PBZB and National Disability Insurance Agency - [2023] AATA 3385

PBZB and National Disability Insurance Agency [2023] AATA 3385 (20 October 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/2584
Re:PBZB
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member D. Barker
Date:20 October 2023
Place:Sydney

The Tribunal sets aside the Decision Under Review and remits this matter to the NDIA with a direction that within 14 days of the date of this Decision, the NDIA is to facilitate the approval of a new SOPS for PBZB (New SOPS) which includes the following provisions:
(a)a provision specifying that the reassessment date will fall on the 12-month anniversary of the date of approval of the New SOPS (Reassessment Date);
(b)provisions approving funding for:
i.14 hours per week Early Intensive Behaviour Intervention, 50 weeks per year, at Therapy Assistant Level 2 weekday rate for the period 30 October 2020, until the date of his commencement of school in 2023;
ii.1 hour a week for therapy program supervision, 50 weeks per year, for the period 30 October 2020, until the date of his commencement of school in 2023;
iii.speech therapy – 2 hours per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per week for a further period to end on the Reassessment Date, plus 4 hours of report writing per year;
iv.psychology - 1 hour per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per fortnight for a further period to end on the Reassessment Date, plus 8 hours per annum to fund a standardised assessment by a psychologist;
v.occupational therapy - 1 hour per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per fortnight for a further period to end on the Reassessment Date, plus 4 hours of report writing per year;
vi.school consultation – 18 hours per annum;
vii.dietician – 4 hours per annum;
viii.replication (on a pro-rata basis) of all other existing supports in PBZB’s current SOPS (except for any one-off funding which has already been expended or any funding for supports to be replaced by the supports referred to in paragraph 1(b) above); and
provision(s) specifying that the plan is to be managed as presently specified in PBZB’s current SOPS.
...................................[SGD].....................................
Member D. Barker
CATCHWORDS
NATIONAL DISABILITY INSURANCE AGENCY – whether early intervention supports are reasonable and necessary – Tribunal has jurisdiction to consider the inclusion of supports from the date of approval of a Statement of Participant Supports – reimbursement – Tribunal has discretion to determine the weight of evidence – whether supports are value for money – whether supports are effective and beneficial – decision set aside and remitted with directions.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
CASES
Beezley v Repatriation Commission (2015) 150 ALD 11
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Klewer v National Disability Insurance Agency [2023] FCA 630
LKZX and National Disability Insurance Agency [2022] AATA 327
McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
Palin and National Disability Insurance Agency [2023] AATA 94
Pearce and National Disability Insurance Agency [2022] AATA 3608
PYQJ and National Disability Insurance Agency [2023] AATA 37
QDKH and National Disability Insurance Agency [2021] FCAFC 189
Re Firth and Minister for Capital Territory (1979) 2 ALD 183
Re Hill and Wilson and Minister for Capital Territory (1979) 2 ALD 457
Re MKKR and Minister of Immigration [2016] AATA 458
Re Quinlivan and Minister for Capital Territory (No 2) (1979) 2 ALN No 59
Rogers and National Disability Insurance Agency [2022] AATA 2809
RTRH and National Disability Insurance Agency [2022] AATA 205
RQWY and National Disability Insurance Agency [2023] AATA 56
XXWC and National Disability Insurance Agency [2020] AATA 923
REASONS FOR DECISION
20 October 2023
Member D. Barker
APPLICATION
PBZB,[1] is a child participant in the National Disability Insurance Scheme[2] (NDIS) who has been diagnosed with Autism Spectrum Disorder of Level 2 severity (ASD)[3]. He has a disability arising from language and other impairments resulting from that and other co-morbid conditions.[4]
[1] The Applicant is a child and so is name will be the pseudonym, PBZB. Other identifying information has been omitted from these Reasons for Decision, where indicated, to maintain the Applicant’s confidentiality. Confidentiality orders have been made in this application pursuant to s 35 of the Administrative Appeals Tribunal Act 1975 (Cth). In these Reasons for Decision, the Applicant is hereafter mostly referred to as PBZB and the Respondent is mostly referred to as the NDIA.
[2] National Disability Insurance Scheme is defined in section 9 of the National Disability Insurance Scheme Act 2013 (Cth) to mean the arrangements set out in Chapters 2 and 3.
[3] Letter of Associate Professor Connell, Consultant Paediatrician and Chief of Medicine, Royal Children’s Hospital Melbourne, dated 4 September 2020, T10.
[4] Report of Associate Professor McDowell, Consultant Paediatrician, dated 28 February 2022.
This application concerns a request in PBZB’s existing funding for early intervention support at a sufficient intensity level to assist him in meeting the goals as identified in his NDIS Plan.
At that time the extra funding was sought, PBZB was four years old, and it was anticipated that he may commence school in 2022. This did not occur as PBZB was, in the latter part of 2021, assessed as ‘not school ready’. Subsequently, PBZB commenced school in 2023, and whilst his parents report that his support needs have altered as a consequence of this change, they contend that the funds available in his NDIS plan continue to be insufficient to effectively assist him in meeting the goals and aspirations identified in PBZB’s NDIS plan.
The Tribunal’s jurisdiction arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), and operates in conjunction with s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDISAct).
The matter proceeded to hearing between 10 May 2023 and 12 May 2023. PBZB was represented by his father. The NDIA, being the Respondent in this matter was represented at hearing by Counsel, Mr Jonathon Barrington.
The issue before the Tribunal is whether the level of early intervention support sought by PBZB is a ‘reasonable and necessary’ support pursuant to section 34 of the NDIS Act.
The issues arising in this application include:
a)whether the level of early intervention supports sought by PBZB are “reasonable and necessary supports” under s 34(1) of the NDIS Act and should be funded under PBZB’s NDIS Plan (as of 30 October 2020, being the date of the SOPS from which PBZB sought review); and if not,
b)what type and level of supports (if any), additional to the supports that have been funded under PBZB’s NDIS plans since 30 October 2020, are appropriately funded under s 34 of the NDIS Act and should be included in a new SOPS for PBZB.
c)Should the NDIA reimburse PBZB’s parents for costs associated with PBZB’s enrolment in the Little Learners program and other supports accessed for PBZB, which they met from their own financial resources; if so,
d)The amount PBZB’s parents should be reimbursed in relation to costs paid from their own financial resources to AP.
For the reasons set out below, the Tribunal sets aside the Decision Under Review and remits the matter to the Respondent for reconsideration with a direction that the Respondent facilitates the approval of a New SOPS for PBZB as outlined in the Decision (on pages 1 and 2 above).
BACKGROUND
PBZB is a 7-year-old boy living with his mother and father in Victoria. PBZB’s mother works fulltime, his father has retired from the workforce in order to be available to provide required care to PBZB.
PBZB was conceived by in vitro fertilisation and was born at full-term by caesarean section in 2016. He is reported to have grown slowly as a toddler and was slow to achieve early developmental milestones.[5] He was assessed by a speech pathologist in March 2020 and found to have receptive and expressive language abilities below average for his age.[6] PBZB was subsequently diagnosed with ASD (level 2) by Associate Professor Connell, Consultant Paediatrician at the Royal Children’s Hospital Melbourne.[7]
[5] Diagnostic Assessment Report, prepared by Susan Glencross, psychologist, Autism Partnership Australia, dated 28 September 2020, T11, 31.
[6] Ibid.
[7] Letter of Associate Professor Connell, dated 4 September 2020, T10.
PBZB was accepted as a participant of the NDIS in October 2020, with his initial NDIS Plan approved by the NDIA on 30 October 2020.[8]
[8] NDIS Plan, dated 30 October 2020, T18.
PBZB’s October 2020 NDIS Plan
The NDIS Plan approved on 30 October 2020 (the October 2020 NDIS Plan) specified his goals, objectives and aspirations as follows:
(a)Short-term goal – PBZB’s parent’s would like PBZB to improve his fine motor skills so he can be more independent in daily living tasks up to an age appropriate level.
(b)Medium or long-term goal - PBZB’s parent’s would like PBZB to build his communication skills so he can initiate and [be] involved in conversations.
(c)Medium or long-term goal - PBZB’s parent’s would like PBZB to build more skills around his self-care tasks. Parents also want PBZB to have support so he can be toilet trained.
(d)Medium or long-term goal - PBZB’s parent’s would like PBZB to recogni[s]e his emotions and behaviours and express how he feels to others.
(e)Medium or long-term goal - PBZB’s parent’s would like PBZB to build his level of awareness so he can behave safely when he is at home, out at park or shopping centres.
(f)Medium or long-term goal - PBZB’s parent’s would like PBZB to build his social skills and be better at maintaining and building friendships.
The Statement of Participant Supports component of PBZB’s October 2020 NDIS Plan provided funding as follows:
Core Supports   Budget
Basic (Level 1) and standard (Level 2) assistive technology  $1,000
Continence products  $657.04
Total Core Supports – self managed  $1,657.04
Capacity Building Supports
Improved Daily Living (CB Daily Activity)
Provision of Early Childhood intervention supports to work together
within the home and community settings, utilising relevant disciplines
to support and advise the family in order to meet the participants plan
goals. To include a progress report at plan review on outcomes against
the NDIS plan goals and the participants ongoing functional needs.
Total Capacity Building Supports – self managed  $18,995.19
Internal Review Decision of 26 March 2021
On 8 February 2021, PBZB sought a review of the decision to approve the October NDIS Plan by a “reviewer” of the NDIA under s 100(6) of the NDIS Act. Increased funding was sought to facilitate PBZB’s participation in early childhood intervention supports at an intensity level recommended to his parents. In a phone conversation on 23 March 2021, PBZB’s parents informed the NDIA that they had made a deposit of $11,000 to secure a place in a program providing applied behavioural analysis (ABA) and that their intention was for PBZB to enrol in an ABA program, the Little Learners Program, delivered by a privately-owned service provider, Autism Partnership, for 27 hours per week to prepare PBZB for school in 2022.[9]
[9] Internal review decision, dated 26 March 2021, CB 2.
