NGVL and National Disability Insurance Agency (NDIS)

[2025] ARTA 1752

NGVL and National Disability Insurance Agency (NDIS) [2025] ARTA 1752 (14 August 2025)

Applicant/s:  NGVL

Respondent:  National Disability Insurance Agency

Tribunal Number:                2022/3995

Tribunal:General Member Gooch  

Place:  Adelaide 

Date:14 August 2025  

Decision:  

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that reasonable and necessary supports in the applicant’s statement of participant supports should include:

a.Funding for an Orangutan Plus Funky Monkey Frame with additional accessories including monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapeze and freight to the Applicant’s home at Hillsprings Station;

b.All other supports in the Applicant’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 the Applicant’s statement of participant supports until the reassessment date;

c.The management of the plan is to remain the same as the management currently in place;

d.The review date to be determined by the Agency in consultation with the participant’s nominee.

Statement made on 14 August 2025 at 5:25pm

Catchwords

National Disability Insurance Scheme – reviewable decision of Chief Executive Officer – Statement of Participant Supports – reasonable and necessary supports- Getting the NDIS Back on Track Transitional Support rules – NDIS support – Schedule 1 and 2 -  meaning of ‘standard’ – modification to address functional impairments - early intervention – autism – remote location – specific characteristics of participant - decision set aside

Legislation

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24.

Administrative Review Tribunal Act 2024, ss12, 105

National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 10, 24, 25, 33, 34, 35, 99, 103

National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 Items 129, 138, 139 of Schedule 1

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth);  rr 2.3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6. 3.7, 5.1, 7.8, 7.9, 7.10

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 rr 4, 5, 6, Schedule 1 & 2

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 r7

Cases

Collector of Customs v Gaylor Pty Ltd and Dahlia Mining Co Ltd (1995) 127 ALR 641

Drake and Minister for Immigration and Ethnic Affairs (No. 2) 1979 2 ALD 634

Frugtniet v ASIC [2019] HCA 16

Johnstone and National Disability Insurance Agency [2025] ARTA 106

McGarrigle v National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Scheme v KKTB by her litigation representative CVY22 [2022] FCAFC 81

National Disability Insurance Agency v WRMF [2020] FCAFC 79

Scaramella and National Disability Insurance Agency [2025] ARTA 870

WWWX and National Disability Insurance Agency [2024] ARTA 285

Secondary Materials

NDIS Operational Guidelines – Principles we follow to create your plan, dated 27 April 2025

NDIS Operational Guidelines - Reasonable and Necessary Supports, dated 28 March 2025.

Is Earlier Better? The Relationship between Age When Starting Early Intervention and Outcomes for Children with Austim Spectrum Disorder: A Selective Review Autism Research and Treatment, Vol 2020 at page 319 of Exhibit 1

Reasons for Decision

1. This is a review of a decision of a delegate of the CEO of the National Disability Insurance Agency (‘the Agency’) to reject a request for multiple supports for the applicant in this matter.

2. As the applicant is a child, a pseudonym (NGVL) was assigned at an early stage in proceedings to protect their identity. These reasons will utilise that pseudonym throughout.

3. NGVL is 10-year-old boy living with his parents and siblings on a cattle station some 200km from the nearest regional town centre, Carnarvon, in Western Australia.

4. NGVL gained access to the National Disability Insurance Scheme in 2021 on the basis of impairments attributable to autism spectrum disorder (level two) (ASD) and attention deficit hyperactivity disorder (ADHD).

5. Relying on the details in the Agency’s Amended Statement of Facts Issues and Contentions[1] the history of this application is that:

   a.    On 7 April 2022 a delegate of the CEO of the National Disability Insurance Agency (the Agency) made a decision to approve a statement of participant supports for NGVL for the period 7 April 2022 to 7 April 2023.

   b.    On 12 April 2022 NGVL, through his support co-ordinator, requested a review of that decision.

   c.     On 3 May 2022 a different delegate of the CEO made a decision to affirm the original decision (the decision under review).

   d.    On 17 May 2022 NGVL, through his support co-ordinator, applied to the Administrative Appeals Tribunal (AAT) for review of this decision.

   e.    Through the alternative dispute resolution (ADR) processes of the AAT, agreement was reached on a number of outstanding support requests. A new plan was issued dated 14 March 2024. By sections 100(2) of the National Disability Insurance Scheme Act 2013 (the NDIS Act) this application for review covers that plan.

   f.   At the end of the ADR process a number of supports remained in dispute and the matter was listed for full hearing.

   [1] H1 of Exhibit 1

6. A hearing was held on 19 June 2025 by Microsoft Teams video conference.  NGVL’s mother appeared on his behalf and gave evidence under affirmation.

7. The Agency was represented by Ms Jennifer Flinn of Counsel instructed by the Agency’s Dispute Resolution and Litigation Branch.

8. Ms Rebecca Thompson, occupational therapist, also attended and gave evidence under affirmation.  Ms Thompson had been commissioned to undertake an assessment by the Agency.

9. The Tribunal considered the following documents:

   a.    Consolidated Tender bundle (parties consented to all these documents being available for the Tribunal)– noted as Exhibit 1

   b.    Amended Statement of Facts, Issues and Contentions of the Agency being substituted for the same named document in the Consolidated Tender Bundle. (considered part of Exhibit 1)

   c.     Copy of NGVL’s current plan dated 14 March 2024 – Exhibit 2

10.  After the hearing the Agency submitted:

a.    Closing submissions dated 26 June 2025.

11.  NGVL’s mother was provided with the opportunity to make written submissions after the hearing if she so chose, but to date none have been received.

12.  At the commencement of the hearing NGVL’s mother advised the Tribunal that she no longer wished to pursue any of the outstanding supports except the Funky Monkey Bars equipment.  This is equipment that was to be utilised in conjunction with physiotherapy and occupational therapy telehealth appointments.

13.  NGVL’s mother had been unable to organise any witnesses to attend but requested the Tribunal have regard to the reports already tendered by her son’s treating practitioners.  There was no objection to this process from the Agency.

14.  The Tribunal notes that the reports provided to support the application (from both the applicant and the Agency) are not recent (dated a minimum of 1 year ago).  No submissions were made to the effect that due to their age the Tribunal could not rely on this information. I will proceed on the basis both parties are content that I do.

15.  From 14 October 2024 the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be applications for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.[2] This decision and statement of reasons is made by the Tribunal.

[2] Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) Schedule 16, item 24

16.  The Tribunal is conscious that this matter has been on foot since 2022 and to the extent that any of the requested supports are determined to be reasonable and necessary, NGVL has been deprived of these for some three years.  In the circumstance of early intervention requirements this is unacceptable.

17.  For the reasons set out below the Tribunal sets aside the decision under review.

ISSUES

18. The issue before the Tribunal is whether the requested support, the Funky Monkey Bars, is a ‘reasonable and necessary’ support for the purposes of sections 33 and 34 of the NDIS Act.

JURISDICTION

19.  A decision to approve a statement of participant support is a reviewable decision.[3] 

[3] Item 4 and 6 of section 99 of the NDIS Act

20.  On 7 April 2022 a delegate of the CEO made a decision to approve a statement of participant supports.

21.  NGVL requested a review of the original decision and on 3 May 2022 a different delegate of the CEO affirmed the original decision (the decision under review).

22. Section 103 of the NDIS Act provides an application may be made to the Tribunal for review of an internally reviewed, reviewable decision.

23. Per section 12 of the Administrative Review Tribunal Act 2024 I am satisfied the Tribunal has jurisdiction to conduct this review.

THE LEGISLATIVE FRAMEWORK

24. The NDIS Act sets out the provisions by which the Agency is created and the Scheme and the manner in which it is to be accessed and administered, is described.

25. Chapter 1, Part 2 of the NDIS Act sets out the Act’s objects and the principles to be applied when undertaking actions under the Act.

