NPMQ and Chief Executive Officer of the National Disability Insurance Agency (NDIS) - [2024] ARTA 96

NPMQ and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2024] ARTA 96 (29 November 2024)
Applicant/s:  NPMQ
Respondent:  Chief Executive Officer of the National Disability Insurance Agency
Tribunal Number:                2023/5361

Tribunal:Senior Member K Parker
Place:Melbourne
Date:29 November 2024

Decision:The Tribunal sets aside the Decisions under Review and remits this matter to the Respondent for reconsideration in accordance with a Direction that within 14 days of the date of this Decision, the Respondent must facilitate the approval of a new statement of participant supports for the Applicant, containing the following provisions:

a provision to approve funding for the following supports:1.
the purchase of the following assistive technology:(a)
(i)     10.9inch iPad ($599.00); and
(ii)annual subscription to the Apple “Proloquo2Go” application ($399.00);

36 hours per annum of support coordination services (Level 2);(b)
90 hours of specialist behavioural intervention support and 30 hours for behavioural management planning and training in behavioural management strategies”;(c)
(d)12 hours of support worker assistance per week to be provided directly to the Applicant (excluding the provision of any cleaning, home maintenance or other household duties in the Applicant’s home), comprising:
(i)6 hours at the weekday daytime rate;
(ii)3 hours at the Saturday daytime rate; and
(iii)3 hours at the Sunday daytime rate;

(e)replication of the existing funding approved for speech pathology services for the Applicant in his current NDIS plan, plus an additional 13 hours of speech pathology services comprising the following:
(i) an initial one-off two-hourly session with NPMQ’s parents to set up and train them on how to use NPMQ’s iPad and Prolo2Quo software application;
(ii) six 30-minute sessions over the next 12 months with NPMQ’s parents, to regularly check in with them about their use of the above assistive technology to communicate with NPMQ, and to update the software with new vocabulary; and
(iii)eight hours of speech pathology services to be provided by a qualified speech pathologist, for the purpose of attending quarterly two-hour care team meetings, with the Applicant’s other treating allied health therapists and his school, to ensure an effective multidisciplinary approach to the delivery of therapeutic interventions to the Applicant going forward;

replication of the existing funding approved for occupational therapy (“OT”) services for the Applicant in his current NDIS plan, (f)    plus an additional eight hours of OT services to be provided by a qualified occupational therapist for the purpose of attending quarterly two-hour care team meetings per annum, with the Applicant’s other treating allied health therapists and his school, to ensure an effective multidisciplinary approach to the delivery of therapeutic interventions to the Applicant going forward;
a provision specifying that all of the funding approved for the Applicant in accordance with this Direction, be “Agency-managed”;2.
4.   a provision specifying that the funding approved for the Applicant, in accordance with this Direction, in respect of core supports, support coordination services or capacity building supports (including OT services) for the Applicant, is not to be expended in respect of any services (including, without limitation, support worker services, support coordination services, or any allied health services) provided by Mind & Mobility Support Services Pty Ltd, Ideal Support, Compassionate Support & Co. Pty Ltd, Elite Smart, Flourish Holistic Services Pty Ltd, Ms Hiba Hanoosh or Ms Claire Bouraad (or any persons, companies or any other organisations or entities related to any of them or acting as agent for any of them), throughout the duration of the Applicant’s new statement of participant supports to be approved when implementing this Decision; and
5.a provision specifying that subject to the operation of the National Disability Insurance Scheme Act 2013 (Cth), the reassessment date by which the Applicant’s NDIS plan is to be reassessed, will fall on the 12-month anniversary, after the date of approval of the new statement of participant supports for the Applicant in accordance with this Direction.

.......................[SGD].................................................
Senior Member K Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – plan review – child participant – Level 3 autism spectrum disorder, intellectual impairment, attention deficit hyperactivity disorder (ADHD), language difficulties, fine-motor control problems, sleep issues, behaviours of concern – applicant’s family immigrated to Australia as refugees – significant language barriers – review of supports – request for support worker assistance, respite, physiotherapy services, speech pathology, occupational therapy, behavioural support intervention, assistive technology and swimming lessons – consideration of “reasonable and necessary supports” criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – Applicant’s parents both unemployed – support the Applicants’ parents are reasonably expected to provide to the Applicant – issues about effectiveness of supports previously provided by particular service providers and the Applicant’s support coordinators – dispute about plan management specifications – decisions under review set aside and remitted with directions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(Miscellaneous Provisions) Transitional Rules 2024
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(NDIS Supports) Transitional Rules 2024
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Plan Management) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v McGarrigle [2017] FCAFC 132
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852
Secondary Materials
Operational Guidelines issued by National Disability Insurance Agency entitled “Creating your plan” on 3 October 2024 - Creating your plan | NDIS
Operational Guidelines issued by National Disability Insurance Agency entitled “Reasonable and necessary supports” on 22 September 2024 - Reasonable and necessary supports | NDIS
Statement of Reasons
INTRODUCTION

The Applicant, NPMQ, is a child participant in the National Disability Insurance Scheme (‘NDIS’). He is a 10-year old boy who immigrated to Australia in 2022 with his mother, father, and three older sisters. NPMQ and his family live together in their family home in an outer suburb of Melbourne.
NPMQ has been assessed as having a moderate to severe intellectual disability and has been diagnosed with having the conditions of autism spectrum disorder (‘ASD’) and attention deficit hyperactivity disorder (‘ADHD’). He is reported as having significant communication difficulties, fine-motor control problems, sleep issues, and he is described as exhibiting behaviours of concern, including biting his hands when making a demand for an item such as a mobile phone.
The NDIS is governed and administered under the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) and its associated rules (referred to in more detail below).