A letter prepared by Ms Susan Glencross, a Psychologist from Autism Partnership, provided to the NDIA in association with the request for a review of PBZB’s October 2020 NDIS Plan,[10] details the supports for PBZB which were recommended to his parents as follows:
Given the complexity of [PBZB’s] presentation, and his high support needs, it is recommended that [PBZB] receive an individualised intervention program based on an Applied Behaviour Analysis framework. For children [PBZB’s] age, the research indicates a minimum of 26 hours per week of intervention, which can be in the home or a clinic-based program. [PBZB] should be under the care of an allied health team that includes Psychology and Speech Pathology consultation.
[10] Letter prepared by Susan Glencross, Psychologist, Autism Partnership, dated 12 November 2020, T13.
The recommendation that PBZB should receive an individualised intervention program to support his learning and development through ABA at a recommended intensity of 26 hours per week in either a home or clinic-based program, was also made in a diagnostic assessment report, at the request of PBZB’s parents, by a psychologist at that time employed by Autism Partnership, Susan Glencross.[11]
[11] Diagnostic Assessment report prepared by Susan Glencross, Psychologist on basis of assessment consultations on 28 September 2020 and 9 October 2020, T11.
Services offered by Autism Partnership, including the Little Learners program, are detailed in Autism Partnership Fee Schedule Explanatory notes,[12] which in conjunction with a copy of an invoice for a non-refundable holding deposit for PBZB’s enrolment in “Little Learners – North Melbourne”[13] were provided to the NDIA in association with the request for an internal review of the SOPS associated with PBZB’s October 2020 NDIS Plan.
[12] Autism Partnership Explanatory notes, T16.
[13] invoice for a non-refundable holding deposit for PBZB’s enrolment in “Little Learners – North Melbourne”, T15.
On 26 March 2021, the NDIA “reviewer” affirmed the decision to approve the SOPS contained in PBZB’s October 2020 NDIS Plan (the Internal Review Decision).[14] The “reviewer” noted that they were not satisfied the requested funding for ABA therapy,[15] when assessed against each of the criteria of s 34 of the NDIS Act, was a reasonable and necessary support. The explanation for not accepting PBZB’s parent’s request for funding to pay costs associated with the Little Learners program was set out in the Internal Review Decision as follows:
Value for Money – s 34(1)(c)
In order to meet this criteria, a support must be considered value for money. To determine if a support is value for money, I look at whether the cost of the support is reasonable in light of the benefits it provides, and the cost of alternative supports that could provide a similar outcome for a lower cost.
Effective and Beneficial – s 34(1)(d)
In order to meet this criteria, a support must be likely to be effective and beneficial having regard to current good practice. I am not satisfied that this requirement has been met. The NDIS had funded 96 hours totalling $18,623.04 for therapies in [PBZB]’s plan. In a phone conversation on 23 March 2021 (Materials reviewed, Item 8), you advised that you have made a deposit of $11,000 to secure a place in an ABA program and that your intention was for [PBZB] to participate in ABA therapy for 27 hours per week to prepare [PBZB] for school in 2022.
I have insufficient qualified evidence at this time that additional therapy hours would be more effective for [PBZB] given that no therapeutic intervention has been implemented. The current Capacity Building Improved Daily Living budget provides for multidisciplinary therapy supports for weekly interventions to develop age appropriate independence in activities of daily living, develop expressive and receptive language and develop sound social skills. [PBZB] is only 4 years of age and under Participant Rules 3.4 (Item 8), his parents are responsible for providing substantial care and support, which includes supporting [PBZB] with the consistent implementation of therapy strategies in his natural settings. I cannot be satisfied that funding approximately $120,000 per annum for ABA is value for money based on the significant Capacity Building supports already funded. You have choice and control to implement the most appropriate therapeutic intervention for [PBZB].
Parents or providers will often request specific programs to be funded. It is important to remember that the NDIS does not approve funding based on specific ‘programs’ but rather, we consider the evidence that an intensive level of capacity building supports is required. I am not satisfied the requested support would give the desired effect and be the most advantageous in supporting [PBZB] to build his capacity and therefore is not reasonable and necessary and cannot be funded by the NDIS.
[14] NDIA Internal Review Decision dated 26 March 2021, T2.
[15] Term used by NDIA reviewer when referring to the Autism Partnership Little learners program.
Review application
On 21 April 2021, PBZB’s parents applied to the Administrative Appeals Tribunal (the AAT) for a review of the NDIA’s Internal Review Decision.[16]
[16] AAT Application for review of a Decision – dated 21 April 2021, T1.
PBZB’s parents contend that there are two substantive matters for the Tribunal to resolve. The first is the reviewable decision made in March 2021. The second refers to having a SOPS for a twelve-month period commencing 1 April 2023.[17] In their closing submissions, Counsel for the NDIA notes that in their oral opening submissions to the Tribunal, they described the review as having both a “backward-looking” and “forward-looking” component. Counsel contends that these are probably slightly misleading descriptions, but proceeds to note that a critical dividing point was when the Applicant commenced primary school in January 2023.
[17] Ibid [1].
The NDIA has also contended that at least two jurisdictional issues might be seen to arise on this review.[18] The first being the issue of reimbursement for costs incurred by PBZB’s parents in funding supports not encompassed by SOPS associated with his NDIS plan, and the second being the scope of any order made as a consequence of the plan under review been automatically rolled over several times. The Tribunal has, as an initial consideration, turned its mind to these possible jurisdictional issues.
[18] Respondent’s closing submissions dated 31 May 2023, submitted to the Tribunal on 31 May 2023, [6]–[8].
The Tribunal concurs with the view held by the parties that PBZB’s transition to school is a significant point in time and that it is necessary to consider both the early intervention supports for PBZB, which may have been reasonable and necessary from the date on which his NDIS plan was approved in October 2020 until he commenced school in 2023, and supports which are reasonable and necessary now that PBZB has commenced primary school in 2023.
The Tribunal notes that the High Court in Frugtniet v Australian Securities and Investments Commission[19] confirmed the long-settled scope and limitations of the Tribunal’s review jurisdiction as requiring the Tribunal to re-consider, afresh, the question before the primary decision maker and to address the same question the primary decision-maker was required to address. In QDKH and the National Disability Insurance Agency,[20] the Full Court of the Federal Court, applied the reasoning in Frugtniet, noting that the decision whether to ‘approve’ a ‘statement of participant supports’ under subsection 33(2) of the NDIS Act was informed by the scope of that provision. In Minister for Immigration and Border Protection v Makasa,[21] the High Court stated: “[t]he function of the AAT … is “to do over again” that which was done by the primary decision-maker”.[22]
[19]Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250.
[20] QDKH and National Disability Insurance Agency [2021] FCAFC 189, [10(d)] (QDKH).
[21] Minister for Immigration and Border Protection v Makasa [2021] HCA 1.
[22] Ibid, [50] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ).

The Tribunal notes that it is not a matter for parties to determine the scope of the review, nor is the Tribunal required to answer the question being asked of it by the parties. The Tribunal is to discharge its statutory function on review, which in the current matter is a review of the decision of the NDIA on 26 March 2021 to affirm the plan for PBZB approved by the NDIA on 30 October 2020. However, in doing so, the Tribunal notes that it is not limited to consideration of matters at the time of the internal review decision. Rather, it is obliged to consider the totality of relevant matters from the date the original decision first had (or could have had) effect.[23]
[23] RTRH and National Disability Insurance Agency [2022] AATA 205, [93]. See also QDKH, [7].
It is a matter for the Tribunal to consider the evidence available at the time of hearing and determine, having regard to that evidence, whether the statement of participant supports (the SOPS) in the reviewable decision, specifies the reasonable and necessary supports required by PBZB to work towards the achievement of the goals and aspirations identified in his NDIS plan.
The decision of the Tribunal automatically takes effect from the date on which the decision under review has or had effect.[24] This may date as far back as the CEO’s original decision if aspects of the SOPS are to be specified for the supports which should have been specified in the original decision, particularly where the participant has already been meeting the cost. However, for forward-looking issues, such as re-assessment dates and funding for support not yet paid for by the participant, it may be necessary to expressly stipulate that these supports are to be funded from the date of the decision and not earlier. The preferable approach will depend on the facts in each case.
[24] Section 43(6) AAT Act.
Reimbursement
The issue of reimbursement was raised by PBZB in September 2022[25] in relation to costs incurred by PBZB’s parents over the 53-week period — March 2021 through to early April 2022. The costs were associated with PBZB’s participation in “Autism Partnership 27 hours per week Little Learners Program for intensive ABA therapy”.[26] In these submissions, PBZB states that the NDIA would be aware that “compensation is not within the power of the Commission”, which the Tribunal has taken to be PBZB acknowledging that the Tribunal does not have the power to order reimbursement. In their submissions, PBZB has made reference to a decision of the Tribunal XXWC and National Disability Insurance Agency (XXWC),[27] which is a case where the Tribunal had before it somewhat similar issues to those that arise in the current matter in that an increase in the budget for Capacity Building Supports for a child participant of the NDIS with a diagnosis of ASD was sought in order for the child participant to have increased access to weekly Early Intensive Behaviour Intervention (EIBI). Relevantly, the parents of the child participant also sought reimbursement for the difference between what they had incurred in providing Capacity Building supports to the child participant, and what the NDIA funded through the Capacity Building component of the relevant plan and a further amount recovered from Medicare.
[25] Applicant’s Submission dated 9 September 2022 CB[40], referenced in Applicant’s Updated Statement of Facts, Issues and Contentions, dated 29 March 2023.
[26] September 2022 PBZB Applicant Submission CB 40, 10, [62].
[27] [2020] AATA 923.
In XXWC, with respect to reimbursement, DP Forgie noted:
119.Whatever I decide in this matter, it is clear from the position agreed upon by the parties regarding an additional 18 hours of EIBI that the budget for Improved Daily living in the Plan would be increased. Had that budget appeared in the Plan as originally approved, XXWC’s parents would have been paid by the Agency directly for the EIBI up to 18 hours up to the total budget. As it is, XXWC’s parents have paid the costs of those 18 hours during the life of the Plan from their own pocket. They now ask me to make an order that the Agency reimburse the costs of EIBI for those 18 hours each week.