26.  The objects describe aspirations aimed at supporting the independence, choice and control and social and economic participation of people with disability.  The provision of high quality and innovative supports that enable people with disability to maximise independent lifestyle and the provision of reasonable and necessary supports, including early intervention supports for participants, were to be directed at achieving these objects for participants of the Scheme.[4] 

[4] Section 3 of the NDIS Act

27.  The principles stress the rights of people with a disability to dignity, to participation and contribution to social and economic life and to the capacity to realise their potential in pursuit of their goals.[5]

[5] Section 4 of the NDIS Act

28.  Both the objects and the principles state that in giving effect to the objects of the Act, or in exercising powers under the Act, regard is to be had to the need to ensure the financial sustainability of the Scheme.[6]

[6] Section 3(3)(b) and 4(17) of the NDIS Act.

29. Access issues are dealt with in Chapter 3, Part 1 of the NDIS Act. These provisions set out the criteria an applicant must meet (under either the disability requirements or under the early intervention requirements) in order to become a participant in the Scheme.

30. Part 2 of Chapter 3 sets out matters in relation to the development and administration of participants’ plans. Generally, a participant’s plan must include:

a.    a statement of participant goals and aspirations which they have prepared;[7] and

b.    a statement of participant supports which includes the general supports that may be provided and the reasonable and necessary supports that will be funded under the Scheme.[8]

[7] Section 33(1) of the NDIS Act

[8] Section 33(2) of the NDIS Act

31. Section 33(5) provides a list of all the factors the CEO (or other decision maker) must consider when deciding whether or not to approve a statement of participant supports. These are:

a.    the participant’s statement of goals and aspirations;

b.    relevant assessments conducted in relation to the participant;

c. being satisfied in relation to all the criteria set out in section 34;

d. having regard to the NDIS Rules made for the purpose of section 35 of the Act;

e.    having regard to the principle the participant should manage his or her plan to the extent they wish;

f.   having regard to the operation and effectiveness of any previous plan of the participant; and

g.    the history of use of NDIS funds in earlier plans.

1. Section 34 of the NDIS Act sets out all the matters a decision maker must be satisfied of before determining a specific support should be included in a statement of participant supports.

2. Section 35 of the Act sets out matters which Rules made in relation to the statement of participant supports may address. These (among other things) include methods or criteria to be applied in deciding supports which will be funded and specifically identifying those supports that will and will not be funded under the Scheme.

3. The relevant rules applicable to this review include:

   a.National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); (the Support Rules)

b.National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules);

c.National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (the Miscellaneous Rules)

1. The Agency also publishes Guidelines to assist in making decisions in accordance with the NDIS Act. The Guidelines are policy documents without legislative force and the Tribunal is not bound by them. However, it is generally held they should be applied where there is no conflict with the terms of the Act.[9]  The relevant operational guidelines in this matter are:

   a.    NDIS Operational Guidelines – Principles we follow to create your plan (Plan Principles Guidelines) dated 27 April 2025

   b.    NDIS Operational Guidelines - Reasonable and Necessary Supports (the Support Guidelines) dated 28 March 2025.

   [9] Re Drake and Ministrer for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

THE APPLICATION OF THE AMENDING ACT

1. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Amending Act) has made significant changes to the legislative scheme through amendments to the NDIS Act and the addition of transitional rules. This Act commenced on 3 October 2024.

37. Item 129 of Schedule 1 of the Amending Act provides that sections 33, 34 and 35 as amended (all of which deal with the development of participant plans) apply to any old framework plans which are approved or varied on or after the Amending Act’s commencement.

38.  NGVL’s plan is an ‘old framework’ plan for the purposes of the Act and was last amended and approved on 13 March 2024. This is before the amendments commenced. 

39.  NGVL’s mother expressed the opinion the amendments should therefore not apply to this application.

40.  There is an argument that the Tribunal, in making a decision to set aside a decision of the CEO on review, is not approving or varying a statement of participant supports (so as to enliven the application of the amendments) but rather is simply changing the CEO’s decision.  The date of effect of this variation to the decision would be the date the original decision was made, which would be well before the commencement of the Act.[10] It is therefore argued the amendments should not apply.

[10] Collector of Customs v Gaylor Pty Ltd and Dahlia Mining Co Ltd (1995) 127 ALR 641

41.  The Agency was asked to make submissions in relation to this argument.

42.  For whatever reason, whether it was an oversight of the Agency or a Registry issue, I did not receive these submissions until very recently by which time I had considered the issue myself.

43.  I acknowledge the Agency’s submissions which reach the same conclusion I had reached.

44.  In summary it is the Agency’s position that[11]:

[11] Respondent’s Submissions on the Effect of the Amendments to the National Disability Insurance Scheme Act 2013 on This Application.

a.Decisions that are reviewable by the Tribunal are those decisions set out in the table in section 99 of the NDIS Act.

b.These decisions include a decision by the CEO to approve or vary a statement of participant supports in a participant’s plan.

c.Relying on the findings of Mortimer J in McGarrigle v National Disability Insurance Agency [201] FCA 308 at [85] the Agency reminds the Tribunal that:

the function being performed by the Tribunal is to approve, vary or modify the supports as set out in a participant plan. In performing that function, the Tribunal must have regard to the matters set out in s33(5) and form its satisfaction in accordance with section 34.

d.Section 105 of the ART Act requires the Tribunal to either:

(i)    Affirm the revised decision;

(ii)   Vary the revised decision;

(iii)  Set aside the revised decision and make a decision in substitution; or

(iv)  Set aside the revised decision and remit the matter to the CEO for reconsideration in accordance with orders or recommendations.

e.In affirming the decision, the Agency argues it would be synonymous to say the Tribunal was ‘approving’ the decision. This is because the Tribunal is standing in the shoes of the CEO as the original decision maker to make a fresh decision about whether the applicant’s statement of participant supports meets all the relevant criteria in the NDIS Act.[12]

f.In varying the decision (in its ordinary meaning as reflected in subitem (1) of Item 129) the Tribunal’s decision would necessarily result in varying the applicant’s statement of participant supports. This variation would occur after the commencement date of the Amending Act.

g.Either way, the amendments introduced by the Amending Act would be engaged.

[12] Frugtniet v ASIC [2019] HCA 16 at [51]

45. I have considered the matter myself and have concluded that even if the effect of any Tribunal decision was considered just to vary the CEO’s decision and would have effect from the date of the original decision (prior to the amendments), this change cannot be practically implemented without an amendment to the statement of participant supports being made by the Agency. As this variation will take place after the commencement of the Amending Act, by Item 129 of Schedule 1 the variation would be subject to the amendments.

46.  Section 6 of the Transitional Rules also provides that if a support is included in a plan by a decision made by the Tribunal prior to the commencement of the Amended Act, it is to be considered to be an NDIS support even if the resulting plan change occurs after the commencement.  I consider this implies that any decision after the commencement must be subject to the amendments.

47. I note also that section 46 of the NDIS Act requires that NDIS amounts received by a participant, or any other person on their behalf may, only be spent on ‘NDIS supports’ and must be spent in accordance with the statement of participant supports. If NDIS amounts are not spent in accordance with this section a debt may be raised pursuant to section 182 of the NDIA Act.

48. This section applies from the commencement of the Amending Act. In practical terms this would mean that a participant could not spend NDIS amounts on anything other than an ‘NDIS support’ (as defined by the Amending Act) even if the Tribunal were to include such an item in a statement of participant supports.

49.  For these reasons I accept that the amendments to the Act and rules apply to this application.

NDIS Supports

50. The term ‘NDIS support’ is a new term introduced by the Amending Act. A support may not be included in a statement of participant supports unless it is an NDIS support.’[13]

[13] Section 34(1)(f) of the NDIS Act

51. Section 10(1) of the NDIS Act provides that a support is an ‘NDIS support’ if it is declared to be so by the NDIS rules. Conversely, section 10(4) provides that the NDIS rules may declare certain items not to be ‘NDIS supports’. As such, the definition of ‘NDIS support’ relies, in part, on the creation of ‘Category A’ NDIS rules which require the agreement of the Commonwealth and all States and Territories (Agreed Rules).[14]  These rules may take some time to be settled.