On 12 December 2022, a delegate of the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (‘NDIA’) approved a statement of participant supports forming part of NPMQ’s NDIS plan, for a notional period of two-years (‘First SOPS’).[1]
[1] T-Documents, T8/57. The T-Documents are the set of documents lodged by the National Disability Insurance Agency (‘NDIA’) in compliance with its obligations under s 37 of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) in force at the relevant time.
On 22 May 2023, a delegate of the CEO approved a 12-month new statement of participant supports for NPMQ (‘Second SOPS’).[2] NPMQ sought review of this decision under s 100 of the NDIS Act.
[2] T-Documents, T9/71.
On 10 July 2023, a delegate of the CEO of the NDIA made an internal review decision under s 100 of the NDIS Act (‘Internal Review Decision’).[3] The Internal Review Decision confirmed the decision to approve the Second SOPS.
[3] T-Documents, T2/14.
On 5 April 2024, during a period that this matter was adjourned part heard, a delegate of the CEO of the NDIA approved a further statement of participant supports for NPMQ (‘Third SOPS’).[4]
[4] Supplementary HTB, A5/27.
In accordance with s 103(2) of the NDIS Act, the decisions under review in this proceeding are the Internal Review Decision and the decision to approve the Third SOPS (collectively referred to as the ‘Decisions Under Review’)’
By the end of the hearing of this matter, NPMQ’s mother requested funding for the following supports for NPMQ (‘Requested Supports’):
(a)support worker assistance (specifically, 35 hours per week comprising 25 hours on weekdays, 5 hours on Saturdays, and 5 hours on Sundays)[5] and a further 12 hours of support worker assistance on five occasions per year, that is, 60 hours of support worker assistance per annum as “respite”; [6]
(b)allied health therapeutic intervention, specifically:[7]
(i)fortnightly sessions of behavioural support therapy;
(ii)weekly sessions of occupational therapy (‘OT’);
(iii)weekly sessions of speech pathology (‘SP’); and
(iv)weekly sessions of physiotherapy;
(c)assistive technology, specifically, one 10.9-inch iPad ($599.00) and the subscription cost for a Proloquo2Go application;[8] and
(d)the cost of swimming lessons for NPMQ.[9]
[5] HTB, A4/7 (list of requested supports provided by NPMQ’s mother on 22 January 2024).
[6] Transcript Day 4, P-99. Please note that the transcript numbering has re-commenced at the start of the fourth hearing day. If the transcript reference numbers referred to in the footnotes do not correspond to the transcript, please check the transcript for the other hearing days.
[7] Ibid.
[8] Transcript Day 4, P-107.
[9] Transcript, P-217
There was also an issue in this application about the plan management specifications in NPMQ’s NDIS plan. Currently, funding in NPMQ’s plan for behavioural support interventions and for supports to set up, develop and process monthly statements, are specified as being “Agency-managed”, while the remainder of the funding in his plan is “plan-managed”.[10] The NDIA is concerned about certain previous expenditure from NPMQ’s plan and that some of it was not aligned with NPMQ’s plan. The NDIA proposes that the Tribunal now specifies that the funding in any new plan for NPMQ be wholly “Agency-managed”.
[10] Supplementary HTB, pp.35, 36.
NPMQ’s mother appeared to agree during the hearing on 26 August 2024 that her son’s NDIS funding should be “Agency-managed”.[11] The next day, on 27 August 2024, NPMQ’s mother wrote to the Tribunal requesting that the funding be “self-managed” and that she is best positioned to understand where the funds are being spent and to ensure that NPMQ receives the support and care which is most appropriate for him. The NDIA requested a resumed hearing so that NPMQ’s mother could be recalled as a witness and the NDIA could question her in relation to certain matters relevant to her (altered) plan management request and past expenditure of NPMQ’s NDIS funding. The Tribunal granted this request.
[11] Transcript Day 4, P-104 & P-105.
On 1 October 2024, the Registry of the Tribunal wrote to the parties about the recent amendments to the NDIS legislation and invited them to make further submissions about those changes. On 11 October 2024, NPMQ’s mother wrote to the Registry of the Tribunal to advise that she would like NPMQ’s NDIS funding to be “plan-managed”. She wrote to the Registry, again, on 15 October 2024 to advise that she would prefer the funding to be “self-managed”.
At a resumed hearing on 7 November 2024, NPMQ’s mother confirmed that she wanted the funding in her son’s NDIS plan to be “self-managed”. At first, she said she was content for it be either “self-managed” or “plan-managed”. Subsequently, at the end of the resumed hearing, NPMQ’s mother withdrew her request to self-manage the funding, and told the Tribunal that she was content for the funding to be “plan-managed”.
During and after the hearing, the NDIA’s maintained its position that all funding in NPMQ’s plan should be “Agency-managed”.
This application for review was made to the Administrative Appeals Tribunal (‘AAT’). On 14 October 2024, the AAT became the Administrative Review Tribunal (‘this Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to this Tribunal. The Transitional Act gives this Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The Tribunal has authority to undertake this review under s 18 of the Administrative Review Tribunal Act 2024 (Cth) (‘ART Act’), operating in conjunction with s 103 of the NDIS Act.
For the reasons set out below, the Tribunal sets aside the Decisions Under Review and remits this matter to the NDIA with a Direction that the NDIA facilitate the approval of a new 12-month SOPS for NPMQ which includes funding for:
(a)support worker assistance for NPMQ equating to 12 hours per week;
(b)the purchase of an iPad for NPMQ, and an annual subscription for the “Proloquo2Go” application;
(c)the existing number of hours (on a pro-rata basis), plus an additional nine hours per annum of speech pathology services;
(d)the existing number of hours (on a pro-rata basis), plus an additional four hours per annum of occupational therapy; and
(e)replication (on a pro-rata basis), of the existing number of hours for behavioural support interventions and support coordination, Level 2, as set out in the Third SOPS.