120.I have decided that I cannot make that order. The reason why I cannot do so lies in the limits of the power that I have to review decisions of the Agency. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that an enactment may provide that applications may be made to the Tribunal for review of a decision made in the exercise of powers conferred by that enactment. The NDIS Act is such an enactment when it provides in s 103 that applications may be made to the Tribunal for review of a decision made by a reviewer under s 100(6). Decisions that a reviewer may make under s 100(6) are made after a person directly affected by a reviewable decision asks the decision-maker, in this case the CEO, to review that decision. The decisions that come within the description of a “reviewable decision” are those set out in ss 99(1) and (2) of the NDIS Act.
……….
124.There is nothing in the scope of the decision that must be made or in the matters, to which regard must be had, that deals with payment of supports approved in a statement of participant supports. That means that payment is not a matter within the scope of the Tribunal’s power to review. I would also note that decisions about payment are not specified as reviewable decisions in s 99 of the NDIS Act. As I cannot review any decisions about payment, I have no power to order that any amount of XXWC’s parents’ expenditure be reimbursed. That is not to say that the Agency itself does not have power to reimburse XXWC’s parents for monies they have expended on EIBI but what it requires to authorise reimbursement is a matter for it and its auditors.
In the September 2022 PBZB Applicant Submission, PBZB submits that “the AAT may be unable to address reimbursement of costs as they fall outside its jurisdiction. However, in remitting the S100 decision with instructions, the AAT can provide a basis for the Respondent to take remedial action about past costs incurred by the Applicant”.[28]
[28] Applicant’s Submission dated 9 September 2022 [89].
In their October 2022 SFICS, the NDIA contends that the Applicant’s claim for “reimbursement” is not one properly raised in this Tribunal and conveyed their impression that PBZB appeared to accept that was so.
In SFICS prepared in March 2023,[29] PBZB contends that in April 2022 they rejected an offer by the NDIA “to provide 15 hours of support (compared to their original 2 hours of support). This offer was rejected for two reasons (i) we believe the quantum should have been 20 and (ii) they refused to consider and resolve the matter of reimbursement.”[30] PBZB contends that it is fair that the NDIA provide reimbursement and submitted that “We believe reimbursement is justified and seek to share costs on an 85% (NDIS), 15% (family) basis. This proportion would mean that PBZB family would shoulder $22,393 in costs as well as the $13,726 costs incurred at Queensberry. We consider reimbursement ought to be resolved concurrently with agreeing on a support plan for PBZB”.[31]
[29] Applicant’s Additional SFICS, dated 29 March 2023.
[30] Ibid, 4.
[31] Ibid.
In their Reply SFICS, dated 21 April 2023, the NDIA notes that, contrary to their understanding, as referred to in their SFICS of October 2022, PBZB’s submissions confirm that they are requesting to be reimbursed by the NDIA for 85% of their out of pocket costs put towards ABA therapy ($149,289.00) with Autism Partnership.[32] In the Respondent Reply SFICS, the NDIA reiterate their contention that the reimbursement issue is not one properly raised in this Tribunal, as the issue of payment or reimbursement by the NDIA is not a reviewable decision that is set out in s 99 of the NDIS Act, and therefore does not fall within the Tribunal’s jurisdiction.[33]
[32] Respondent Reply SFICS, dated 21 April 2023, [46].
[33] Ibid, [47].
In their closing submissions, the NDIA make further comment in relation to the reimbursement issue, noting that “It is as well to emphasise at the outset that whatever the supports the Tribunal finds were reasonable and necessary supports during this period, the Agency submits the Tribunal has no power to order that the Agency reimburse the Applicant (or his parents)”.[34]
[34] Respondent’s Closing Submissions, dated 31 May 2023, [7].
Further to these submissions, the Tribunal has received correspondence from the parties about their differing views as to whether PBZB or the NDIA made a settlement offer to the amount of $85,000, equivalent to 22.3 hours a week of funding for the Little Learners program. The NDIA contends that they did not make this offer and that rather, an offer was made by PBZB to the NDIA in writing on 9 September 2022.[35] PBZB, by way of an email also filed with the Tribunal on 11 July 2023, contends a conversation took place between the parties on 20 March 2023 in which the “Respondent lawyer raised the issue with us of the acceptability of an $85,000 settlement to address our request for reimbursement”.[36]
[35] Email from lawyer for the Respondent dated 11 July 2023.
[36] Email from PBZB’s father 11 July 2023.
Discussions between the parties outside of the hearing, whether they be in events associated with the Tribunal’s alternate dispute pathway, or entirely external to the Tribunal, are not material for the Tribunal’s consideration unless they feature in documents or testimony which are accepted as evidence in association with the review. Agreements or negotiations between the parties, which may in full or part reflect agreements to settle issues in dispute between the parties, are not matters which fall under the jurisdiction of the Tribunal, unless they are agreed terms proposed and put to the Tribunal in association with a request for the Tribunal remit the decision under s 42C or s 42D of the AAT Act. Accordingly, the Tribunal does not perceive it has a role in determining the parties dispute with regard to details surrounding an alleged offer of settlement for costs incurred by PBZB’s family with respect to the Little Leaners program.
As to the issue of reimbursement more broadly and as discussed above, the Tribunal’s jurisdiction is limited to the scope of the primary decision maker,[37] and there is nothing in the scope of a decision under s 33(2) of the Act which deals with payment of support. Any request for an order explicitly requiring reimbursement would be outside the Tribunal’s jurisdiction. This is because decisions regarding payments are not reviewable under the present statutory scheme.[38]
[37] Makasa, [50]; QDKH[10]; Rogers and National Disability Insurance Agency [2022] AATA 2809, [18].
[38] XXWC and National Disability Insurance Agency [2020] AATA 923, [124].
Although the Tribunal cannot order reimbursement, as appears understood and acknowledged by the parties, the Tribunal does have power to determine that a support is reasonable and necessary in any SOPS it has jurisdiction to review, including a past SOPS. Pursuant to s 39 of the Act, the Agency must comply with the SOPS in a plan. Accordingly, if the Tribunal finds a support is reasonable and necessary, and a participant can sufficiently demonstrate that they have expended personal funds relating to the acquisition of that support, then the Agency is required to reimburse that participant.[39] What evidence the Agency considers is necessary to provide reimbursement is solely a matter for itself and its auditors.[40]
[39] RTRH and National Disability Insurance Agency [2022] AATA 205, [163]
[40] XXWC [124].
The Tribunal notes that its jurisdiction extends to the date of the primary decision under review. A decision under s 100(6) does not result in a new decision under s 33(2) or engage s 37(3) of the Act to replace the plan in effect. Accordingly, the Applicant would be able to seek the Tribunal to determine that supports are reasonable and necessary from the date of the SOPS as originally approved (being 20 October 2020).[41]
[41] RTRH [112]-[113].
Reimbursement of costs would only be permissible where the purchase is made, and the costs are incurred and expended, within the effective period of any relevant SOPS.[42] A planning decision is necessarily prospective, and reimbursement cannot be provided for a support purchased and provided prior to the primary review decision.[43]
[42] LKZX and National Disability Insurance Agency [2022] AATA 327, [48].
[43] Palin and National Disability Insurance Agency [2023] AATA 94, [35]-[42].
Relevant to these factors, when asked by the parties, on 14 July 2023, to consider remitting the matter pursuant to s 42D of the AAT Act, the Tribunal brought the attention of the parties to a recent decision of the Federal Court of Australia in Klewer v National Disability Insurance Agency ,[44] and sought submissions from the parties as to the possible implication of any such s 42D remittal order may have on any final orders made by the Tribunal in relation to the review.[45] The Tribunal notes a subsequent email from the NDIA on 3 August 2023 which states in part:
The Respondent in consultation with the Applicant’s representative share the Tribunal’s concerns that in light of the Klewer decision that remitting the decision under review to vary the decision pursuant to s 42D(1) may interfere with the Tribunal’s review powers in this matter.
Subsequently, the Parties by consent wish to express to the Tribunal their shared agreement not to proceed with the s 42D application lodged with the Tribunal. It is the Parties’ view that this would be the most prudent course to ensure that the Tribunal retains the appropriate review powers and jurisdiction to consider the issues raised at the final hearing.
Are there jurisdictional implications arising from the automatic roll over of the SOPS from PBZB’s October 2020 NDIS plan?
[44] [2023] FCA 630.
[45]The Applicant, in their September 2022 PBZB Applicant Submission refer to a “Section 42D remittal process” taking place in September 2021, whereby the Respondent extended funding for a period of a further six months, “to ensure the Applicant continues to have access to necessary NDIS supports while the application is before the Tribunal”. Any remittal decision, under s 42D of the AAT Act, is for the Tribunal to make, either on request of the parties, or of its own volition. The Tribunal has reviewed the records pertaining to this matter and notes that no such s 42D remittal decision was made in September 2021, or any other time.
The plan under review in this matter is the internal review decision of 26 March 2021, which affirmed the NDIS plan and SOPS for PBZB approved on 30 October 2020. The scheduled review date for this plan was 30 October 2021, however that did not occur as the matter was by that stage before the Tribunal, and as a consequence, the funding associated with the SOPS in PBZB’s October 2020 NDIS plan has been automatically rolled over on 30 October 2021 and 30 October 2022.[46]
[46] Confirmed by email from Respondent received 6 July 2023.
In their closing submissions, the NDIA notes that this may be seen to give rise to a jurisdictional issue if the Tribunal was to take a similar view as was taken in Pearce and National Disability Insurance Agency,[47] where the Tribunal (differently constituted) considered that the automatic rolling over of a plan had the effect of ending the plan under review.[48] The Tribunal thus found that it did not have jurisdiction or power to alter, at law, the nature of the supports now to be provided to the applicant and funded under the Scheme. The NDIA further notes that in Pearce, the Tribunal accommodated a practical workaround to any jurisdictional issue, with the NDIA in that case having agreed to, in effect, “endeavour to reflect what the Tribunal decided in this proceeding in a new or varied plan”.[49] By way of submissions received more recently,[50] the NDIA submits that the automatic plan extensions do not constitute new plan decisions. That is, the original plan decision and SOPS of 30 October 2020 remains in effect.
[47] Pearce and National Disability Insurance Agency [2022] AATA 3608.
[48] Ibid, [28]-[41] (SM Furnell).
[49] Ibid, [41], [88] – [90] (SM Furnell).
[50] Email received 3 August 2023.