[14] Supplementary Explanatory Memorandum, National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Bill 2024

52. In the meantime, the Amending Act provides that until the commencement of the first Agreed Rules, the Minister may make transitional rules for the purpose of section 10 of the NDIS Act.[15]  In making these rules, the Minister is obliged, to:

a. have regard to the objects and principles of the NDIS Act;[16]

b.    have regard to the need to ensure the financial sustainability of the Scheme;[17]

c.     ensure the Rules do not directly amend the text of the Act;[18]

d.    be satisfied that declared supports are or are not appropriately funded through the Scheme.[19]

[15] Item 138 of Schedule 1 to the Amending Act

[16] Section 209(3)(a)

[17] Section 209(3)(b)

[18] Section 209(9)(c)

[19] Sections 10(2) and (4) of the NDIS Act.

53. The Transitional Rules have been made and provide that for the purpose of section 10 of the NDIS Act, Schedules 1 and 2 of the Transitional Rules set out those supports which are, and are not, generally ‘NDIS supports’. Item 138 of the Amending Act notes the rules apply provided they do not directly amend the text of an Act. I do not consider they have.

54. This term, ‘NDIS Support’ also appears in the amended section of section 34 in that supports to be funded must be NDIS supports[20]. I have determined the amended form of this section applies.

[20] Section 34(1)(f)

The Agency’s position

55.  It is the Agency’s position that the requested support, Funky Monkey Bars, is not an NDIS support and therefore simply cannot be funded. 

56. Whether supply of the equipment is justified on medical or any other evidentiary basis, is, in their view, immaterial. Rather the proper interpretation of the amendments introduced by the Amending Act is that the Funky Monkey Bars is not a ‘specialist therapeutic piece of equipment, nor a disability specific product’ and as such, is barred from funding under the NDIS by Item 4(p) of Schedule 2 of the Transitional Rules as ‘standard indoor or outdoor play equipment’.

57.  The Agency argues that any object might be used for a therapeutic purpose, but this does not mean that any object ought to be funded by the NDIS. In illustrating this position, the Agency referred to statements from NGVL’s mother that NGVL had gained in core strength by flipping a tyre around at home. Even though the Agency agreed NGVL had thereby addressed a physical impairment, they argued it would be inappropriate for the NDIA to have to fund the purchase of a tyre for this purpose.

58.  In the event that I find against this proposition, the Agency ‘s secondary propositions are that:

a.    The equipment duplicates supports provided under other NDIS funding.  By this they appear to mean:

i.NGVL’s participation in telehealth services with a physiotherapist and an occupational therapist. I am not sure this argument is made out as it is difficult for me to understand how a piece of equipment intended to augment and expand the capacity of NGVL’s telehealth services duplicates these services.

ii.NGVL’s current access to other low-cost pieces of equipment. These pieces of equipment were identified as a balance board and balance ball. It is also not clear to me how this equipment duplicates the functions of a Funky Monkey Bars set.

b.    NGVL is improving anyway so the Funky Monkey Bars are unnecessary. The Agency contended that the applicant’s therapy was not deficient or compromised by his lack of access to the Funky Monkey Bars. To reach this conclusion the Agency relied on a statement by NGVL’s mother that in NGVL’s first face-to-face meeting with his physiotherapist, the physiotherapist expressed surprise at his progress following telehealth physiotherapy sessions. The nature and extent of NGVL’s improvement was not identified but appeared to be limited to his improved core strength;

c.     The provision of Funky Monkey Bars for the purpose of play is the responsibility of NGVL’s parents. The Agency contends it is reasonable to expect parents to fund the purchase of play equipment for their children.  As NGVL’s mother gave evidence that it is likely her other children would also be allowed to use the Funky Monkey equipment at non-therapy times, (minus the risky therapeutic use attachments), the Agency contends the NDIS should not fund the purchase.  It was contended NDIS funds should not be used to purchase items intended to be used for non-disability related purposes and which can be used by others who are not the participant.  While I understand the first part of this proposition, I do not think the second part has relevance to the Act. I can imagine many circumstances in which a support provided for the use of a participant may also be utilised by other household members (eg a ramp or a bathroom modification to a home).  This does not negate its primary purpose as a reasonable and necessary support for the participant.

CONSIDERATION

1. Although the Agency is of the view that consideration of the Transitional Rules will provide a short cut to finalisation of this application, I have decided to consider that issue last.

Is the Funky Monkey Bars a reasonable and necessary support?

1. The starting point is section 33(5). I have considered those matters in s33(5) to which I am to have regard and am of the view the following are most relevant to this matter:

   a.    the participant’s statement of goals and aspirations;

   b.    relevant assessments conducted in relation to the participant;

   c. being satisfied in relation to all the criteria set out in section 34;

   d. having regard to the NDIS Rules made for the purpose of section 35 of the Act.

2. NGVL’s current plan has a start date of 14 March 2024 and lists goals and aspirations identified by his parents.[21] These include:

   a.    To be able to regulate his emotions and use techniques to calm himself down;

   b.    To be able to play or have conversations or respond to others;

   c.     To be able to follow daily routines more independently – sleeping, eating and toileting;

   d.    To be able to manage his sensory system so he can increase academic learning skills, expand his diet and manage sensory overload.

   [21] Pages 3 and 4 of Exhibit 2

3. I have considered the assessments conducted in relation to NGVL as set out below:

   a.    Assessment of Ms Danielle Brockman Mobile Speech Pathology dated 23 February 2022[22]

   [22] Page 61 to 67 of Exhibit 1

   ·     Ms Brockman notes that the remote location of the family’s home has limited NGVL’s access to consistent therapy intervention. She expresses the view the remoteness must be considered when recommending core support items and budgets.

   ·     Testing demonstrated that NGVL had average to low average language skills but below average skills in pragmatic communication. This identified difficulty in accurately interpreting others non-verbal communication and in accurately using his own non-verbal communication skills. NGVL had difficulty initiating conversations, staying on topic, maintaining attention and gaining the attention of others appropriately. He was noted to have difficulty understanding social cues and anticipating social consequences. Ongoing speech therapy was recommended.

   b.    Report of Evie Marchetti, occupational therapist, dated 15 March 2022[23]

   [23] Page 70 to 105

   ·     Ms Marchetti undertook a number of assessments in an extended consultation over several days. This included a Vineland assessment and Pedi-Cat assessment

   ·     NGVL was assessed as having moderately low communication and motor skills and low daily living and socialisation skills.  This led to an overall ranking of low on the composite adaptive behaviour score, meaning his score was greater than or equal to 1% of individuals in his age group.

   ·     NGVL was assessed as performing well below age expectations in all verbal and receptive communication but higher in written communication.

   ·     His independent living capacity was well below expected for his age. He requires prompting and assistance with personal care, declines to use a knife when eating and has very limited personal safety awareness. In a metropolitan area Ms Marchetti would recommend a support worker to assist in developing these skills. This is not possible in NGVL’s remote location.

   ·     NGVL has very poor social skills for his age group, still preferring solitary play, and very poor emotional regulation skills. When upset or frustrated he tends to ‘meltdown’, physically lashing out, throwing things, punching and screaming.

   ·     In therapy sessions NGVL was noted to respond well to regular opportunities to obtain proprioceptive, vestibular and deep pressure input. This assisted in regulation of emotions.  Ms Marchetti was of the view it was necessary for him to be provided with tools, equipment and therapies to improve his capacity to an age-appropriate standard. Proprioceptive, vestibular and deep pressure inputs were seen to be effective.