The new SOPS for NPMQ, to be approved in accordance with this Decision, will specify that all of the funding for him is to be “Agency-managed” and must not be expended on certain persons and companies as specified in paragraph [4] of the Tribunal’s Decision (on page 3 above).
BACKGROUND
It is not in contention in this proceeding that NPMQ’s current impairments have impacted his ability to undertake many activities of daily living which are age appropriate for a 10-year-old boy. NPMQ’s conditions have impacted his ability to learn new things, develop basic living skills, communicate with others and to express his needs and desires. This makes it difficult for him to socialise with his family, peers, and with other people in the community, as would be typical for a 10-year-old boy.
NPMQ and his family fled Iraq as refugees and lived in Jordan for about six years, before immigrating to Australia in 2022 on protection visas. NPMQ’s three sisters, aged 15, 18 and 20, are all living at home with NPMQ and his family. NPMQ’s mother informed the Tribunal that her three daughters were busy with their own study and work commitments. She said the informal support they can provide to NPMQ is very limited. NPMQ’s eldest sister is studying at university. His sister aged 18 is completing her final year of secondary education. His sister aged 15 is completing Year 10.
English is a second language for NPMQ’s parents. NPMQ’s father has been participating in an intensive English course for some time. More recently, NPMQ’s mother also commenced studying in an English course. There are significant challenges in respect of NPMQ’s parents conversing fluently in English and corresponding in the English language. Both of them required significant assistance by an interpreter when giving evidence to the Tribunal at the hearing.
The formal education of both of NPMQ’s parents’ is limited. NPMQ’s parents gave evidence that they do not undertake any paid employment.[12]
[12] Transcript, P-32, P-274.
NPMQ is generally, non-verbal. He can only speak a small number of words. His therapists speak to him in English.
NPMQ is not presently on any medication. NPMQ’s mother gave evidence that she had been advised by NPMQ’s treating doctors previously, that NPMQ should take some medicine to help manage the symptoms relating to his condition of ADHD. However, NPMQ’s mother said she disagrees with this medical advice. She thinks it is detrimental for NPMQ to take medication. She also gave evidence that NPMQ had taken it before and it made him sleepy during the day.
It was apparent to the Tribunal from the evidence, that NPMQ’s medical and clinical treatment for his conditions to date has been sub-optimal. NPMQ occasionally sees a general practitioner, but NPMQ’s mother gave evidence that she takes NPMQ to the doctor when NPMQ is sick or has a high temperature.[13] She said she will not take NPMQ to the doctor on a frequent basis.[14]
[13] Transcript, P-97.
[14] Transcript, P-98.
NPMQ’s mother explained that NPMQ had been on a wait list and more recently, had attended an appointment at the Royal Children’s Hospital (‘RCH’). Specifically, NPMQ saw Dr Amy Williamson, a paediatrician at the RCH, in July 2024. Dr Williamson issued a medical report dated 19 July 2024,[15] which was lodged with the Tribunal (‘Dr Williamson’s Report’). This doctor was not called as a witness at the hearing of this proceeding.
[15] Supplementary HTB, A11/57.
In the lead up to and at the hearing, it was difficult to ascertain from NPMQ’s mother the types and level of supports being requested on behalf of NPMQ. At the hearing, when NPMQ’s mother was asked to describe the supports she wanted for her son, she said she wanted “someone to help her”. When asked what type of support she wanted, NPMQ’s mother answered, “You know the type of help NPMQ needs”. She said she did not know the type of supports he needed. When asked by the Tribunal, again, if she could articulate the type of supports, she wanted for NPMQ, she said she wanted “someone to take him out”. She said if he was taken to the swimming pool two or three hours, it would relieve him from his “negative energy”. She said she needed “specialists” to take him out and that she cannot do that, because if she took out NPMQ, she “cannot take her hands off him”. She added that NPMQ needed to go out on Saturdays and Sundays and needed activities to get him engaged with other children and society. NPMQ’s mother said that she and her husband are isolated and that socially, they cannot go anywhere. She said it is also affecting her daughters, because if they go somewhere, NPMQ does not “remain stable”.
NPMQ’s mother said that NPMQ needed communication assistive technology (‘AT’), occupational therapy (‘OT’), speech pathology (‘SP’), behavioural support intervention, physiotherapy and that he has “sensory issues”. She said she does some massage on NPMQ’s muscles but she does not know the right way to do this and “he feels relief when this is done”.[16]
[16] Transcript P-65.
NPMQ’s NDIS plan history
The First SOPS approved total funding for supports for NPMQ of $34,927.92 over two years, comprising:
(a)$5,808.48 for core supports (“NDIA-managed”), being for assistance with activities of daily living (‘ADLs’) and social, community and civic participation (‘SCCP’), plus $600 for low-cost assistive technology (‘AT’);
(b)$29,119.44 for capacity building supports (“NDIA-managed”), comprising:
(i)$11,639.40 for “Occupational Therapist to assess and provide strategies to increase [NPMQ’s] functional capacity, improve participation in activities and increase independence in activities of daily living”;
(ii)$11,639.40 for a “Speech Pathologist”; and
(iii)$5,840.64 for “Therapy Assistant (L1) to implement the skills and strategies intensively identified and recommended by allied health professionals”.

The Second SOPS removed funding for core supports and increased the level of funding for capacity building supports for NPMQ. The Second SOPS also removed funding in respect of the provision of services by a therapy assistant (see paragraph [29(b)(iii) above] (as distinct from a qualified allied health therapist). Specifically, the Second SOPS approved funding of $27,884.33 over the one-year plan period for the following supports:[17]
(a)$1,485.75 to setup, develop, and process monthly statements (“NDIA-managed”);
(b)$22,793.54 of Improved Daily Living capacity building supports (“plan-managed”), comprising:
(i)$10,475.46 for an “Occupational Therapist” to assess and provide strategies to increase NPMQ’s self-care and daily living skills;
(ii)$10,475.46 for a “Speech Pathologist” to assess and provide strategies to increase his communication skills; and
(c)$3,605.04 for support coordination services (Level 2) for 36 hours per annum (“plan-managed”).