The Tribunal concurs with this view, and finds that that the original plan decision and SOPS of 30 October 2020 remains in effect. As a consequence, consistent with the principles discussed in Frugtniet and QDKH, the Tribunal has jurisdiction to consider any request that a support be determined as reasonable and necessary for inclusion in the SOPS from October 2020 to the present.
LEGISLATION
The NDIS, implemented under the NDIS Act, established the statutory framework for a new national program for the delivery of supports and services funded under the NDIS, to eligible people living with disability to help them in their everyday lives by supporting their independence and social and economic participation, and enabling them to exercise choice and control over the planning and the delivery of their supports.
The NDIS Act established the NDIA,[51] the independent body responsible for the administration of the NDIS. The functions of the NDIA are set out in section 118 of the NDIS Act. The powers of the Agency are set out in section 119 of the NDIS Act.
[51] National Disability Insurance Scheme Act 2013 (Cth) section 117. (NDIS Act)
The objects of the NDIS Act are set out in section 3 of the NDIS Act and include supporting the independence and social and economic participation of people with disability;[52] providing reasonable and necessary supports, including early intervention supports, for participants;[53] enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports;[54], facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;[55] and promoting the provision of high quality and innovative supports to people with disability.[56]
[52] Ibid section 3(1)(c).
[53] Ibid section 3(1)(d).
[54] Ibid section 3(1)(e).
[55] Ibid section 3(1)(f).
[56] Ibid section 3(1)(g)
After a person becomes a participant of the NDIS, they develop a plan with the Agency in two parts. The first part to the development of a participant’s plan includes the preparation of a statement that specifies the goals, objectives and aspirations of the participant, the environmental and personal context of the participant’s living, including the participant’s living arrangements and informal community supports, and other community supports and their social and economic participation.[57]
[57] Ibid section 33.
The second part to the development of a participant’s plan includes the preparation of another statement, the statement of participant supports (SOPS) that must be included in the participant’s plan as required under subsection 33(2) of the NDIS Act. This statement, which must be prepared with the participant and approved by the CEO, specifies a number of matters, including: the general supports (if any) that will be provided to, or in relation to, the participant; the reasonable and necessary supports (if any) that will be funded under the NDIS; the date by which, or the circumstances in which, the Agency must reassess the plan under Division 4; the management of the funding for supports under the plan;[58] and the management of other aspects of the plan.[59]
[58] NDIS Act Division 3, Part 2 to Chapter 3.
[59] Ibid section 33(2).
A participant’s plan must be prepared in accordance with the NDIS Act and regulations made under s 32A of the NDIS Act. It must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act, such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules).

Section 34 of the NDIS Act sets out the mandatory criteria on which the CEO must be satisfied in relation to the funding or provision of each support provided to a participant, to ensure that they are ‘reasonable and necessary’ to assist the person. This must be considered when a statement of participant supports is being developed.
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:
(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 most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The Tribunal has considered the Operational Guidelines published by the NDIA on its website;[60] specifically, those relating to the assessment of whether a requested support meets the “reasonable and necessary supports” criteria under s 34(1) of the NDIS Act and those relating to the ‘Early childhood approach’.
[60] >
The phrase ‘reasonable and necessary’ is not defined in the NDIS Act. In National Disability Insurance Agency v WRMF,[61] the Full Federal Court observed that the phrase ‘connotes supports which meet a threshold which justifies – by reference to the context, objects, and guiding principles of the [NDIS] Act and the facts of the case – the expenditure of public funds for that support, for a particular participant’. Reasonable and necessary is a composite phrase, and each limb of which must be given work to do.[62] In McGarrigle v National Disability Insurance Agency,[63] Mortimer J explained the two limbs in the following terms:
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.
[61] (2020) 276 FCR 415, [151] (WRMF).
[62] Ibid, [149].
[63] (2017) 252 FCR 121, [91] (McGarrigle).
Determination of whether a support meets the reasonable and necessary criterion must be made based on probative evidence.[64]
[64] McGarrigle [93].
Chapter 4 of the NDIS Act deals with the administration of the NDIS, with Part 6 of this chapter providing for the review of decisions. Section 99 of the NDIS Act contains tables of decisions made under the NDIS Act which are reviewable decisions. These include decisions such as a decision to approve the SOPS in a participant’s plan,[65] or a decision to vary a participant’s plan.[66] Of relevance to this matter, Section 99 of the NDIS Act makes no reference to decisions about claims for the reimbursement of funds spent in excess of those specified in budgets within an approved NDIS plan.
[65] NDIS Act section 33(2).
[66] Ibid section 47A(1).
The Tribunal, under the provisions of section 103 of the NDIS Act has the power to undertake a review of reviewable decisions made by an NDIA reviewer under subsection 100(6).
MATERIAL FILED WITH THE TRIBUNAL
PBZB’s parents filed the following documents with the Tribunal:
(a)Autism Partnership Australia NDIS Progress Report, dated 8 July 2021;
(b)Letter from Autism Partnership Australia, dated 9 July 2021;
(c)Autism Partnership Australia Fee Schedule, dated 5 July 2021;
(d)Autism Partnership Fee Schedule Explanatory Notes;
(e)Letter of Support from Professor Tom Connell, dated 23 July 2021;
(f)Letter from Autism Partnership Australia – Reply to the Respondent’s questions, dated 22 September 2021;
(g)Report by Professor Tom Connell (refiled in bundle on 21 November 2022), dated 2 February 2022;
(h)Psychologist Report by Karen McKinnon, Autism Partnership Australia (refiled in bundle on 28 March 2023), dated 3 February 2022;
(i)Bundle of further evidence, filed 21 November 2022;
(j)Psychologist Report by Susan Glencross, Strathmore Kids Psychology (dated November 2022) (refiled 28 March 2023);
(k)Letter from Autism Partnership Australia, dated 14 September 2022;
(l)Speech Pathology Assessment Report by Ana Lopez, Melbourne Speech Pathology Clinic (undated), filed 28 March 2023;
(m)Carer Impact Statement, dated 29 March 2023;
(n)Letter from Professor Tom Connell, dated 29 March 2023;
(o)Letter of Support from Ana Lopez, Melbourne Speech Pathology Clinic, dated 27 March 2023;
(p)Draft Support Plan for PBZB, dated 27 March 2023;
(q)Report prepared by Synergies Economic Consulting, Cost-benefit analysis of intensive early intervention for children with autism, dated February 2023;
(r)Response to report prepared by Dr Michael McDowell, dated 19 April 2022.
PBZB’s parents, in support of the review application filed other AAT decisions for the Tribunal’s consideration:
(a) RQWY and National Disability Insurance Agency [2023] AATA 56 (RQWY);
(b) PYQJ and National Disability Insurance Agency [2023] AATA 37 (PYQJ).
The NDIA, being the Respondent in this matter, lodged the following documents with the Tribunal:
(a)CV of Dr Michael McDowell;
(b)Briefing letter to Dr McDowell, Dated 31 January 2022;
(c)Report of Dr McDowell, dated 28 February 2022;
(d)Report of Professor Michael Sandbank, dated 18 July 2022;
(e)Supplementary report of Dr McDowell, dated 17 April 2023;
(f)National Guideline - For supporting the learning, participation, and well-being of autistic children and their families in Australia, Autism CRC, published in December 2022;
(g)T-Documents (T1 – T22, pp 1 – 167), filed 2 June 2021;
(h)Index to T-Documents (CB 1 – CB 56), filed 8 May 2023;
PBZB called the following witnesses at the hearing:
(a)PBZB’s father;
(b)PBZB’s mother;
(c)Associate Professor Tom Connell (Dr Connell) Consultant Paediatrician and Chief of Medicine, Royal Children’s Hospital Melbourne;
(d)Ms Karen McKinnon (Ms McKinnon) Psychologist & National Clinical Director, Autism Partnership;
The Respondent called the following independent expert to give evidence at the hearing:
(a)Associate Professor Michael McDowell (Dr McDowell) Consultant Paediatrician.
Both parties lodged submissions prior to the hearing as follows:
(a)PBZB Applicant Submission, dated 9 September 2022,[67] (PBZB Applicant Submission);
(b)Respondent’s Statement of Facts, Issues and Contentions, dated 5 October 2022 (Respondent SFIC);
(c)Applicant’s Additional Statement of Facts, Issues and Contentions, dated 29 March 2023 (Applicant Additional SFIC);
(d)Respondent’s Statement of Facts, Issues and Contentions in Reply, dated 21 April 2023 (Respondent Reply SFIC);
(e)Applicant’s Reply to Respondent’s SOFIC in reply, dated 28 April 2023 (Applicant Statement in Reply);
[67] Applicant Submissions dated 9 September 2022, CB 40, 255-269.
Both parties lodged written closing submissions after the hearing as follows:
(a)Respondent’s closing submissions, dated 31 May 2023 (the Respondent’s closing submissions);
(b)Applicant’s closing submission, dated 7 June 2023 (the Applicant’s closing submissions);
On 11 July 2023 the Tribunal received further submissions from the Parties, as follows:
(a)Respondent email;
(b)Applicant email in reply;
(c)Screenshot of email sent 21 March 2023 from email address associated with PBZB’s father to the solicitor from Mills Oakley Lawyers (acting for the Respondent) with Subject title ‘NDIS Case 2021/2584);
THE EVIDENCE
The evidence before the Tribunal in this matter is extensive. It encompasses information about PBZB and his support needs, research on early intervention for children diagnosed with ASD, and information provided by and about Autism Partnership. The Tribunal has reviewed and makes comment about the material insofar as it is relevant to the issues under consideration in the review.
The NDIS Operational Guidelines explain that, as part of their early childhood approach, the NDIA funded the development of the Early Childhood Intervention Australia National Guidelines Best Practice in Early Childhood Intervention (ECIA).[68] The ECIA guidelines support early childhood intervention providers across Australia to apply best-practice approaches to early childhood intervention.[69]
[68] Early Childhood Intervention Australia (ECIA) National Guidelines Best Practice in Early Childhood Intervention, (ECIA)
[69] >
Relevant to this matter, the NDIS Operational Guidelines highlight the following principle from the ECIA guidelines:[70]
[70] Ibid.
Early childhood professionals deliver quality services and supports
Early childhood professionals have qualifications and experience in early childhood development, and offer services based on sound evidence and research.