   ·     NGVL’s gross motor skills were assessed as well below what is age expected. Ms Marchetti noted that his remote location hindered his access to activities that could assist. He had been working with his physiotherapist to develop core strength but the lack of therapy resources and equipment on the station made it difficult to progress. Ongoing access to these and to physiotherapy was recommended.

   ·     Ms Marchetti reiterated that allowance for additional assistive technology and equipment is necessary due to the family’s isolation on their property. Without equipment it was likely NGVL would not progress as he would in the city. She recommended, among other things, provision of Funky Monkey bars.

   c.     Report of Sneha Rajagopalan, physiotherapist, dated 15 July 2022[24]

   [24] Page 219 to 224 of Exhibit 1

   ·     Ms Rajagopalan conducted an in-person assessment of NGVL. She observed his mobility pattern was impaired with no arm swing and awkward gait when running, he had reduced hip and knee flexion resulting in reduced ground clearance and tripping, reduced trunk rotation limiting step length and difficulty in navigating objects in the environment.

   ·     NGVL was unable to rise from the floor without exaggerated leaning and leg movement which would not generally be expected in a child of his age.

   ·     NGVL was unable to skip leading with his left leg and did not use arm swing in this task.

   ·     NGVL had significant difficulty with balance (which was considered likely to impact his ability to complete personal care tasks) and an unusual jumping pattern using a frog-like technique rather than bending from the hips.

   ·     Ms Rajagopalan indicated that in her next report she was likely to recommend the provision of Funky Monkey (Orangutan Plus) equipment to allow completion of physio activities and program at home.

   d.    Physiotherapy letter of recommendation by Sneha Rajagopalan, physiotherapist, undated, following a play-based assessment on 28 July 2022.[25]

   [25] Page 367 to 369 of Exhibit 1

   ·     Ms Rajagopalan provided a written recommendation in relation to the Funky Monkey for The Gorilla Plus model (cost $4,065 plus shipping $500) She requested this include the following attachments:

   ØMonkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapezius.

   ·     It was noted these features would provide the necessary options for a physiotherapy program that challenges NGVL’s core stability required for his goal of bike riding and kneeling to put shoes and socks on.

   ·     Having a climbing net was recommended so NGVL could build the functional strength in his lower limb muscles to be able to climb onto high platforms in the community, such as buses, leisure centre pools, ladders and playgrounds;

   ·     The addition of the flying fox and jungle rope served to challenge NGVL’s balance response to internal perturbations (sudden exposure to conditions that displace the body away from equilibrium). When this skill is learnt, NGVL will be able to navigate dribbling a ball with his feet which is the start of building his capacity to attend to dual tasks such as walking and navigating objects in his environment.  This was likely to reduce falls risks.

   ·     Ms Rajagopalan suggested that without this equipment NGVL’s gross motor delays would continue to impact all parts of his life and health such that he may require more complex supports in the future.

   e.    Continence assessment of Clare Taylor, nurse consultant, dated 5 July 2022[26]

   [26] Page 225 to 232 of Exhibit 1

   ·     Ms Taylor noted that generally NGVL was reasonably independent with his bladder and bowel management with presenting issues being consistent overnight wetting and daytime urinary urgency.

   ·     Currently using pull ups each night and sometimes through the day – on average 3 a day.

   ·     A proposed treatment plan was advised.

   f.   Equipment and Resource recommendation by Emily Burns, occupational therapist, dated 22 August 2022[27]

   [27] Page 233 to 235 of Exhibit 1

   ·     Ms Burns made a list of strategies and activities that assisted NGVL to regulate his emotions. Included in this list was proprioceptive sensory input such as climbing or rhythmical movements such as gentle swinging.

   ·     Ms Burns noted that having flexible funding to purchase equipment to complement telehealth therapies would be beneficial. Pieces of equipment such as a monkey bar/swing set would provide opportunities for gross motor skill development but also to use as a regulation strategy via rhythmical movements and proprioceptive sensory input activities.

   ·     Where NGVL’s goals included developing strategies to help him improve his ability to self-regulate this was seen as beneficial.

   g.    Physiotherapy report by Melissa Hersey dated 23 January 2023[28]

   [28] Page 236 to 242 of Exhibit 1

   ·     Ms Hersey noted that NGVL had poor co-ordination and gait with no idea of sense of his body in space.

   ·     She noted she undertook a very play-based assessment to avoid distress and frustration on NGVL’s part. She noted he had extreme difficulty in following instructions, becoming easily frustrated, manifesting in him hitting objects and himself, crying and running away. He fatigued easily.

   ·     NGVL was observed to have mild bow legs, right side bias and a mild flexor tone when fatigued. He had moderate dystonia (on the upper end for ASD children) and very poor trunk and core tone. She also observed a mild degree of hypermobility in trunk and low limbs and hypermobility in his shoulders, elbows, wrists and hands.

   ·     Reflexes were greater than expected, including the maintenance of primitive motor reflexes.

   ·     NGVL had reduced global strength, noticeable particularly in his core and lower limbs and poor static and dynamic balance.

   ·     NGVL’s proprioception was noted to be particularly poor. He was noted to be unable to identify where his limbs are in relation to his environment and could not correct this even with verbal cues. Actual physical feedback was required to allow him to make changes.

   ·     Co-ordination between upper and lower limbs was poor.

   ·     These issues translated to:

   Ø  difficulty sitting for any length of time due to poor tone, making it hard to complete tasks at home and school;

   Ø  high levels of fatigue in ordinary tasks due to effort in learning motor planning pathways and stabilising his body; and

   Ø  poor awareness, balance and co-ordination causing increased accidents and falls. He is a higher risk of injury to his peers.

   ·     Ms Hersey recommended a play-based home exercise program focussing on improving NGVL’s strength, balance and motor planning. Ideally this would be three times a week with review and progression with the physiotherapist once weekly.

   ·     Ms Hersey specifically identified the Funky Monkey Bars as required equipment to complete NGVL’s strengthening program. His emotional dysregulation combined with physical frustration outbursts meant that a standard swing set was not strong enough for his needs.  She noted ‘the Funky Monkey is stable and allows easy and effective prescription of an exercise program that can be progressed for many years for him.’  Ms Hersey noted that NGVL ‘risks damage to equipment, himself or others in attempting to complete therapy exercises on unsuitable ‘playground equipment’. It was noted he needed specialised therapy aide equipment and that ‘whilst other neurotypical children can of course use the Funky Monkeys, they are specifically designed for robust therapy use’.

h.    Functional Capacity Assessment of Emily Burns, occupational therapist, dated 7 March 2023.[29]

[29] Page 243 to 277 of Exhibit 1

·     A summary of the comprehensive assessment conducted includes that NGVL has significant challenges in visual and auditory processing, significant difficulty with touch sensory input and body awareness proprioception, significant challenges with balance and motion skills (vestibular function), significant difficulty with social participation and moderate difficulty with motor planning.

·     On the Vineland Assessment NGVL continued to have a low composite adaptive behaviour score indicating the need for considerable support across all areas of daily living.  Ms Burns noted there had been some increase in scores since the assessment undertaken in 2022.

·     Ms Burns made a number of recommendations for therapies and equipment to assist NGVL at this early stage to improve his later outcomes. This included a recommendation for supply of monkey bars.

i.   Physiotherapy progress report and recommendations by Melissa Hersey dated 7 March 2023[30]

[30] Page 278 to 281 of Exhibit 1

·     Ms Hersey noted that NGVL had been engaging in telehealth therapies but his gross motor skills remained well below age appropriate levels, greatly impacting his ability to complete functional tasks.

·     Ms Hersey was of the view his poor emotional regulation and behaviours were impacting most on his and his family’s life. Further assessments were undertaken demonstrating that NGVL sits in the extreme lower age range for ability to complete daily activities and responsibilities, his social and cognitive ability sat in the 13^th percentile and mobility in the 37^th percentile.