[17] T-Documents, T9.
Flourish Holistic Services Pty Ltd (‘Flourish’), a service provider, who arranged for NPMQ to undergo a functional capacity assessment in June 2023. Flourish issued two versions of the same report (undated), following an assessment undertaken by Ms Hajara Diyab, OT, on 7 June 2023 (‘Ms Diyab’s OT Report’). Those reports were given to the NDIA in support of NPMQ’s request for a review of the Second SOPS under s 100 of the NDIS Act. The only difference between the two versions of those reports is the reference to who was NPMQ’s support coordinator. In one version of the report, NPMQ’s support coordinator is recorded as being Ms Claire Bouraad and it references an “elitesmart.com” email address for her. The other version records that Ms Hiba Hanoosh is NPMQ’s support coordinator, referencing an “elitesmart.com” email address for Ms Hanoosh too.
In Ms Diyab’s OT Report, she states that NPMQ was referred to her by Flourish and that the purpose of her report was to provide:
(a)an overview of NPMQ’s current circumstances;
(b)a summary of his allied health interventions; and
(c)to provide recommendations for further allied health interventions to be included in his next NDIS plan.
Ms Diyab states that NPMQ attended the [name omitted] Special Development School (‘School’) from Monday through to Friday (no hours were specified). Ms Diyab states that NPMQ presented with complex impairments in fine motor skills, self-care tasks, and challenging behaviours. She states that his limited language made it difficult for him to engage successfully in his School and society, without “constant adult prompting and assistance”.
Ms Diyab noted that NPMQ had some “destructive behaviours”, including towards his peers. Ms Diyab identified OT goals for NPMQ and even though NPMQ was virtually non-verbal, that NPMQ be provided with the following supports:
(a)psychology services on a weekly basis, to:
(i)assist with “complex mental health conditions” to help him with learning, behaviour, emotions, mental health; and
(ii)support him through challenges in life, to understand his relationship with his family, manage his emotions and meltdown situation, and physical and mental health well-being;
(b)weekly OT sessions, because:
(i)NPMQ has difficulty completing activities of daily living (‘ADLs’) and household chores to the required age level;
(ii)to develop visual reminders, improve his fine motor skills and writing ability; and
(iii)to develop his ability to share things and take turns when playing games;
(c)that a Positive Behaviour Support Plan (‘BSP’) be developed for NPMQ, with “activity scheduling” and social skills training to help him to socialise, build a network of friends and to be able to participate more in outdoor and community-based activities;
(d)that a SP assessment be undertaken, and the provision of ongoing SP, to help NPMQ communicate his “needs, wants and emotions” clearly, which she states is likely to reduce his verbal and physical aggression. She states that this may also consolidate his ability to socialise with his peers;
(e)that NPMQ be provided with support worker assistance for 25 hours per week and 10 hours on the weekend (Saturday and Sunday) to support coaching, mentoring, participation in the community, going to the garden and park for pursuing his hobby and attend medical appointments, because he does not have any cousins and family members in Melbourne. Evidence was given at the hearing by NPMQ’s parents that they have extended family living in Melbourne. She says that the support workers can role model positive social interactions in the community and help to develop NPMQ’s communication and social skills and model appropriate behaviour. Ms Diyab states that NPMQ could attend social groups and activities and implement strategies in the BSP to ensure consistency and implementation and to decrease his behaviours of concern; and
(f)that NPMQ be provided with sensory toys to calm him down, including, as a priority, sensory chewy gloves to protect him from biting himself.
Ms Diyab recommended that funding of $14,743.24 be approved in NPMQ’s next plan, to provide NPMQ with 76 hours per annum for the following OT services:
(a)7 hours per annum for the reassessment of NPMQ’s goals and achievements;
(b)54 hours per annum ($10,475.46) for OT therapy sessions (at the rate of $193 per hour) inclusive of associated travel to NPMQ’s home;
(c)5 hours per annum for planning for therapy sessions and development of intervention program;
(d)5 hours per annum for follow up and liaison with suppliers, providers, NPMQ, and other key stakeholders; and
(e)5 hrs per annum to prepare a progress report and plan review report, with recommendations for NPMQ’s next plan.
Ms Diyab also recommended other supports for NPMQ including:
(a)funding for capacity building supports to cover the cost of proposed therapy and support;
(b)unspecified AT, to purchase equipment and AT, to improve NPMQ safety and independence;
(c)funding for core supports/consumables, which she described as being required for engaging NPMQ in community and group-based activities; and
(d)funding for support coordination, which she described as being required for “monitoring, reviewing, implementing and advocating” the NDIS plan.
On 4 July 2023, NPMQ’s mother and Ms Hanoosh requested that the NDIA undertake a review under s 100 of the NDIS Act, of the decision to approve the Second SOPS.[18] They challenged the NDIA’s decision not to include funding for support worker assistance in NPMQ’s SOPS to help him with activities of daily living (‘ADLs’), social civic and community participation (‘SCCP’), skills development and training, and low cost AT (for communication and cognitive support). At that stage, they also requested that his funding be increased to pay for more hours of support coordination services. As mentioned above, a delegate of the CEO confirmed the decision to approve the Second SOPS. NPMQ’s mother now seeks review of this decision.
[18] T-Documents, T7.
While this proceeding was on foot before the AAT and now this Tribunal, a delegate of the CEO approved a new SOPS for NPMQ. This is the Third SOPS for NPMQ, as referred to above and it is his current plan. The Third SOPS approved a total amount of $53,098.69 over a period of 12 months to fund the following supports for NPMQ:[19]
[19] Supplementary HTB, A5/27-37.
