcomes that will be achieved for MGBY by the requested support, persuasive.
Ms MGBY’s evidence is that she did speak with both MGBY’s paediatrician and occupational therapist about ABM, but they did not know of it. Ms MGBY gave evidence she thinks they would in any event have been prevented from recommending ABM as an intervention for MGBY because it is not allied health according to AHPRA. Whist Ms IM, Ms EV and Ms RH expressed a view that ABM would be beneficial for MGBY, they did not provide any specific reasoning as to why or how MGBY would benefit from ABM. Further, they did not go so far as to recommend ABM as an intervention for MGBY yet rather suggested further information in relation to ABM could be obtained from a particular ABM practitioner. On the evidence before it, the Tribunal finds MGBY’s treating paediatrician and allied health therapists have not recommended ABM as an intervention for MGBY.
With respect to those articles and reports filed by Ms MGBY, they did not individually or collectively persuade the Tribunal that ABM is an effective and beneficial intervention, or current good practice, for children with ASD. The reported research involved small sample populations and did not always involve a control group.[86] The systematic review of the evidence regarding the effectiveness of the Feldenkrais method – which included 20 studies with a random allocation and a stated control group – included all trials aimed at improving health and/or function, and none of the sample populations were comprised of children with ASD, or developmental delay more generally.[87] One report concluded that there is no research to suggest that the Feldenkrais method or ABM are effective therapies for children with cerebral palsy and made no reference to children with ASD.[88] Other articles report expert opinion based on anecdotal evidence.[89]
[86] With respect to sample size, see for example E2, 293 and E2, 305 which involved only 21 and 30 participants respectively. With respect to the absence of any control group, see for example E2, 293.
[87] E2, 319, 324-325.
[88] E2, 316.
[89] See for example E2, 212, 218.

Dr MW’s evidence was that his review of the literature failed to identify a single well-designed randomised double-blind study of either the Feldenkrais method or ABM; and that a report prepared by a reputable organisation with relevant specialisation concluded that children with ASD did not obtain any benefit from either the Feldenkrais method or ABM. Exhibits 3 and 4 did not change Dr MW’s view regarding the effectiveness of ABM for children with ASD.
Ms MGBY has raised concerns regarding Dr MW’s evidence.[90] Ms MGBY noted that the report cited by Dr MW is 11 years old; disputed that randomised control trials are the highest form of research; and stated that having recommended ABA for ASD puts Dr MW’s reputation, knowledge, and ability to research and critique the literature into question.[91] With respect to those concerns, the Tribunal is not persuaded on the evidence before it that the conclusion drawn by the report cited by Dr MW is outdated. Whilst the Tribunal accepts that a systematic review is generally considered to be a higher form of research than a randomised controlled trial, the only systemic review in evidence is of limited relevance when considering whether ABM is effective for children with ASD, given none of the sample populations within the included trials were comprised of children with ASD, or development delay more generally. The Tribunal is also satisfied based on Dr MW’s qualifications and expertise, as outlined in his reports, and elaborated on during his oral evidence, that he is appropriately skilled to have considered and to comment on published and refereed literature in relation to the effectiveness of an intervention for children with ASD.
[90] E2, 105.
[91] E2, 105, 106.
For the reasons outlined at paragraphs [49] to [51], the Tribunal finds that published and refereed literature does not support a conclusion that ABM is an effective intervention or current good practice for children with ASD, including those who exhibit movement difficulties. Nor is the Tribunal persuaded that there is, at this time, any consensus of expert opinion regarding the effectiveness of ABM for children with ASD.
In circumstances where MGBY has not obtained any functional outcome from the ABM intensives he completed in 2023, Ms BK’s and Ms MGBY’s evidence regarding the purported outcomes of the requested support is not persuasive, the requested support has not been recommended by MGBY’s treating paediatrician or allied health professionals, and the efficacy of ABM for children with ASD is not supported by the published and refereed literature or any consensus of expert opinion, the Tribunal is not satisfied that the requested support will be, or is likely to be, effective and beneficial for MGBY, having regard to current good practice, as is required by s 34(1)(e). It follows that the Tribunal is not satisfied that the requested support is a reasonable and necessary support.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
1.    The statement of participant supports specifies that the reasonable and necessary supports include:
a)6 hours of podiatry
b)1 pair of orthotics subject to quote
c)12 hours of physiotherapy
d)45 hours of Specialist Behavioural Intervention Support and 20 hours of Training in Behaviour Management Strategies
2.    All other supports in MGBY’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be replicated pro-rata from the date on which the supports in paragraph [1] are included in MGBY’s statement of participant supports until the reassessment date.
3.    The management of funding for reasonable and necessary supports under MGBY’s plan is to remain the same as the management of funding for those supports as specified in MGBY’s existing statement of participant supports, except for the management of funding for support coordination which is to be changed from Agency-managed to plan-managed.
4.    The date the Respondent must reassess MGBY’s plan is to be 12 months after the date on which the supports in paragraph [1] are included in MGBY’s statement of participant supports.
I certify that the preceding fifty-four (54)
paragraphs are a true copy of the reasons
for the decision herein of General Member L Proske
………[SGND]……………………..
Associate
Dated: 10 January 2025
Date of hearing:  12, 13 November 2024
Applicant:   Self-represented
Counsel for the Respondent:  Domenic Lipari