·     In Ms Hersey’s view this assessment confirmed the importance of early intervention as NGVL was otherwise at risk of his disability overwhelming his chances of participating meaningfully within the community.

·     She maintained her recommendations made in her initial assessment, including the Funky Monkey Bars.

j.   Report of Grace Andretta, occupational therapist, dated 11 January 2024[31]

[31] Page 282 to 308 of Exhibit 1

·     Ms Andretta noted that as a result of his autism and ADHD NGVL is naturally geared into a high state of arousal which is hard for him to regulate.

·     In occupational therapy work with him it has been evident that the use of heavy work/proprioceptive input has been helpful for NGVL’s regulation. It is recommended he have easy access to equipment he can use multiple times daily to assist with this. 

·     The Funky Monkey Bars was considered likely to provide the opportunity for NGVL to obtain the proprioceptive input his body needs to work towards his goals of greater regulation and independence.

k.     Report of Grace Andretta, occupational therapist, dated 28 March 2024[32]

[32]

·     Ms Andretta conducted a further Vineland assessment and carer burden assessment. Carer burden assessment had increased for NGVL’s mother moving higher in the ‘severely burdened’ range.

·     Adaptive Behaviour Composite score across all assessed domains had increased from 71 in the year previously, to 72.

·     Recommendations were made in relation to occupational therapy inputs and ongoing other therapies.

l.   Report of Melissa Hersey, physiotherapist, dated 29 June 2024[33]

[33] Page 309 to 311 of Exhibit 1

·     Ms Hersey wrote in relation to a recent report by an occupational therapist commissioned by the Agency which recommended a Funky Monkey set be assembled and used in a workshed near the family home on the station on which they live.

·     Ms Hersey expressed the view this was a very unsafe recommendation given the shed was a high-risk worksite containing large equipment, chemicals and working station staff.  Ms Hersey instead recommended installation on a lawned area close to the house.

·     Ms Hersey noted that although NGVL had made some progress with his motor skills, he required exercise equipment to be able to complete his physiotherapy program. Ms Hersey noted that NGVL’s remote location where he has no access to community gyms and playgrounds put him at a significant disadvantage to someone in a town or the city.  Ms Hersey stated the Funky Monkey set-up is not a ‘general play’ item that would be expected as part of any family life, but rather a specialised physical therapy tool to allow NGVL to complete his therapy programs successfully.  This equipment is noted to have a long warranty and long-term applicability for NGVL.

·     In Ms Hersey’s view it is more cost-effective for the Agency to fund purchase of this equipment and allow a home-based exercise program than to have to fund more regular physiotherapy sessions.

m.   Report of Robyn Earl, positive behaviour specialist dated 12 August 2024[34]

[34] Page 312 to 318 of Exhibit 1

·     Ms Earl writes to recommend a number of pieces of equipment, including the Funky Monkey Bars. These are seen as appropriate sensory equipment that may assist NGVL in achieving his goal of better self-regulation.

·     Ms Earl notes that whereas the Agency commissioned occupational therapist considered the Funky Monkey Bars should be provided so a therapist-led Ayres Sensory Integration program could be followed, Ms Earl favoured the use of the Funky Monkey Bars in a self-help, child-led approach.  This was particularly relevant given the remoteness of NGVL’s home and lack of access to regular on-site therapy.

·     In the self-help approach, the equipment was to be made available for the child in their home to use when needed in times of distress or sensory overload. The aim was to assist in self-regulation by movement and to allow the child to return to task when calm.

·     Ms Earl notes that NGVL has been recognised as having increased sensory seeking behaviours but that his responses to sensory input are not always consistent. Ms Earl was a supporter of the swings and flying fox to provide vestibular input and the monkey bars to offer proprioceptive input.  She thought this could be balanced by the Cubbi Buddi and KloudSac equipment which was initially requested but is no longer sought by NGVL’s mother.

·     Ms Earl reported that having immediate access to sensory tools providing vestibular and proprioceptive input, such as the Funky Monkey Bars, had been reported to play a critical role in regulating the nervous system. As NGVL’s emotional dysregulation had had a significant impact on his function and progress, this was seen as an important issue to address.

n.    Letter from Tania Passingham, support co-ordinator undated.[35]

[35] Pages 345 to 353 of Exhibit 1

·      Ms Passingham writes that the benefits to NGVL of the Funky Monkey being available to him include: improved spatial awareness, improved gross motor and fine motor coordination, improved planning and strategy, encourages independent play, building core strength, turn taking, emotional regulation, sensory input, balance, hand-eye coordination

·      ‘Funky Monkey Bars will assist in the delivery of Occupational Therapy and Physiotherapy programs and will also work towards the NDIS goal: ‘[Dad] and [Mum] would like NGVL to play or have conversations with others’’.

·   Other NDIS goals being met with Funky Monkey bars include:

NGVL’s NDIS medium or long-term goal of: [Dad] and [Mum] would like NGVL to manage his sensory system so he can increase academic learning skills, expand his diet and manage sensory overload.

NDIS short term goal of: [Mum] and [Dad] would like NGVL to be able to regulate his emotions and use techniques to calm himself down.

o.    Report of Rebecca Thompson, occupational therapist, dated 9 November 2023.[36]

[36] Page 554 to 591 of Exhibit 1

·     Ms Thompson’s report was commissioned by the Agency.  Ms Thompson undertook an in-person assessment at NGVL’s home on the station. She was accompanied by another occupational therapist, Sarah MCGarry.

·     Although Ms Thomson recorded NGVL’s diagnosis of autism spectrum disorder she recorded it in error as level 1, not 2, as recorded in all other reports.

·     Ms Thompson administered the Vineland-3 standardised tests and established measures of difficulty in line with earlier testing.

·     Ms Thompson undertook a Sensory Profile 2 assessment and established that NGVL was much more interested in and overwhelmed by sensory experiences than others.  He was assessed as detecting more sensory cues than others and missing more sensory cues than others. His sensory processing abilities were assessed to be functioning at a level that was significantly different to the majority of children his age.

·     Similarly, NGVL had heightened responses to sound, sights, touch, movement, body position, and oral sensory stimulation. He exhibited conduct associated with sensory processing and social emotional responses more than others.

·     In summary, Ms Thompson found NGVL demonstrated significant limitations in sensory processing, social communication, gross motor skills, low tone and emotional regulation. The limitations he experienced affect all areas of participation in daily life.

·     Ms Thompson was of the view NGVL was further disadvantaged by his residence on a cattle station, a minimum of 2 hours’ drive from the nearest regional centre, Carnarvon. As a result, he is reliant on telehealth therapy and had no access to community facilities such as playgrounds or public swimming pools.

·     In addressing the question of funding for the Funky Monkey Bars, Ms Thompson strongly recommended this be supplied to NGVL.  She reiterated NGVL had no access to alternative community options and gave as her opinion that lower-cost alternatives available could not provide similar therapeutic outcomes as the Funky Monkey.  Not only were these alternatives not as robust in supporting the therapeutic strategies a physiotherapist would provide, but they would also not be able to provide all the dynamic pieces of equipment necessary. The recommended equipment included monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapezius.

·     Ms Thompson stated all these add-on pieces of equipment were necessary to achieve core stability given NGVL’s low tone and limited core strength and to assist with balance.

·     An example given to support the use of the various attachments was of working on NGVL’s vestibular system by spinning him around on a swing or swaying his body whilst hanging upside down from the trapeze bar. From Ms Thompson’s point of view this activity would lead to improvements in NGVL’s balance and assist NGVL in dual tasking activities, such as walking and dribbling a ball with his feet.

·     Ms Thompson gave it as her very clear opinion that the Funky Monkey Bars were prescribed as therapeutic equipment and not simply play equipment. It was her opinion the equipment should be used to conduct therapy during his weekly physiotherapy and occupational therapy sessions and in the home program that will be developed. He should not use the therapy equipment unsupervised. Unlike other children living in remote communities, NGVL required access to additional therapeutic equipment as a result of his low tone associated with his autism diagnosis.