(a)$1,485.71 to setup, develop, and process monthly statements;
(b)$10,475.46 for OT;
(c)$10,475.46 for SP;
(d)$1,940.30 for “Training For Carers/Parents”;
(e)$25,116.60 comprising:
(i)$19,296.90 for 90 hours of “specialist behavioural intervention support”;[20] and
(ii)$5,819.70 for 30 hours of “behavioural management plan and training in behavioural management strategies”;[21] and
(f)$3,605.04 for “Support Coordination Level 2: Coordination of Supports” for 36 hours per annum.[22]
[20] Ibid, A5/36.
[21] Ibid.
[22] Ibid.
NPMQ’s mother is not satisfied with the Third SOPS and has requested additional support as referred to above in paragraph [9] of these Statement for Reasons.
NPMQ’s goals and aspirations
The stated goals in NPMQ’s Third SOPS, being his most recent SOPS, include the following:[23]
-    I would like to develop my communication skills, so I can clearly express myself and be understood by my family members and peers.
-    I would like to build my confidence and able to make an eye contact with others when talking.
-    I would like to develop an awareness of my surroundings and be able to recognize the places I have visited before.
-    I would like to develop my cognitive and receptive language skills so that I can respond well to others.
-    I would like to improve my fine motor skills so I can write/draw independently.
-    I would like to be more independent with my daily self-care activities such as toileting, feeding, bathing and dressing.
-    I would like to develop my social skills, to learn how take my turn, share toys and able to make friends and maintain friendships.
[23] Ibid, A5/35.
ISSUES
The issues arising for determination by the Tribunal in this proceeding are:
(a)whether each of the Requested Supports are “reasonable and necessary supports” under the provisions of the NDIS Act, and should be funded under NPMQ’s NDIS plan and if so:
(i)at what level or intensity; and
(ii)whether NPMQ’s new SOPS should specify that the funding for supports not be expended on services provided by Ms Hanoosh and/or Ms Bouraad (or any of the entities or persons owned by them or related to them as referred to in more detail below); and
(b)whether NPMQ’s mother’s plan management request should be met (which would mean the funding in NPMQ’s plan is to be “plan-managed”) or instead, whether the funding in NPMQ’s plan should be “Agency-managed”. The sub-issues arising from this issue, include:
(i)whether it would present an unreasonable risk to NPMQ to allow the funding to be “plan-managed”; or
(ii)whether it is likely that s 46 would not be complied with if the funding was “plan-managed”; and
(c)if a new SOPS is approved for NPMQ, to determine the date by which the NDIA must reassess the new plan under the NDIS Act (‘Reassessment Date’).
EVIDENCE, SUBMISSIONS AND HEARING
Evidence
Before the commencement of the hearing, the NDIA lodged the following documentary evidence with the Tribunal:
(a)a set of documents lodged by the NDIA pursuant to its obligations under s 37 of the AAT Act on 7 August 2023 (‘T-Documents’) (166 pages);
(b)Operational Guidelines, issued by the NDIA; and
(c)a joint hearing tender bundle (‘HTB’) (totalling 7 pages), which included a one-page undated witness (carer) statement provided by NPMQ’s mother.
On 19 January 2024, NPMQ’s mother and Ms Bouraad lodged with the Tribunal a brief letter by Dr Al-Rubaye, general practitioner, listing NPMQ’s medical conditions.
In the lead up to the hearing, NPMQ’s mother, and NPMQ’s support coordinator at the time, both considered that they had lodged enough evidence upon which the Tribunal should proceed to make its decision to approve funding for additional supports for NPMQ. This position was contrary to the view of the NDIA. In the directions hearings prior to the commencement of the hearing, the gaps in evidence were discussed on a few occasions with NPMQ’s mother and his support coordinator, Ms Bouraad. In an endeavour to supplement the information, the NDIA requested that the Tribunal issue summonses requiring NPMQ’s service providers and treating health practitioners to produce documents. Those summonses were issued by the Tribunal and some further relevant documents were produced as a result.
Between the first and second stages of the hearing, specifically, on 27 June and 21 July 2024, NPMQ’s mother lodged further new evidence with the Tribunal:
(a)report dated 5 September 2022 following a cognitive assessment undertaken by Ms Gamze Cellatoglu, psychologist, Max Solutions, for the purpose of assessing his eligibility for the “Program for Students with Disabilities” (‘Ms Cellatoglu’s Report’);[24]
(b)medical certificate about NPMQ’s mother, issued by Dr Dana Uthman, general practitioner on 13 June 2024;[25]
(c)letter of support by Ms Sophia Rivarol, Counsellor Advocate, Foundation House dated 14 June 2024, setting out various matters as reported to her by NPMQ’s mother;[26]
(d)medical certificate about NPMQ issued by Dr Uthman on 14 June 2024. This certificate refers to recommended interventions but the interventions are not included in the report. Dr Uthman also states in this certificate that “all information reported on was obtained from teacher report, informal assessment and observations” ;[27]
(e)report outlining SP assessment summary and intervention plan dated 2 July 2024 by Mr Harry Rispin, SP, Advance Therapy, who commenced treating NPMQ in mid-2024 (‘Mr Rispin’s Report’);[28]
(f)Dr Williamson’s Report, as referred to above in paragraph [26]; and
(g)report (undated) by Ms PN from NPMQ’s School stating that NPMQ would benefit from an Augmentative and Alternative Communication (‘ACC’) assessment, AT and other associated supports.[29]
[24] Supplementary HTB, p.4-12.
[25] Ibid, p.38.
[26] Ibid, pp.39-41.
[27] Ibid, pp.42 and 43.
[28] Ibid, pp.44-48.
[29] Lodged with the Tribunal on 27 June 2024, Supplementary HTB, A14/59.