Best practice recognises that children learn and develop in natural, everyday settings. This includes their own home, and other places, such as childcare, playgroup, or preschool, where they play with family or friends. This means the adults they are with need information, tools, and support to help the child’s development and participation. Being included in these everyday activities gives children with developmental delay or disability the same opportunities as all children. It provides them with opportunities to develop friendships, interact with others and be a part of their community.
Best practice not only considers broad early childhood intervention research, but also evidence relating to the needs of children with a specific diagnosis, such as autism spectrum disorder or cerebral palsy.
The ECIA guidelines emphasise evidence based practice, which are described in the following terms:[71]
Evidence-based practice is a decision-making process that integrates the best available research evidence with family and professional wisdom’ (Buysse and Wesley, 2006). In other words, evidence-based practice involves a balance of empirically supported interventions, clinical expertise or practice wisdom, and client or family values, preferences and circumstances (CCCH, 2014).
To ensure that they are working from a base of evidence informed by the latest research and practice, ECI practitioners should maintain knowledge and skills through lifelong continuing professional development. ECI also requires ongoing review and monitoring to ensure that practices are achieving the desired outcomes.
[71] ECIA, 16 [7]
The ECIA guidelines emphasise engaging children in natural environments and with respect to this factor provide the following information:[72]
Engaging the Child in Natural Environments: promotes children’s inclusion through participation in daily routines, at home, in the community, and in early childhood settings. These natural learning environments contain many opportunities for all children to engage, participate, learn and practise skills, thus strengthening their sense of belonging. ……….Natural environments are settings, where children learn and develop everyday abilities and skills, including the home, community, and early childhood centres. Natural environments are full of opportunities for children to practise, master and expand their skills and learning. Learning skills in a natural environment is more effective than practising a new skill in an isolated setting once or twice a week. Delivering interventions in natural environments involves the people who are part of the children’s lives. Children’s ongoing learning depends upon having repeated opportunities to practise developmentally appropriate skills in everyday situations with support from caregivers and community members. [footnotes omitted]
[72] Ibid, 11 [4]
Evidence about PBZB and his support needs
PBZB’s mother gave evidence at hearing that PBZB was born a healthy baby, but had difficulty with eating and colic from only a few days postpartum. He was under the care of Dr Connell within a few weeks of his birth due to hospital visits associated with these early difficulties.[73] PBZB was delayed in most of his milestones.[74] The initial diagnosis of ASD was made by Dr Robyn Stephens, a speech pathologist at the Royal Children’s Hospital, who they were referred to by Dr Connell in early to mid-2020.[75]
[73] Hearing transcript, 10/03/23 17, [5]–[10].
[74] Ibid [10]–15].
[75] Ibid [30]–[35].
PBZB’s parents explain that they started conducting their own research into where they could get suitable intensive early intervention support for PBZB on the basis of advice received from Dr Robyn Stephens and Dr Connell,[76] who indicated PBZB needed support in relation to speech and that ideally, he receives intensive support. PBZB’s parents were advised that there are different types of support, including ABA, but Dr Connell and staff at the Royal Children’s Hospital did not specifically recommend ABA.[77]
[76] Applicant Submission dated 9 September 2022 CB 40 –3, [19]–[25].
[77] Hearing transcript, 10/03/23 20, [25]–[30].
There is reference in other documents before the Tribunal regarding PBZB’s results from a speech pathology assessment undertaken by Dr Robyn Stevens, principal speech pathologist at Melbourne child development.[78] This report is not a document available to the Tribunal, but it is noted that PBZB is reported to have been assessed by Dr Stevens to have below average language skills (receptive language standard score 88, expressive language standard score 83).[79]
[78] Applicant Submissions dated 9 September 2022 CB 40 1, [2].
[79] Quoted in psychology report of Susan Glencross, Strathmore Kids Psychology, November 2022.
In a letter prepared in September 2020,[80] Dr Connell provides diagnostic information regarding PBZB, indicating his presentation and delays were consistent with PBZB having a diagnosis of ASD as per DSM-V criteria, and opines that his deficits in the areas of verbal and non-verbal communication skills, social impairments, limited initiation of social interactions and reduced responses to social overtures from others; in conjunction with getting upset easily, liking routines and having restricted play activities, would place PBZB in the category for at least level 2 funding requiring substantial support.
[80] Letter of Associate Professor Tom Connell, T10
PBZB’s parents contend that they had difficulty in locating appropriate support for PBZB because of restrictions associated with the COVID-19 pandemic which were impacting Victoria in the late 2020, early 2021 period. They contend that a further factor was that demand for providers offering suitable intensive early intervention therapy exceeds the supply of providers offering suitable programs and services.[81]
[81] Applicant closing submissions dated 7 June 2023, [18].
PBZB was put on waitlist with several providers, including but not limited to Latrobe Autism Research Centre, Irabina Services and Autism Partnership. The decision to settle on Autism Partnership, specifically the Little Learners program, was based on its intensive nature, a space being available in the program and the favourable comments of other parents who had used other ASD support services before enrolling their ASD children with services provided by Autism Partnership.[82] PBZB was enrolled in a one year, 27 hours per week program through Little Learners program, commencing in March 2021.[83]
[82] Ibid [19].
[83] Applicant Submission dated 9 September 2022, CB 40.
PBZB’s parent’s report that they decided to enrol PBZB into the Little Learners program, despite ‘little financial help from NDIS (2 hrs/wk)’ as he needed to undertake comprehensive and sustained therapy. They report that ‘Naturally, we were shocked at the cost of therapy but there were no options. Our understanding was our son’s remedial therapy was urgent so we could not afford to delay. Therefore, we committed to this expensive course of action by selling our house to pay for his therapy, with the expectation that the NDIS would increase our son’s support level and make the financial burden of therapy equitably shared between NDIS and us’.[84]
[84] Carer impact statement dated 29 March 2023, CB 47.
In relation to whether there was any explanation from Autism Partnership for why 27 hours of weekly support was recommended, PBZB’s mother gave evidence at hearing that she and PBZB’s father were told “that’s what the other kids are getting who are in the autism spectrum, and they found that amount actually is helpful”.[85] She cannot recall whether Autism Partnership could accommodate less than the 4 day program for PBZB but can recall that when it was explained that there was either a 4 day or 5 day program, they definitely chose the 4 day program and that it was her understanding it was either 4 days or 5 days, or nothing[86].
Letter of Dr Connell prepared on 23 July 2021
[85] Hearing transcript, 10/03/23, 21, [40]–[45].
[86] Ibid [5]–[15].
In a letter prepared in July 2021,[87] Dr Connell provides the following information and opinions:
[PBZB] is currently participating in Little Learners, a centre-based intervention program which delivers interventions four days per week between 9.15 am and 4:00 pm. This early intensive behaviour intervention (EIBI) is critical for him and it is essential that this continues.
I have liaised with his psychologist Karen McKinnon and his Behaviour consultant Louise Carpenter who have provided a detailed report that highlights the progress he has made but also the clear need for more intensive support, given the way that [PBZB] learns. Prior to attending Little Learners for intensive support, [PBZB] had marked deficits in verbal and non-verbal social communication skills, social impairments, limited initiation of social interactions and reduced responses to social overtures from others. His progress has been excellent within the program.
I believe that with adequate support, it is highly likely that his ongoing support year on year will reduce, but without this early investment it is likely he will have ongoing high needs throughout childhood. The return on this early investment is likely to be significant.
[PBZB] currently receives 96 hours support spread over one year.
I, and his team are advocating for 27 hours per week of EIBI, 12 hours per month of behaviour consultation and 1 hour per week of speech pathology support. From Feb 22, we would advocate for additional hours to support school transition with a reduction in hours in term 2 (from 30 hours term 1 to 15 hours term 2). This request, based on need highlight how inadequate his current support package is. [emphasis in original]
Autism Partnership report dated 8 July 2021
[87] Letter of Associate Professor Tom Connell, Consultant Paediatrician, Chief of Medicine, The Royal Children's Hospital Melbourne, dated 23 July 2021, CB 25.

The report by Karen McKinnon[88] and Louise Carpenter[89] from Autism Partnership[90] referred to by Dr Connor, indicates that it provides information on the services, goals, and achievements of PBZB for the purpose of NDIS planning and goal setting. It states that PBZB started with Autism Partnership, in the Little Learners program on 15 March 2021 and described the Little Learners program as
…a centre-based intervention program which delivers four days per week of intervention, from 9.15am to 4.00pm. PBZB receives 27 hours per week of EIBI, this is primarily delivered in a 1:1 teaching format alongside other peers, with some time each day spent in small groups with a 1 staff: 2 child ratio. Both 1:1 and group time are individualised to meet PBZB’s specific learning goals. PBZB is grouped with a range of peers of a similar age, who are also transitioning to school over the next year and a half. The focus for this group of students is social skills and school readiness skills PBZB’s day is built around 1:1 support in group learning and social situations. The aim of this group is to increase his ability to participate independently at school, with lower amounts of support.
[88] National Clinical Director, Psychologist / Board Certified Behaviour Analyst.
[89] Behaviour Consultant / Board Certified Behaviour Analyst.
[90] Report prepared by Louise Carpenter and Karen McKinnon, Autism Partnership, dated 8 July 2021, CB 28.
In relation to progress towards the achievement of PBZB’s NDIS goals, the report of Louise Carpenter and Karen McKinnon, in summary, notes that to develop his language abilities and increase his general knowledge, PBZB has been learning new language concepts and making progress with his communication skills, such as increasing his ability to appropriately say yes and no, and increasing voice volume slightly. The report notes that in addition to deficits in general knowledge and difficulty with articulation and speech production, PBZB’s ability to communicate with others is most significantly impacted by his very low tolerance to other children and high anxiety around people he is not familiar with. The report states that it is recommended that PBZB have access to continued individualised and intensive intervention to support him and his own personal difficulties with using language and communication skills functionally in his life across different community settings.