·     Ms Thompson agreed that the use of the Funky Monkey Bars in conjunction with an occupational therapy program could assist in NGVL’s sensory integration and in addressing his emotional dysregulation.  She confirmed there was sufficient trial evidence to support a view use of Funky Monkey Bars could assist with sensory regulation

·     Ms Thompson was very clear that lower-cost items would not be able to be adapted to suit the needs of NGVL. One of the benefits of the Funky Monkey Bars was the ability to add therapeutic equipment items such as monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapezius to suit the child’s impairment. The items could be removed easily and safely so they could not be used unsupervised.  It was her evidence that lower cost items do not have this option for most of the equipment pieces.

·     Ms Thompson did not consider NGVL’s capacity building funding would be reduced if the Funky Monkey Bars were funded, as the purpose of the purchase would be to allow expansion of NGVL’s physiotherapy and occupational therapy treatment, not their replacement. 

1. Per section 33(5)(c), I must now consider whether I am satisfied in relation to all the mandatory factors in section 34(1) of the NDIS Act in relation to whether the support is reasonable and necessary and should be funded.

2. In the matter of National Disability Insurance Agency v WRMF[37] (WRMF) the Full Court discussed the following.  I consider the statements provide useful guidance to the Tribunal in the approach to take in determining what might be ‘reasonable and necessary’ supports:

   a.    Supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community and to do so on the basis of the values set out in the objects and guiding principles of the Act;[38]

   b.     Whether, in a given case, the requested support is a ‘reasonable and necessary support’ will…generally be a question of fact on the evidence before the decision-maker.  Subject to matters such as rationality and legal unreasonableness, there may be an area of decisional freedom in the conclusion reached by a decision maker about whether a support is properly characterised as a ‘reasonable and necessary’ support. The phrase has a qualitative aspect;[39]

   c.     The phrase ‘reasonable and necessary’ ‘is a composite phrase in which each limb should be given work to do.  While both words have work to do to qualify the word ‘support’ they do so as a composite phrase and it is not fruitful to split them off and consider them separately;[40]

   d.     Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, 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;[41]

   e.     The 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;[42]

   f.   The task of determining the contents of a participant’s plan and what are the reasonable and necessary supports is a fact-intensive exercise.[43] The circumstances of each participant will vary greatly… and the exercise will be highly individualised. There will be an area of ‘decisional freedom’ for the decision-maker, about what supports fall within this description, given the circumstances of the particular individual. Provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising that power under section 33(2) to differ;[44]

   g. The matters set out in section 34(1) (of the Act) are more than mandatory considerations, because in terms section 34 requires that a decision maker be positively satisfied about each matter. They are more in the nature of criteria of which the decision-maker must be satisfied on the material. That satisfaction must be reasonably and rationally formed, not taking into account irrelevant considerations, and taking into account any relevant considerations, but otherwise it is for the decision-maker to form the requisite state of satisfaction on the given material;[45]

   h.     …participant plans are not complex documents, but they may specify a large number and wide range of supports. The inquiry required of the decision-maker is therefore a targeted one, but it is not necessarily a complex one. The criteria are straightforward and pragmatic. The decision-maker’s approach is entitled to be of the same kind.[46]

   [37] [2020] FCAFC 79

   [38] WRMF at [141]

   [39] WRMF at [143]

   [40] WRMF at [149] – [150]

   [41] WRMF [151]

   [42] WRMF [151]

   [43] WRMF at [152]; McGarrigle v National Disability Insurance Agency [2017] FCA 308

   [44] WRMF at [152]; National Disability Insurance Scheme v KKTB by her litigation representative CVY22 [2022] FCAFC 81 at [26]

   [45] WRMF at [201]

   [46] WRMF at [202]

3. With these principles in mind, I will consider the section 34 criteria.

4. Section 34 (as amended) reads 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);

   (a)The support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;

   (b)The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;

   (c)The support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

   (d)The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

   (e)The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

   (f)The support is an NDIS support for the participant.

   Note: For the purposes of paragraph (aa):

   (b)The time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

   (c)A participant’s disability support needs arising from an impairment in relation to which the participant meets the access requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

   (2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of the paragraphs (1)(aa) to (f).

Section 34(1)(aa)

1. Section 34(1)(aa) requires that I be satisfied that the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability or early intervention requirements (sections 24 and 25 of the NDIS Act respectively). The Note to the section advises that the time these requirements must be met is the time at which the supports will be approved.

2. I consider that NGVL has physical, neurological and sensory impairments attributable to his conditions of ADHD and autism spectrum disorder.  These are permanent conditions which significantly reduce his functional capacity for each of the relevant activities in section 24.

3. I have considered the article provided in the joint tender bundle, Is Earlier Better? The Relationship between Age When Starting Early Intervention and Outcomes for Children with Austim Spectrum Disorder: A Selective Review[47] and am satisfied the evidence establishes early intervention for children with an autism diagnosis has benefits for mitigating or alleviating some of the effects of the condition on their functional capacity.

   [47] Autism Research and Treatment, Vol 2020 at page 319 of Exhibit 1

4. I am satisfied that on either basis (disability or early intervention) NGVL meets the access requirements due to impairments attributable to his conditions. The nature of the impairments has not altered since he was granted access.

5. The evidence from the various treating practitioners and from the Agency’s commissioned occupational therapist all support a finding that the Funky Monkey Bars are necessary to address NGVL’s needs arising from his autism related impairments.   These include the need to develop core strength and improve muscle tone, improve balance, gain better sense of self in space (proprioception), manage and improve sensory integration and improve emotional regulation.

6. I find the requirement in section 34(1)(aa) is met.

Will the support assist the participant to pursue the goals objectives and aspirations included in his plan? – Section 34(1)(a)

1. NGVL’s goals include to regulate his emotions and use techniques to calm himself, to be able to play or have conversations or respond to others, to follow daily routines more independently (eating, sleeping, toileting), and to manage his sensory system so he can increase academic learning skills, expand his diet and manage sensory overload.

2. According to Ms Rajagopalan, physiotherapist, having better core strength, tone and balance will assist NGVL in being physically able to manage his daily tasks without assistance. According to Ms Earl, behaviour practitioner, being able to use the Funky Monkey for proprioceptive input will assist in managing sensory overwhelm and emotional dysregulation. Ms Thompson states the use of the Funky Monkey to increase NGVL’s emotional regulation will lead to less distractibility in the classroom and greater capacity to manage household duties that he does not like.

3. I consider the evidence supports a finding that therapeutic use of the Funky Monkey equipment according to physiotherapy and occupational therapy prescriptive activities will assist NGVL to move towards achievement of his goals. I am satisfied the criterion in section 34(1)(a) is met.

The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation – section 34(1)(b)

1. I am satisfied on the basis of the evidence of the treating practitioners and Ms Thompson that the support, in conjunction with prescribed exercise programs and treatment from physiotherapy, occupational therapy and a behavioural practitioner will assist NGVL to develop better strength, sense of self, function and emotional regulation. This will better equip him for social and economic life.

1. I find the criterion in section 34(1)(b) is met.

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 – section 34(1)(c)

1. Ms Rajagopalan originally suggested the Orangutan Plus frame would be her recommendation, but subsequently identified the Gorilla Plus frame with specific attachments including monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapezius.  She identified the cost of this set with required attachments as $4,065 including shipping of $500.

2. NGVL’s mother provided a quote for the Orangutan Plus frame (a smaller frame) with all the recommended attachments. This was in the amount of $3,402.35 including freight.  As the supply of the equipment is intended for the sole use of NGVL in relation to his therapy I do not consider that the larger Gorilla Plus frame, allowing for use of several accessory options at once, is necessary.