On 26 August 2024, the NDIA lodged a supplementary joint hearing tender bundle with the Tribunal totalling 424 pages (‘Supplementary HTB’), incorporating:
(a)further additional information provided by NPMQ’s mother as referred to in the above paragraph;
(b)NPMQ’s Third SOPS; and
(c)extracts of the sets of documents produced under summons by various medical and health practitioners and NPMQ’s former service providers, including (without limitation):
(i)a allied health report prepared jointly by Ms CX, OT, and Ms DT, SP, at NPMQ’s school, dated 6 October 2022 (‘Ms CX’s/Ms DT’s Report’);[30] and
(ii)a letter by Dr Lakshmi Sundaravel, Immigrant Health Fellow, Royal Children’s Hospital dated 14 December 2022 (‘Dr Sundaravel’s Letter’); and
(d)records produced by the NDIA regarding payment in respect of services provided to NPMQ.
[30] Ibid, p.16.
Submissions
On 5 February 2024, the NDIA lodged its statement of facts, issues, and contentions with the Tribunal (‘NDIA’s SFIC’).
On 8 October 2024, the NDIA lodged further detailed submissions with the Tribunal to address the amendments made to the NDIS Act and associated new transitional rules, in particular, the provisions relating to plan management of the funding in a child participant’s NDIS plan and the determination of “reasonable and necessary supports” to be funded under the NDIS (‘NDIA’s Final Submissions’).[31]
[31] National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(Miscellaneous Provisions) Transitional Rules 2024 and National Disability Insurance Scheme (Getting the NDIS Back on Track No.1)(NDIS Supports) Transitional Rules 2024.
Hearing and changes to witness schedules
NPMQ was not legally represented in this proceeding, nor assisted by a disability advocate. He was represented by his mother, and at the early stages, also by Ms Bouraad.
Before the hearing took place, as mentioned above, NPMQ’s mother and Ms Bouraad were of the view that the information they had provided was sufficient for the Tribunal to assess whether the various mandatory criteria under the NDIS Act were met, in respect of the requested supports and issue of plan management specification. This information was sparse and some of it was out of date. They were resistant to taking steps to supplement this information. It was also difficult to clarify with NPMQ’s mother and Ms Bouraad, the types and levels of the different supports requested for NPMQ even with the assistance of an interpreter. It was the Tribunal’s view that Ms Bouraad’s role in supporting NPMQ’s mother in this proceeding, hindered rather than assisted the process.
The order and identity of witnesses called to give evidence at the hearing was interrupted and rescheduled on a number of occasions, which made the completion of the hearing a challenge. Consequently, the substantive hearing took over four stages. The first stage took place in February 2024, the second in July 2024, the third in August 2024 and the fourth and final stage in November 2024. Ms Blok of counsel represented the NDIA. The relevant NDIA case manager and NDIA in-house lawyer was also present.
The Tribunal was informed before the commencement of the hearing that NPMQ’s former OT, Ms Amanda Lasco, who issued an expert report sought to be relied upon by NPMQ in this matter,[32] would not be available to give evidence because she was no longer employed at her previous firm and had relocated to Queensland. On the first day of the hearing, NPMQ’s mother said NPMQ is no longer dealing with Ms Lasco and Ms Hanoosh had connected him with a speech therapist and OT.[33] NPMQ’s mother gave evidence that Ms RA from Flourish was her son’s “treating OT”. She also referred to Ms Marques and “Ms Hadya” from Flourish.[34] It was apparent that NPMQ’s mother was not aware at that time that Ms RA is not a qualified OT or any other type of allied health professional but rather, a therapy assistant.
[32] T-Documents, T5.
[33] Transcript, P-10.
[34] Transcript, P-10 & P-11.
On the first day of the hearing, NPMQ’s mother was accompanied by Ms Bouraad and Ms Hanoosh. They were both listed as proposed witnesses to be called in support of NPMQ’s application. The Tribunal asked Ms Hanoosh what her role was in respect of NPMQ. Ms Hanoosh said she was an “NDIS provider” and that she had arranged for the provision of core supports to NPMQ before funding for this type of support for NPMQ was “cancel[led]”.[35] On the first day of the hearing, the Tribunal requested that Ms Hanoosh and Ms Bouraad temporarily leave the hearing room, until they had been called as a witness and had concluded giving evidence in the proceeding. Before departing the Tribunal, Ms Hanoosh handed up to the Tribunal a report issued by NPMQ’s former treating speech pathologist, Ms Jennifer Zelenbaba, from Forbes Clinical Services, dated 18 October 2023 (‘Ms Zelenbaba’s Report’).[36] This is the first time this report had been lodged with the Tribunal, and provided to the NDIA.
[35] Transcript, P-2.
[36] HTB, Document A5 (as tendered during the hearing on 8 February 2024), Transcript P-144.
Ms Hanoosh was called by the NDIA for cross-examination on the second day of the hearing. At the commencement of cross-examination, she gave evidence that her company was currently providing support coordination services to NPMQ, which were being delivered by Ms Bouraad.[37] On that basis, Ms Hanoosh was excused as a witness and instead, Ms Bouraad was called to give evidence as she was more directly involved with NPMQ. On 9 February 2024, Ms Bouraad confirmed that she was, at that time, NPMQ’s support coordinator and she commenced in this role in about July 2023.[38]
[37] Transcript, P-122.
[38] Transcript, P-125.
During the hearing, two of NPMQ’s lay witnesses, Ms Bouraad and NPMQ’s father, prematurely departed part way through the process of giving their evidence. NPMQ’s father was recalled by the Tribunal to finish giving his evidence on a subsequent date. The NDIA requested a summons addressed to Ms Bouraad to compel her to complete giving her evidence on the third day of the hearing (that is, on 29 July 2024) and to produce her file in relation to NPMQ. On 26 July 2024, Ms Bouraad wrote to the Tribunal advising that “currently”, she had ceased providing support coordination services to NPMQ and that she was not intending to be involved in the hearing of this application because her mother “was on her deathbed”.