In relation to building more skills around his self-care tasks, the report notes that PBZB relies on his parents for a range of self-care tasks such as handwashing, dressing and eating. The Report notes that PBZB has a long history of food refusal, has a limited diet, and displays upset behaviours (crying, refusal, absconding) when it is mealtime. It is noted that PBZB’s parents have been working on toilet training PBZB for a long time. PBZB is able to use a potty and toilet for voids. At home, PBZB will independently go over to the potty or toilet to use it. At Little Learners, PBZB holds on and does not initiate for the toilet unless he is asked to go. PBZB does bowel movements in his underwear and not on the toilet.
The report of Louise Carpenter and Karen McKinnon states that since commencing at Little Learners, PBZB’s independence with eating at the centre has significantly improved and he has acquired the skills to pull up his pants independently. The report states that major barriers to PBZB’s ability to take care of himself and ask to go to the toilet in non-home settings were reported to remain, such as his low assertiveness and reliance on adults for prompting with these tasks. Additionally, PBZB was reported to continue to do his bowel movements in his underwear.
With respect to recognising his emotions and behaviours and expressing how he is feeling to others, the report of Louise Carpenter and Karen McKinnon states that PBZB is familiar with a range of basic emotions, such as happy, sad, angry and that he finds it challenging to report problems or injuries and then to subsequently regulate his body when he is upset or frustrated.
As to PBZB building his level of awareness so he can behave safely when he is at home, out at the park or shopping centres, the report notes that whilst PBZB been learning many of the prerequisites to being safe out at the park or in the community, there is, however, a long way to go to building PBZB’s skills so that he can respond to safety instructions while out in the community, as well as build his understanding of safe behaviours.
With respect to building his social skills and being better at maintaining and building friendships, the report notes that at Little Learners, PBZB has been working on a range of goals to increase his tolerance and ability to cope in the presence of peers, but whilst making some gains has a long way to go to close the gap between him and his same-aged peers in the social domain.
In relation to improving his fine motor skills, the report of Louise Carpenter and Karen McKinnon indicates that PBZB has been working on a range of fine motor goals since starting at Little Learners, such as manipulating his fingers and holding them in different positions, the correct grip when holding a pencil. However that barriers for PBZB involve difficulty with receiving feedback and finding things tricky, and motivation. The report notes that PBZB requires learning to be very systematic, clear and positive in order to acquire skills. PBZB requires multiple opportunities to practice fine motor skills before they are acquired.
The report of Louise Carpenter and Karen McKinnon states that PBZB has made meaningful progress within developmental areas and recommends the following specific supports for PBZB in the period until the end of January 2022:
(a)27 hours per week of Behaviour Therapist Intervention
(b)12 hours per month of Behaviour Consultation to oversee [PBZB]’s goals, and to work in collaboration with any medical or other professionals in [PBZB]’s best interests eg. paediatrician, dietician, etc.
(c)Associated case consultation, assessments and report writing
(d)1 hour per week of Speech and Language Pathology
(e)
Autism Partnership letter dated 9 July 2021
A follow up letter from Autism Partnership[91] dated 9 July 2021, supplies responses to be read alongside PBZB’s Progress Report dated 8 July 2021, which include that:
(a) Ms Susan Glencross (psychologist, Autism Partnership Australia), who wrote the original recommendation letter for [PBZB], but no longer works at Autism Partnership. Louise Carpenter is [PBZB’s] Behaviour Consultant and Keyworker and a progress report has been written by Louise with input from Autism partnership National Clinical Director and Psychologist Karen McKinnon.
(b) Little Learners runs over 50 weeks. It is recommended that [PBZB] participate in Little learners until end January 2022 and then receive some transition support as he enters school in 2022
(c) [PBZB] is currently only participating in the Little Learners ABA program, however, as outlined on page 12 of [PBZB’s] report, it has been recommended that he also receive 1 hour per week of Speech Pathology input due to his delayed communication and language skills. Input and assessment from the Psychologist is part of the Little Learners program and not additional.
Autism Partnership letter dated 22 September 2021
[91] Letter from Autism Partnership, not signed, dated 9 July 2021, CB 27.
Information detailed in the letter prepared by Louise Carpenter and Karen McKinnon from Autism Partnership[92] response to questions raised by the NDIA includes, but is not limited to, detail regarding the weekly schedule of activities PBZB undertakes in the Little Learners program, and how they relate to the goals identified in the Autism Partnership report from July 2021. Further to this information in this letter includes, with respect to the qualifications of the therapists delivering The Little Learners program to PBZB, the Applicant, including the organisation that provides board certification: - Autism Partnership supports Behaviour Consultants to undertake additional study to become a Board Certified Behaviour Analyst, regulated by the Behaviour Analyst Certification Board. Board Certified Behaviour Analysts hold a Master of Education (Applied Behaviour Analysis).[93]
[92] Letter from Louise Carpenter and Karen McKinnon, Autism Partnership, dated 22 September 2021 and filed with the Tribunal on 4 October 2021.
[93] Ibid [1].
With respect to how strategies from the Little Learners program are implemented in PBZB’s naturalistic environment (eg. At home, when accessing the community with family), the letter states that PBZB’s parents participate in fortnightly skill building sessions to build their capacity to support PBZB in the home and community. His parents are provided with strategies to implement, and coaching in how to apply and generalise, new skills across different settings. For example, PBZB’s parents have implemented different prompting strategies for PBZB to undertake self-care tasks such as eating and dressing more regularly at home.[94]
[94] Ibid [3].
The letter does not provide a response as to whether PBZB participated in a lesser amount of hours at the Little Learners program, and if so, were measurable outcomes towards goals achieved.[95] In relation to whether PBZB trialled the Little Learners program prior to full time enrolment, the letter states that ‘Due to [PBZB’s] age at enrolment of Little Learners (five) and large number of deficits it was strongly recommended that early intensive intervention be started as soon as possible in order to make as many gains as possible before school’.[96]
Autism Partnership report dated 3 February 2022
[95] Ibid [7].
[96] Ibid [8].
A psychologist report, providing a standardised developmental assessment, prepared in February 2022 by Karen McKinnon,[97] provides information regarding developmental assessments conducted to determine PBZB’s skills and progress across the preceding 12 months. On the Mullen Scales of Early Learning, a developmental assessment where the child participates in a range of developmental activities, which assesses a child’s skills in four areas: Visual Reception, Fine Motor, Receptive Language, and Expressive Language. Ms McKinnon’s report comments:[98]
[PBZB’s] scores on the MSEL show that he has made clear progress in the past nine months in all developmental areas. He has made 11 months worth of gains in nine months of time in visual-spatial skills, and almost two years worth of progress in nine months in his expressive language skills, effectively closing the gap between his skills and those of typically developing same-aged peers………. These results provide clear evidence that early and intensive intervention has been effective in teaching [PBZB] new skills across the past 12 months, and he will benefit from a focus on extending to more complex receptive and expressive language concepts such as complex reasoning, analogies and vocabulary.
[97] Psychologist Report by Karen McKinnon, Autism Partnership, dated 3 February 2022, CB 31.
[98] Ibid 2.
On the Social Responsiveness Scale (SRS), an educator-report scale that measures the presence and severity of social difficulties, Ms McKinnon’s report comments:[99]
[PBZB] displays moderately to severely impacted socialisation skills across all four areas of the SRS assessment [social awareness, social cognition, social communication and social motivation]. Additionally, he engages in extensive restricted and repetitive behaviours which are a barrier to social participation. Given the complexity of [PBZB]’s social anxiety and ASD presentation, these results indicate the need for extensive intervention on social skills
[99] Ibid 3.
The assessment summary section of the report states:[100]
[PBZB] has shown significant improvements in his development across the past 12 months. [PBZB] will require the continuation of this intensive and structured intervention program in the coming 12 months to achieve these goals, with a focus on social settings along with the generalisation of skills to home and the community.
Autism Partnership letter dated 14 September 2022
[100] Ibid 4.
A letter prepared by Amber Newton[101] and Karen McKinnon from Autism Partnership,[102] details supports provided to PBZB by Autism Partnership from March 2022 until 8 April 2022, and notes that, at the time of PBZB’s exit from the Autism Partnership EIBI service, he continued to display significant areas of need, however he was unable to continue in the EIBI service due to insufficient funds and that, since then, PBZB had participated in a mainstream kindergarten program without any additional disability or therapeutic support. The letter stated that PBZB’s parents reported that PBZB had not made gains towards achieving his goals, and in many ways had begun to regress on his goals. The letter lists areas in which PBZB was reported to have regressed,[103] and recommended that for the remainder of 2022 and until school starts, PBZB be able to access:
(a)Specialised 1:1 support from a behaviour therapist for at least half of his time at kindergarten (at least 17 hours)
(b)Specialised 1:1 support provided by a behaviour therapist to support community access and work on goals within the home for at least 1 day per week (6 hours)
(c)At least 10 hours per month of behaviour consultation to oversee kinder, community and home based support.
[101] Behaviour Consultant / Key worker Board Certified Behaviour Analyst.
[102] Letter from Amber Newton and Karen McKinnon, Autism Partnership, dated 14 September 2022 and filed with the Tribunal on 21 November 2022.
[103] Ibid.
The letter recommended that once school starts in 2023, PBZB be able to access:
(a)Full time support from a behaviour therapist
(b)At least 10 hours of behaviour consultation
PBZB’s parents took the decision to defer his school entry until 2023 after assessment of PBZB indicated that he was not school ready and recommended against him commencing school, as initially planned at the start of the school year in 2022.
Dr Connell letter dated 2 February 2022
In a letter prepared in February 2022, Dr Connell noted that whilst PBZB had made gains over the preceding 12 months, he has significant needs, and without support the negative implications for him in terms of his development, school transition and overall functioning would be significant. Dr Connell notes that PBZB was assessed for school readiness in 2021, and fell far short in terms of speech and socialisation, resulting in the recommendation that transitioning to school be deferred at least one year.[104] Dr Connell opined that the Little Learners program, delivering interventions four days per week between 9.15 am and 4:00 pm, remained very important for PBZB, and that any proposed NDIS Plan would need to include, as a key component, intensive speech and language therapy. In this letter, Dr Connell noted that he and his team have advocated for the level of support for PBZB which was outlined in his letter of 23 July 2021, namely 27 hours per week of EIBI, 12 hours per month of behaviour consultation, and 1 hour per week of speech pathology support.[105]
[104] Letter of Associate Professor Tom Connell, Consultant Paediatrician, Chief of Medicine, The Royal Children's Hospital Melbourne, dated 2 February 2022, CB 30.