1. Ms Thompson, in her report for the Agency, advised that in her view low-cost alternatives would not provide similar therapeutic outcomes as they were not robust enough and did not provide all the necessary, dynamic pieces of add-on equipment.

2. In her oral evidence to the Tribunal Ms Thompson maintained this view but agreed with the Agency that she had not researched any options more recently.

3. The Agency did not present any evidence which might establish the existence of lower cost alternative equipment capable of achieving the same therapeutic outcomes for NGVL. 

4. However, they relied on an earlier decision of the Tribunal, WWWX and the National Disability Insurance Agency (WWWX) in which the member found there was no evidence that lower cost play equipment would provide an inferior therapeutic function to the Funky Monkey for that particular participant.[48]

   [48] [2024] ARTA 285 at [348]

5. The member in that matter had the benefit of evidence presented to them from Dr P1 in relation to the impact of play gym equipment on that participant (a preschool child).  This Tribunal did not. 

6. To the contrary, this Tribunal had direct evidence from Ms Thompson, both written and oral, to support a finding the Funky Monkey Bars was a superior, safer and more appropriate piece of equipment, with more therapeutically versatile attachments than any other she was aware of. 

7. In her oral evidence Ms Thompson stated that a primary reason for her recommendation of the Funky Monkey Bars is the remoteness of the property on which NGVL lived and his lack of any other access to facilities. She stated that to achieve the same therapeutic options without the Funky Monkey Bars, you would need to purchase a lot of different small pieces of equipment which would be a lot harder for therapists to regulate and monitor from such a distance. She noted the Funky Monkey Bars were adjustable to cater for NGVL as he grew.

8. If the family lived closer to town, there would be an option for more frequent hands-on therapy in which NGVL could be shown and taught certain activities and then allowed to go home with equipment to practice at home.  Where hands-on appointments are months in between, however, it is not possible or safe to manage therapy this way.  More frequent therapy sessions with smaller pieces of equipment would, of course, result in higher therapy costs.[49]

   [49] Oral evidence of Ms Thompson

9. I also consider the circumstances of WWWX were significantly different to those of NGVL. The child in WWWX was a nearly three-year-old child, living in a metropolitan area with access to a range of other activities and facilities such as support workers, face-to-face therapy, day care, swimming classes, and regular group therapy activities. 

10. According to the principles enunciated in WRMF the particular circumstances of the participant are relevant considerations in determining what are reasonable and necessary supports for that individual.[50]

    [50] WRMF at [141] and [26]; see also National Disability Insurance Agency v KKTB by her litigation representative CVY22 [2022] FCAFC 181 at [26]

11. I have given consideration to the particular circumstance of this participant, including:

    a.    his reduced muscular strength in his core and lower limbs impacting his daily functional capacity;

    b.    his poor balance, sense of his body in space and co-ordination;

    c.     his increased falls risk;

    d.    his (at times) regular and violent emotional dysregulation;

    e.    his difficulties in sitting and participating in focussed school tasks;

    f.   his lack of access to support workers or regular face-to-face therapy or activities;

    g.    his young age and the need for equipment to grow with him;

    h.    his lack of access to any community facilities and his dependence on telehealth services.

12. I have considered the extensive evidence from both the treating practitioners and the Agency commissioned expert, Ms Thompson, which support a finding the impairments noted above will be assisted by NGVL having regular access to the activities possible on a Funky Monkey Bar arrangement. This is in conjunction with a robust physiotherapy, occupational therapy and behaviour management program.

1. I have considered the evidence of Ms Thompson that the equipment is adjustable to cater for NGVL’s growth as he ages.

2. I have considered Ms Thompson’s opinion about the need for multiple pieces of equipment and possibly more therapy appointments if the Funky Monkey Bars are not provided for NGVL.

3. I have considered that there is no evidence before me to establish that there are, in fact, alternative, lower cost products that could address NGVL’s needs.

4. On balance I am satisfied and find that provision of the Funky Monkey Bars does constitute value for money in that the costs of the support are reasonable relative to the benefits to be achieved for this participant. 

5. I find the criterion in section 34(1)(c) is met.

6. Is the support likely to be effective and beneficial for the participant having regard to current good practice – section 34(1)(d)

7. On the basis of all the allied health opinions set out above, I am satisfied that the Funky Monkey Bars are likely to be effective and beneficial in assisting NGVL to develop core strength, improve balance and tone, address sensory integration and assist with emotional regulation. 

8. Ms Thompson particularly considers it is ‘evidence best practice’ to establish a ‘prescribed program of physiotherapy using the therapeutic pieces of equipment such as monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapeze to achieve the outcome to strengthen NGVL’s core stability’.[51]

   [51] Page 574 of Exhibit 1

100.  Better physical capabilities are likely to result in better overall function and assist NGVL to work towards his goals of better independence.

101.  If NGVL resided in a metropolitan area, it is likely he could have access to just such equipment in attendance at his face-to-face therapy sessions and not require the equipment at home.

102.  I find this criterion is met.

Is the funding of the support reasonable taking account of what it is reasonable for families, carers, informal networks and the community to provide – section 34(1)(e)

103.  In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, Rule 3.4 of the Transitional Rules requires that, for a participant who is a child, the Tribunal consider:

(i)That it is normal for parents to provide substantial care and support for children; and

(ii)Whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and

(iii)The extent of any risks to the well-being of the participant’s family members or carer or carers; and

(iv)Whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing.

104.  With his diagnoses of Autism (level 2) and ADHD, NGVL is clearly a child who’s care needs are substantially greater than those of other children of a similar age. Assessments have established that NGVL has lower muscular strength, balance, co-ordination and practical abilities than other children of his age.  His ability to undertake personal care activities without assistance of his family and to sit for any length of time is diminished compared to similar aged children.  He has poorer ability to manage his own emotions and frustrations, resulting in extreme episodes of dysregulation which are distressing to all and occasionally harmful to himself and others. His dysregulation interferes with his progress in other areas.[52]

[52] Page 533 of Exhibit 1

105.  The evidence of all the allied health practitioners who have provided opinions to the Tribunal is that the provision of the Funky Monkey Bars will improve NGVL’s capacity and future capacity and will reduce risks to his well-being.

106.  The Agency maintains the Funky Monkey Bars is simply a piece of play equipment, and as such its purchase is properly the responsibility of the family.[53]

[53] Agency Statement of Facts, Issues and Contentions at [7]

107.  Ms Thompson in her evidence states clearly that the Funky Monkey Bars is a piece of therapeutic equipment to be used as part of a supervised therapy plan. Using best practice evidence, she recommended that a prescribed therapeutic program utilising this therapeutic piece of equipment be implemented for NGVL’s benefit. She agreed that the specific additions recommended by Ms Gajagopalan were appropriate and necessary.[54]

[54] Page 574 of Exhibit 1

108.  Ms Hersey noted that a standard swing set is not strong enough for NGVL and that he needed a specialised therapy aide such as a Funky Monkey Bar.  She noted that whilst other neurotypical children can of course use the Funky Monkeys, these are specifically designed for robust therapy.

109.  In oral evidence Ms Thompson did not consider the fact that NGVL’s siblings may utilise the Funky Monkey Bars detracted at all from its appropriateness or identity as a therapeutic tool.  She noted the potentially dangerous attachments could be easily removed to avoid risk.

110.  Given this evidence and considering the cost of the Funky Monkey Bars relative to the cost of everyday swing sets a family might ordinarily buy, I consider the funding of this support is reasonable taking into account what it is reasonable to expect families, communities and informal networks to provide.

111.  I find this criterion is met.

Is the support an NDIS support for the participant – section 34(1)(f)

112. Consideration of this criterion intersects with the section 33(5) obligation to apply the rules made for the purpose of section 35 and raises the following question:

Is funding of the Funky Monkey Bars barred by the Transitional Rules?