The NDIA informed the Tribunal on 29 July 2024 that it had sent an email to Ms Hanoosh requesting that she attend the Tribunal to give evidence, in place of Ms Bouraad, but had not received a reply from her.[39] This proceeding was listed for a resumed hearing on 26 August 2024 to allow an opportunity for NPMQ’s father to finish giving his evidence and Ms Hanoosh to be recalled as a witness under a summons.
[39] Transcript, P-209.
On 23 August 2024, Ms Hanoosh sent an email to the NDIA stating that she was not the support coordinator for NPMQ.[40] Ms Hanoosh stated in this email that Ms Bouraad is NPMQ’s support coordinator and that Ms Bouraad oversees the services that NPMQ requires. Ms Hanoosh states that Ms Bouraad operates her own company. Ms Hanoosh stated she does not provide any services to NPMQ. Those statements were inconsistent with Ms Hanoosh’s explanation to the Tribunal about her role in relation to NPMQ on the first and second day of the hearing.[41]
[40] Refer to email from Ms Hanoosh to the Tribunal dated 23 August 2024. This letter was signed by Ms Hanoosh from “Ideal Support”.
[41] Transcript, P-3, P-121, P-122, and paragraph [53] above.
On the fourth day of the hearing on 26 August 2024, NPMQ’s mother informed the Tribunal she had changed her position and was content with the level of funding approved for support coordination services in NPMQ’s current plan and was no longer seeking any increase to this funding. Based on this change of position, the NDIA indicated to the Tribunal that it would not continue to press any issue in relation to Ms Hanoosh’s or Ms Bouraad’s continued non-attendance at the resumed hearings.
The last day of the hearing proceeded on 7 November 2024. The Tribunal was able to hear evidence from Ms RA, who had been closely involved in the provision of face-to-face weekly OT to NPMQ, albeit as a therapy assistant. The Tribunal was able to finish hearing oral evidence from NPMQ’s parents which had been interrupted during the earlier hearing days for different reasons.
NPMQ’s mother also relies upon a report which was jointly prepared by two therapists at NPMQ’s school.[42] The Tribunal was informed by the Principal at NPMQ’s School that they would not “release” those therapists to enable them to appear at the hearing before the Tribunal.[43] The Principal expressed a view indicating, in effect, that any evidence to be adduced from those witnesses may be of limited value as they do not provide dedicated one-on-one therapeutic intervention to individual students.
[42] Exhibit A2.
[43] Transcript, P-19, P-26.
At the commencement of the hearing, the Tribunal requested that the Individual Access Plan in respect of NPMQ issued by his school be obtained and lodged with the Tribunal. This was attended to, but most of the information in this Plan was generic, or non-specific to NPMQ, and did not shed light on the identification of NPMQ’s specific disability-related support needs.[44] A progress report from the School was issued in June 2024 and lodged with the Tribunal.[45] The Tribunal has taken the progress report into account.
[44] Transcript, P-26, and Supplementary HTB, A4/19, which was lodged with the Tribunal on 8 February 2024.
[45] Supplementary HTB, A16/69.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
Section 31 of the NDIS Act establishes a set of general principles that apply to the preparation, variation, reassessment, and replacement of a NDIS participant’s plan, and the management of funding of supports, as reproduced below:
31       Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a)       be individualised; and
(b)       be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e)consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f)support communities to respond to the individual goals and needs of participants; and
(g)be underpinned by the right of the participant to exercise control over his or her own life; and
(h)advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i)        maximise the choice and independence of the participant; and
(j)facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k)provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
The purpose of an NDIS plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs the funding the participant is entitled to receive under the NDIS.
Under s 37(1) of the NDIS Act, a participant’s plan does not come into effect until the CEO has received the participant statement of goals and aspirations and the CEO has approved the SOPS.
Section 33 of the NDIS Act sets out certain matters that must be included or specified in a participant’s plan, including a statement that specifies the participant’s objectives, goals and aspirations (see s 33(1)(a)) and the environmental context of the participant’s living, including their living arrangements, informal and other community supports, and social and economic participation (see s 33(1)(b)). The participant’s SOPS is to be prepared with the participant and approved by the CEO (or his or her delegate) and is to specify the matters listed in s 33(2) of the NDIS Act, which includes the “general” and “reasonable and necessary supports”, the date by which the NDIA must reassess the plan, the management of the funding and the management of other aspects of the plan.
Section 33(5) of the NDIS Act requires that the CEO (or their delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant and
(g) have regard to whether section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.
As relevant to this proceeding, the NDIS rules referred to in s 33(5)(d) include 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) Transitional Rules 2024 (‘Transitional Supports Rules’).
The NDIS Act was recently amended by the enactment of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth). Of relevance, the recent amendments introduced a new criterion, s 34(1)(aa), required to be satisfied under s 34 of the NDIS Act, for the decision-maker to be satisfied that a support is a “reasonable and necessary support” and should be funded under a participant’s NDIS plan. These amendments also changed the wording in the criterion under s 34(1)(f). For this criterion to be satisfied, the support must be an “NDIS support”. The new Transitional Supports Rules prescribe a list of what is generally, an “NDIS support” (Schedule 1) and what is “not an NDIS support” (Schedule 2).
Section 34(1) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address the 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 purpose of paragraph (aa);
(a)the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b)a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2)The [NDIS] 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 paragraphs (1)(aa) to (f).
The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43], as follows:[46]
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
[46] The Tribunal notes that this decision was appealed but that the appeal was dismissed: refer National Disability Insurance Agency v McGarrigle [2017] FCAFC 132.
Colvin J in Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 at [17] to [23], decided that there is a two-stage process for a decision-maker to deploy the concept of “reasonable and necessary supports” in the NDIS Act as a whole. The first stage is to decide whether it is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including the guiding principles set out in s 4 of the NDIS Act. The second stage is for the decision-maker to reach an affirmative state of satisfaction as to each of the mandatory criteria set out in s 34(1) of the NDIS Act. Those criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded under the NDIS.