[105] Ibid.
PBZB re-commenced kindergarten at the University of Melbourne’s Queensberry Children’s Centre (Queensbury Centre kindergarten) in February 2022, starting with two days a week supported by a therapist from Autism Partnership. His intensive ABA therapy continued until 8 April 2022. With the overall duration of his time receiving intensive therapy through Autism Partnership being 53 weeks.[106]
Carer impact statement dated 29 March 2023
[106] Applicant Submission dated 9 September 2022 CB 40, [8]–[9].
A carer impact statement prepared by PBZB’s parents contends that PBZB was withdrawn from the Little Learners program because it became unaffordable.[107] At hearing, PBZB’s mother gave evidence that whilst the impact on their financial circumstances was a factor, the initial impetus for PBZB ceasing participation in the Little Learners program was that one day, in early 2022 he said he did not want to go to Autism partnership anymore and that in a similar way to what was occurring at that time with respect to his reluctance to go to school, they never really got to the bottom of why he became unwilling to attend the Little Learners program.[108]
[107] Carer impact statement ,CB 47.
[108] Hearing transcript 10/05/23, 23, [25]–[30].
In relation to her observations about any improvements that PBZB made over that period when he was with ‘ABA support’,[109] and then also over that period where he was at the Queensberry Children’s Centre, PBZB’s mother gave evidence at hearing that whilst he could express himself verbally in a limited way at home, PBZB did not speak for the initial 6 months he was attending the Little Learners program but then when watching him through a video call she observed that he was talking. PBZB’s mother also noted that PBZB’s toleration of being around other children improved, as well the way in which he held a pencil.[110]
[109] The Tribunal has taken the reference to ‘ABA support to refer to the Little Learners program.
[110] Hearing transcript 10/05/23, 23, [35]–[45]; 24, [5]–[15].
PBZB’s parents contend that progress made by PBZB, whilst receiving EIBI through Autism Partnership, was not sustainable once the support he was receiving from the Autism Partnership Therapist at Queensbury Centre kindergarten ceased. They contend that PBZB has displayed regression in the areas of communication and socialization.[111] PBZB’s mother gave evidence at hearing that he is isolated from other children, has stopped talking at school and is also not going to the toilet whilst at school.[112]
[111] Applicant Submission dated 9 September 2022, CB 40, [11].
[112] Hearing transcript 10/05/23, 26, [20]–[30].
PBZB’s mother gave evidence that PBZB benefitted from the 1:1 support from the Autism partnership support worker during his transition to kindergarten from the Little Learners program,[113] and then, from 1:1 support from an experienced kindergarten educator, who when she could, given the needs of other children, would place PBZB on her lap and encourage him to participate.[114] PBZB’s mother gave evidence that unfortunately PBZB doesn’t have that 1:1 support at school.[115]
Report of Dr McDowell dated 28 February 2022
[113] Ibid [5]–[10].
[114] Ibid 24, [15]–[30].
[115] Ibid26, [40].
In his report of 28 February 2022, Dr McDowell states in relation to PBZB that he agrees with the ASD diagnosis and associated severity level, noting that, in his view, impaired social comprehension and social skills are the central problem for PBZB. Dr McDowell opines that Global Developmental Delay (GDD) was a reasonable description of PBZB’s development mid 2020 according to the assessments undertaken at that time, but that he did not necessarily agree with GDD as an accurate diagnosis (as at February 2022], suggesting that PBZB’s development up to that time may have been delayed due to his lack of participation (social anxiety) as well as his underlying disorder.[116]
[116] Report prepared for a proceeding in the AAT by Associate Professor McDowell, 28 February 2022, [4.1 – 4.2], CB 43.
In relation to what appropriate, evidence-based treatment options are available for PBZB, Dr McDowell opined:[117]
[117] Ibid [4.4.1]–[4.4.5].
4.4.1    I am not aware of additional services that could be considered available for [PBZB] with regards to proximity and feasibility. They [PBZB’s parents] described significant difficulty finding services they could work with, so my answer to this question is based on treatment options which may not be accessible in practice. With this caveat, I propose a set of considerations which, collectively, I would consider an appropriate
and evidence based approach to capacity building for [PBZB].
4.4.2 Behaviourism
4.4.2.1            Behaviourism is the guided, incentivised repetition of necessary skills. In this manner, [PBZB] learns through habituation and association (e.g. between the urge to urinate and the intended competencies that can be defined in behavioural terms (e.g.
dressing, expressive language skills), and for which deeper understanding is not intrinsically necessary.
4.4.2.2            I note that behaviourism is not dependent on the child understanding purpose for the intended goal. It uses motivational methodologies commonly unrelated to purpose
(e.g. token rewards systems) and not necessarily responsive to the child’s innate developmental motivation and passions.
4.4.2.3 In my opinion, the preferred methodology of providing behaviourist intervention is in the most naturalistic (location, context and providers) setting possible. This avoids the problem of generalisation, which is the transfer of skills acquired in one setting to an alternative setting where they are used in day to day life. It also ‘upskills’ those in the child’s local environment.
4.4.3 Relationship development
4.4.3.1 I observed a child who is able to form meaningful relationships with those he feels safe with and cares for. In my opinion, relationship-based intervention is the best way to address the core deficits of ASD, which centre around the intuitive understanding of people.
4.4.3.2 Rather than learning skills through repetition and paired associations, relationship based learning is built around meaning and purpose in the context of relationship – e.g.
learning when the other person is upset, or how to communicate with them that you are upset.
4.4.4 Medical
4.4.4.1            In general terms, medical intervention I consider appropriate (1) when aspects of the child’s development interfere with progress, (2) when these aspects are not easily remediable through non-medical strategy, and (3) these aspects are potentially and beneficially modifiable with medical treatment.
As a medical example, asthma is treated with medication when it interferes with the child’s life, when it is not adequately managed non-medically (e.g. removing dust mite) and it is
responsive to medication without undue side effects.
4.4.4.2 I mention medical intervention particularly because social anxiety is likely to meet these criteria for [PBZB]. Much of the ABA therapy described was to habituate and desensitise in order to lower his level of social anxiety and enable functional
behaviours). This is a reasonable approach to building relationships. As I understand the process, this remains only partially successful. His anxiety remains a significant limitation to expected success of school placement. Time and energy spent on this quest is time and energy not available for other purposes. It is also important to remember that recurrent experiences of anxiety are unpleasant for the child.
4.4.4.3 I consider also that [PBZB]’s Executive Function may be a reasonable consideration for medical intervention (a form of ADHD). The information provided, particularly in conversation, suggests that [PBZB] has difficulty with planning, remembering and undertaking multi-step activities, to the extent that this hinders his capacity to benefit from intervention.
4.4.5 Coordination of supports
4.4.5.1 My final recommendation would be to have a formal process of oversight where all aspects of his care can be considered and prioritised. In my opinion, this is preferentially undertaken by somebody who does not have the unavoidable conflict of interest that comes with also providing the funded services recommended. This role could be undertaken by a Developmental Paediatrician, Developmental Psychologist, Occupational Therapist or even an experienced Special Educator who understands early intervention.
Psychology report prepared by Ms Susan Glencross in November 2022

In considering the evidence before the Tribunal, including that of Dr McDowell and Dr Sandbank, I am not persuaded that the most robust, recent, reliable research shows that intervention at an intensity in excess of 15 hours per week is likely to achieve increased positive outcomes for an ASD child than intervention programs of between 5 and 15 hours intensity. In forming this view, I acknowledge the evidence of Dr Connell and that of PBZB’s parents that he benefitted from his participation in the 4-day Little Learners program, which provided an intervention intensity of 27 hours per week. I conclude from this that the intensity of intervention did not, in PBZB’s case, and as the CRC Supporting Autistic Children Guideline – 2022[274] warn can sometimes occur, have an adverse impact on PBZB. Rather, I am satisfied that there is reliable evidence to show that the 27 hour intervention intensity is not likely to have had more positive impact for PBZB than an intervention intensity of 15 hours.
[274] National Guideline - For supporting the learning, participation, and well-being of autistic children and their families in Australia, Autism CRC, published in December 2022.
For these reasons, with respect to the Little Learners program I am not satisfied the program is value for money and as a consequence the Tribunal finds that the requirements of s 34(1)(c) is not satisfied.
I am also not satisfied that the Little Learners program 4 day option, which provided PBZB with a 27 hours per week intervention intensity, is evidence-based having regard to current research literature and the expert opinion the Tribunal has preferred with respect to this factor. I am therefore not satisfied that the Little Learners program would be, or would likely to be, effective and beneficial for PBZB, or that it represents current good practice. Accordingly, in respect of the Little Learners program, section 34(1)(d) of the NDIS Act is not satisfied. Therefore, because the criteria in section 34(1) are cumulative, it is not necessary for the Tribunal to consider whether the further mandatory criteria under sections 34(1)(e) or s34(1)(f) of the NDIS Act are met.
The Tribunal does however accept that the cumulative evidence available to the Tribunal in this matter establishes that early childhood support, including that within an ABA framework, at a reduced intensity would be, or would likely be beneficial to PBZB at an intensity level of between 5 and 15 hours per week. In the particular circumstances of this matter, I find an intervention intensity level of 14 hours per week Early Intensive Behaviour Intervention, 50 weeks per year, Level 2 therapy assistance and 1 hour a week, 50 weeks per year, for therapy program supervision for PBZB for the period encompassing the approval of the SOPS associated with his October 2020 NDIS plan, namely 30 October 2020, until the date of his commencement of school in 2023 satisfy the criterion in s 34(1)(c) and s 34(1)(d).
School age supports for PBZB
In the Psychology report prepared by Ms Susan Glencross, educational and developmental psychologist, in November 2022 she states that PBZB will benefit from ongoing access to specialist early intervention, with the aim of optimising his learning and development during his transition to school. This includes regular: speech therapy to develop PBZB’s social communication; occupational therapy to develop PBZB’s coordination and self-care skills; and psychology to support transition to school and PBZB’s emotional well-being given his age. Ms Glencross recommended that PBZB be regularly reviewed by his paediatrician to monitor his health, growth and development and that a cognitive assessment be readministered when PBZB is in grade 1 or 2 to continue to monitor his learning and cognitive development. Ms Glencross recommended that the frequency and intensity of these therapies should be recommended by PBZB’s treating professionals.[275]
[275] Psychology report prepared by Ms Susan Glencross, educational and developmental psychologist, dated November 2022 and refiled 28 March 2023..