113.  Based on the Agency’s submissions, consideration of whether the requested support could be included as a reasonable and necessary support is easily determined by reference to the Transitional Rules.[55]

[55] Agency Statement of Facts, Issues and Contentions at [6]

114. Section 4(1) of the Transitional Rules provides that supports declared by the Minister to be NDIS supports (per section 10(1) of the NDIS Act) are found in Schedule 1 of the Transitional Rules.

115. Items declared to not be NDIS supports (pursuant to 10(4) of the NDIS Act) are found in Schedule 2 of the Transitional Rules.[56]

[56] Section 4(2) of the Transitional Rules

116.  The Agency relies on Item 4(p) of Schedule 2 which specifically declares ‘standard indoor or outdoor play equipment’ is generally not an NDIS support.

117. While a support which is not generally an NDIS support (as declared in Schedule 2 of the Transitional Rules) will be barred from funding, section 10(4) of the NDIS Act provides that an application may be made to the CEO for a determination a non-support may be considered a support in certain circumstances. I agree with the conclusion of General Member Dodd in WWWX, however, that the Tribunal does not have jurisdiction to make a determination as part of an ordinary hearing where application has not first been made to the CEO.[57]

[57] WWWX at [352]

118. ‘Standard item’ is defined in section 4(1) of the Transitional Rules as meaning ‘an item that is not modified or adapted to address the functional impairments of the participant or prospective participant’.

119.  There is a degree of nuance in this definition which requires exploration.

120.  It is the Agency’s position that Funky Monkey Bars are a standard piece of outdoor play equipment, not a specialist therapeutic piece of equipment or disability specific product.[58]

[58] Paragraph 7 of Closing Submissions

121.  The Agency notes the supplier’s public website makes references to the equipment being an ‘award-winning, modular, free-standing, height-adjustable monkey bars and swing set for your backyard’.  The website is said to make ‘no mention of its product being designed as specialised therapy tools, or specifically for use by children with disabilities.’ It is marketed to families, schools, venues and parks.

122.  However, the Agency also notes the supplier’s website markets to occupational therapists, noting their products ‘provide [a] dynamic, versatile tool for therapeutic interventions so your clients can flourish in a secure, stimulating environment’. This suggests that the Funky Monkey Bars could indeed be considered a therapeutic aid in certain circumstances according to their usage.

123.  As the therapeutic market would be limited, it would not be unusual for a commercial manufacturer to also market their product to the widest possible residential and commercial markets as well.  It does not appear, however, that such a wider application would change the nature of the offerings available to the therapeutic market.

124.  I have considered the Funky Monkey website to which I have been directed by the Agency.  This advertises that Funky Monkey offer their product in 20 different frame options with over 50 add-on accessories which may be customised to particular needs.

125.  The website advises the Orangutan Plus frame is usually supplied with a flying fox, three metre monkey bar, a sling swing and a trapeze.

126.  The Gorilla Plus frame is usually supplied with three metre monkey bar, a flying fox, and a nest swing.  The Gorilla Plus frame is wider than the Orangutan Plus to allow for the inclusion of the nest swing.

127.  I have considered the recommendation made by Ms Sneha Rajagopalan, physiotherapist in her undated report following her assessment of NGVL’s capacity.[59]  Ms Rajagopalan recommended supply of a Funky Monkey (Gorilla Plus) with specific attachments including monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapezius.

[59] At pages 367 to 369 of Exhibit 1

128.  This is a very particular configuation of the Funky Monkey equipment, chosen from myriad other options and certainly different from the base offering by the Funky Monkey company. It is reasonable to believe Ms Rajagopalan considered this particular configuration was most suitable to NGVL’s particular needs arising from his impairments.

129.  I have considered the report of Ms Rebecca Thompson, occupational therapist, dated 9 November 2023.  In expressing the view that lower cost alternatives would not provide similar therapeutic outcomes for NGVL, Ms Thompson noted these lower cost alternatives could not provide the same options on one piece of equipment. She identified the relevant options as including monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapezius. She considered that bearing in mind NGVL’s particular difficulties, all these attachments were necessary to address his impairments and prescription of an exercise program involving all these attachments reflected best practice.[60]

[60] At page 573 – 578 of Exhibit 1

130.  I have considered the recommendation of Ms Melissa Hersey, physiotherapist. In her report dated 24 January 2023 Ms Hersey specifically recommended the Funky Monkey Bars as the safest option for NGVL due to his dysregulation episodes, opining that ‘standard swing sets’ were not strong enough for safety.  She expressed the view that the Funky Monkey Bars were specifically designed for robust therapy use.[61]

[61] Page 534 of Exhibit 1

131. In light of the above, I have formed the view that the particular Funky Monkey Bars recommended do not constitute ‘standard outdoor play equipment’. I have reached this conclusion as I find the configuration specifically recommended by these treating practitioners has been modified and adapted (from the standard model) specifically to address the particular functional impairments of NGVL. In my view this takes the set-up outside the definition of ‘standard’ in section 4 of the Transitional Rules.

132.  As such I find that the Funky Monkey Bars recommended for NGVL’s use do not fit within the exclusion in Item 4(p) of the Transitional Rules.

133. Considering Schedule 1 of the Transitional Rules, I consider the Funky Monkey Bars best fit under Item 17, early intervention supports, or alternatively, Item 34 therapeutic supports. In reaching this conclusion I note that the categories in Schedule 1 appear to be weighted towards types of support suitable for adults. There are few categories in this Schedule which appear to be directed towards early intervention or supports for children.

134.  I rely on the evidence of Ms Rajagopalan, Ms Thompson and Ms Hersey in reaching the conclusion this equipment is a necessary support to progress the early intervention program for NGVL (Item 17) and to allow for the provision of evidence-based therapy to help NGVL improve his functional capacity, mobility and movement (Item 34).

135. I find the support is an NDIS support for the participant and that the criterion in section 34(1)(f) is met.

Is the support most appropriately funded through the NDIS? – Rule 7(3) of the Miscellaneous Rules

136.  Rule 7(3) of the Miscellaneous Rules requires that I be satisfied the support is most appropriately funded or provided through the Scheme and is not more appropriately funded or provided through other general systems of service delivery or support services offered:

a.    as part of a universal service obligation; or

b.    in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

137.  Rules 7.8 to 7.10 in the Transitional Rules sets out the early childhood development supports the Scheme will and will not cover as follows:

7.8 The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.

7.9 The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:

(a) specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and

(b) likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.

7.10       The NDIS will not be responsible for:

(a)  meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings; or

(b)  supports which are clinical in nature provided in the health system, including acute, ambulatory or continuing care; or

(c)   new-born follow-up provided in the health system, including child and maternal health services.

138.  The funding of a Funky Monkey piece of equipment is a personalised support, specific to NGVL’s disability and additional to the needs of children of a similar age.  It is specifically targeted at enhancing NGVL’s function so he is able to undertake activities of daily living.  With increased physical capacity NGVL is likely to have reduced needs for future support.  It does not offend any of the requirements in rule 7.10.

139.  I have been provided with no evidence of any other universal system through which funding for this equipment might be provided.

140.  I am satisfied and find it is appropriate for the NDIS to fund the support.

CONCLUSION

141.  The Tribunal is satisfied that the following support is reasonable and necessary:

a.An Orangutan Plus Funky Monkey Frame with additional accessories including monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapeze and freight to Hillsprings Station.

DECISION

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the direction that reasonable and necessary supports in the applicant’s statement of participant supports should include:

a.Funding for an Orangutan Plus Funky Monkey Frame with additional accessories including monkey bars, jungle rope, flying fox, climbing net, firefighter pole and trapeze and freight to the Applicant’s home at Hillsprings Station;

b.All other supports in the Applicant’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 the Applicant’s statement of participant supports until the reassessment date;

c.The management of the plan is to remain the same as the management currently in place;

d.The review date to be determined by the Agency in consultation with the participant’s nominee.