The Tribunal has considered the following Operational Guidance issued by the NDIA (links provided above under the heading “Secondary Materials”):
(a)Operational Guidelines issued by National Disability Insurance Agency entitled “Creating your plan” on 3 October 2024;[47] and
(b)Operational Guidelines issued by National Disability Insurance Agency entitled “Reasonable and necessary supports” on 22 September 2024.[48]
[47] Lodged by the NDIA with the Tribunal on 7 July 2024 .
[48] This updated version was sent to the parties on 25 November 2024 and parties provided with an opportunity to comment on them but they elected not to do so.
CONSIDERATION OF REQUEST FOR SUPPORT WORKER ASSISTANCE
NPMQ is not currently funded for any support worker assistance.
NPMQ’s mother confirmed at the hearing that she would like NPMQ to be funded for a total of 35 hours of support worker assistance per week, comprising, 25 hours during the week, 5 hours on Saturdays and 5 hours on Sundays. NPMQ’s mother said she was not seeking support worker assistance overnight for NPMQ.
At another stage in the hearing, NPMQ’s mother said she was seeking six day of “respite” per year, irrespective of whether that involved a support worker coming to their home or required NPMQ to go somewhere else to receive this support. NPMQ’s mother explained that her request for “respite” as a component of her request for support worker assistance On the second last day of the hearing, when pressed to quantify her request, NPMQ’s mother confirmed that funding for a further 12 hours of support worker assistance for five days per annum (totalling 60 hours) would cover what she wanted for “respite”.[49]
[49] Transcript Day 4, P-199.
During closing submissions on 26 August 2024, the NDIA informed the Tribunal that it conceded that funding for 12 hours per week of support worker services for NPMQ, would be a “reasonable and necessary support” under the NDIS Act. These support hours comprised:
(a)six hours on weekdays, at the daytime rate;
(b)three hours on Saturdays, at the daytime rate;
(c)three hours on Sunday, at the daytime rate.
The NDIA said that the above supports were being offered by the NDIA to cover both NPMQ’s mother’s request for support worker assistance and as respite for her, and her husband.
Whether support worker assistance for NPMQ is a reasonable and necessary support taking into account the NDIS Act as a whole
Public Trustee of South Australia stands as authority for the proposition that the Tribunal is required to consider, as a first stage, whether support worker assistance is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including guiding principles set out in s 4 of the NDIS Act.
Stated objectives under s 3(g) the NDIS Act include to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community. The guiding principles in s 4 of the NDIS Act include the following further principles:
(a)in s 4(1), which provides that people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development;
(b)in s 4(3), which provides that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime;
(c)in s 4(12), which provides that the role of family, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected; and
(d)in s 4(16), which provides that positive personal and social development of people with disability, including children and young people, is to be promoted.
In light of the provisions of the NDIS Act as a whole, the Tribunal is satisfied that the provision of support worker assistance to NPMQ could be a reasonable and necessary support in respect of NPMQ and his individual circumstances, as the provision of such support is aligned with the objectives and principles stated above.
Whether support worker assistance meets the criteria under s 34(1) of the NDIS Act
The Tribunal will now proceed, as a second stage, as articulated in the decision of Public Trustee of South Australia to consider whether each of the mandatory criteria under s 34(1) of the NDIS Act are met.
Section 34(1)(aa) – necessary to address needs arising from an impairment which meets s 24 or s 25
Both parties were provided with an opportunity to provide written and/or oral submissions about the recent amendments to the NDIS Act which included the introduction of a new mandatory criterion, s 34(1)(aa) of the NDIS Act.
In the NDIA’s Final Submissions, it contended that the supports requested by NPMQ and agreed to by the NDIA (which included a request for support worker assistance), were necessary to address the needs of NPMQ arising from his impairments in relation to which he meets s 24 of the NDIS Act.[50] This contention is consistent with the evidence before the Tribunal in this matter. In Ms Cellatoglu’s Report, she recommended that NPMQ receive an unspecified amount of additional support with daily living skills.[51] In Ms CX’s/Ms DT’s Report, they state that NPMQ’s “challenging behaviours occur constantly” in excess of ten time per day, and that he requires constant adult supervision at all times during his day, to ensure his safety and the safety of others. They state that his ASD and speech delay impact on his ability to function safely within any environment, and requires constant adult supervision and prompting to remain safe.[52] They state that NPMQ requires assistance with self-care tasks, his limited language skills and that his fine motor abilities impact on his ability to complete self-care tasks.[53] Accordingly, the Tribunal concludes that this criterion under s 34(1)(aa), is met in respect of the provision of support worker assistance as a support to NPMQ.
[50] NDIA’s Final Submissions at [46].
[51] Supplementary HTB, at p.11.
[52] Supplementary HTB, p.15.
[53] Ibid, p.16.
Section 34(1)(a) – goals and aspirations
Under s 34(1)(a) of the NDIS Act, the Tribunal must be satisfied that support worker assistance will assist NPMQ to pursue his goals, objectives, and aspirations as included in his statement of goals and aspirations within NPMQ’s NDIS plan. They are outlined in paragraph [40] above. There was no contention made by the NDIA that the criterion under s 34(1)(a) is not met in respect of the provision of support worker assistance to NPMQ.[54]
[54] NDIA’s SFIC, [46.6].
The Tribunal is satisfied that this support would assist NPMQ to pursue one of the goals set out in his NDIS plan being, “I would like to develop my social skills, to learn how take my turn, share toys and able to make friends and maintain friendships”. Based on NPMQ’s mother’s evidence, the Tribunal is satisfied that a significant proportion of the support worker assistance provided, is likely to be used to take NPMQ to group activities, swimming, or to play down at a local park, especially on the weekends, which are likely to present opportunities for him to make friends and to develop his social skills, especially when engaging in group activities.