Ms Glencross did not appear at hearing as a witness, and whilst I acknowledge there was, as a consequence, no opportunity to test her evidence, and that she has, in the past, been an employee of Autism Partnership, I do not consider the information referred to in the preceding paragraph to be diminished by either of these factors. I am satisfied Ms Glencross’ assessment of PBZB’s support needs moving forward are to be made on the basis of her professional assessment and that they can be given positive weight by the Tribunal.
Speech therapy support
With respect to PBZB’s ongoing need for speech therapy, the speech pathologist assessment he underwent in January 2023[276] noted that PBZB ‘is willing to communicate and is able to competently express his wants and needs, however his comprehension difficulties may particularly impact his ability to actively participate and keep up with his peers as he enters school. Specific areas of trouble include following directions, answering questions, and understanding narratives’. Regular and continuous language therapy, targeting areas of difficulty identified was recommended in this assessment. A supplementary letter from Ms Lopez, PBZB’s speech pathologist, noted that PBZB had become non-verbal during therapy sessions, at school and other social settings and recommended he receive ‘2 hours of speech pathology support at home and 1 hour in clinic per week for 40 weeks out of the year’.[277]
[276] Speech pathology assessment conducted in January 2023 at the Melbourne Speech Pathology Clinic by students under the supervision of Ana Lopez, senior speech pathologist and clinical educator, CB 46.
[277] Letter from Ms Anna Lopez, speech pathologist, dated 27 March 2023.
I am not persuaded that the assessment of the relevant specialist in the field of speech pathology is to be disregarded purely on the basis that she did not appear as a witness at hearing, and therefore her evidence was not able to be tested. Whilst I acknowledge the systemic dilemma referred to by Dr McDowell and summarised by the NDIA, arising from a service provider ‘recommending increased funding for support to be provided by her’,[278] I do not perceive the conflict of interest which arises in this situation to be unmanageable in all situations. Ms Lopez is described as a senior speech pathologist and clinical educator, and there is no evidence before the Tribunal to suggest this is not the case. In lieu of clear evidence to the contrary, I am not persuaded she would provide anything other than a clinical recommendation regarding PBZB’s need for speech therapy based on her assessment of his support needs.
[278] Respondent closing submissions [59].
As noted by the NDIA[279] in a letter prepared in March 2023, Dr Connell supports speech therapy at an intensity of 3 hours per week,[280] but at hearing, qualified this view, indicating he had opined to PBZB’s father that a reduced intensity of 2 hours per week may be more appropriate for PBZB.[281] The Tribunal does not share the NDIA’s view that Dr Connell ‘simply concurred with the recommendation from Ms Ana Lopez’ in supporting the initial request for 3 hours per week speech therapy. This is because I am satisfied that Dr Connell, as a highly qualified paediatrician who has treated PBZB throughout his young life, would only make recommendations as to PBZB’s support needs with the benefit of this clinical experience. In qualifying his recommendations in relation to speech therapy or other supports, I am of the view that Dr Connell has brought to bear his understanding of the availability, or lack thereof, of allied health support services in Victoria, and also of the risk of adverse consequences of overloading PBZB with the cumulative supports which may be engaged for PBZB.
[279] Respondent closing submissions [58].
[280] Letter from Dr Connell dated 29 March 2023.
[281] Hearing transcript 10/5/23= 41, [1]–[4].
The Tribunal is mindful of Dr McDowell’s opinion that speech therapy support at a lower intensity of 1 hour per month is appropriate,[282] but also recounts that, at hearing, Dr McDowell conceded that there would be more frequent support required initially for supports — such as psychology or speech therapy — and that the recommendation of monthly consultations would be appropriate only after this initial phase. Discussing the example of intervention to assist PBZB develop more effective, self-soothing and self-regulation capacities, Dr McDowell gave evidence at hearing:[283]
‘so there’s an initial set-up phase that kind of experimentally gets him to the point where he can drop his central nervous system arousal enough to actually participate in learning and other school activities and the monthly basically is after that’.
[282] Dr McDowell supplementary report dated 17 April 2023 CB 45, [4.1]
[283] Hearing transcript 11/5/23 60, [25]-[30].
In my view, the position of PBZB with respect to speech therapy support moving forward reflects a reasonable and necessary support. I am not persuaded by the NDIA’s contention that occupational therapy at the intensity of 1 hour per week would adequately respond to PBZB’s current circumstances and support needs. I consider PBZB’s request for 2 hours per week speech therapy support over an initial 6 month period, tapering to 1 hour per week for a further 6 months to be an intervention intensity to be both value for money and likely to be effective and beneficial.
In forming this view, I note Dr McDowell refers to the benefit of ‘building the competency of parents and teachers with a focus on managing school and building social skills’.[284] I am satisfied that making adequate provision for speech therapy support in the naturalistic setting of home and school for an initial period, as indicated in the particular circumstances of this matter, is effective and beneficial. I am not persuaded the clinical input from a speech pathologist at the intensity requested by PBZB in their closing submissions is inconsistent with a ‘train the trainer’ approach, or that it ‘fails to take into consideration what is reasonable to expect family, carers, informal networks and the community to provide’.[285] Indeed in my view it may be unrealistic and unreasonable to expect ‘family, carers, informal networks and the community’ to acquire the knowledge and techniques to support PBZB improve his language skills without the input of trained professionals at the requested intervention intensity. I do not perceive speech therapy support at the intensity level requested by PBZB to be inconsistent with input from informal supports — including family and school — or that it seeks to replace such informal support, or make it unnecessary.
[284] Supplementary Report of Dr McDowell dated 17 April 2023 4, [4.3.1.3].
[285] Respondent closing submissions [62].
Psychology support
Dr Connell’s evidence at hearing, with respect to psychological support for PBZB, was as follows:[286]
Psychology, I think would be really good if he could see somebody – we did say initially two hours per week. That’s probably not going to be achievable within Victoria, but I would think we should aim for a psychology support for PBZB to get comfortable with somebody. And I would say weekly. Two weekly – two weekly might be good in that setting.
[286] Hearing transcript 10/05/23, 41, [6]–[11].
In further discussion regarding the frequency, or what may be termed the intervention intensity of psychology support, Dr Connell opined that:
… So psychology, if I could get – if we could get a consistent psychologist in for him, [Member Barker], for up to two weekly to monthly, I would be comfortable with that in terms of I believe that would impact positively on him in terms of – and also giving the family the extra, some extra strategies that they can do … But it’s – I would see this as a sort of a – I would go a minimum of once per month for me, and then I would probably – if I could get once a fortnight, and then transition down over time. That would be what I would say.
At hearing, Dr McDowell acknowledged that there are at least two competing models for working therapeutically with children: one where the therapist is the ‘expert’, and the other, the ‘train the trainer approach’, where, whilst the therapist has ‘professional expertise’, the parents are the expert when it comes to their child. The latter approach, of which Dr McDowell concedes he is an advocate, places the parent, or other caregiver, in the centre, and aims to build up their capacity to know and be responsive to their child. A process that Dr McDowell referred to at the hearing as ‘upskill the parents’.[287]
[287] Hearing transcript 11/5/23 59, [10]–[40].
Dr McDowell’s opinion, provided at hearing, regarding the role of psychological support, is that it is the most extreme example of where an approach focused on empowering parents in a naturalistic setting is likely to be more effective and preferable than a situation where a child could go and sit down 1 on 1 with a psychologist in their rooms.[288]
[288] Ibid58, [5]–[20].
In my view, Dr McDowell gave plausible examples of the knowledge and skills that parents, and other carers would need to acquire so as to self-regulate more effectively, and create a therapeutic environment that will ultimately assist in a child’s growth and development, such as: ‘This is how to manage him when he’s getting escalated. This is what to say to him. You know, this is what to avoid. This is what to teach’. Dr McDowell opined that the expectation that a child, such as PBZB, aged seven and with weak language, would, in that traditional counselling context, learn about emotional regulation and how to self-detect when they’re at higher states of arousal, and how to self-settle, is ‘slightly professionally absurd’.[289]
[289] Ibid.
In discussion of the role of psychological support within his recommended ‘train-the- trainer’ approach in assisting PBZB with the anxiety impacting him, as well as the other self-capacities he would benefit from developing, Dr McDowell acknowledged an intervention intensity of more than monthly consultations would be appropriate initially, with the intervention intensity tapering off when clinically appropriate.[290]
[290] Ibid11/5/23 60, [5]–[30].
The NDIA contends that there is very little meaningful difference between Dr Connell and Dr McDowell’s evidence on this point. Both gave evidence that there needed to be more intensive supports initially, and then a tapering down of supports after that. Both experts considered that the initial set-up phase would require more intensive support than monthly contact with a psychologist. Dr Connell thought there would be difficulties in getting two hours of support per week, but thought weekly or fortnightly would be appropriate.[291]
[291] Respondent closing submissions [69].
Whereas PBZB has requested psychological support at an intervention intensity of 2 hours per week for an initial six month period, tapering to 1 hour per week in the following 6 months,[292] the NDIA’s position is that taking the evidence as a whole, a reasonable and necessary level of support is 1 hour per fortnight.[293] In my view, neither proposal is adequate; PBZB’s request runs the risk of overloading PBZB with intervention, and the NDIA’s alternative does not reflect the benefit of a more intensive initial intervention which subsequently tapers. In light of this, the level of psychology support which the Tribunal considers to be both value for money and effective and beneficial is 1 hour per week for an initial 6 month period, tapering to 1 hour per fortnight in the following six month period.
[292] Applicant closing submissions [67].
[293] Respondent closing submissions [70].
Occupational therapy support
Ms Glencross recommended occupational therapy to develop PBZB’s coordination and self-care skills. I am satisfied this sort of support is consistent with PBZB’s identified NDIS goals.[294]
[294] Psychology report prepared by Ms Susan Glencross, educational and developmental psychologist, dated November 2022 and refiled 28 March 2023.
The NDIA concedes the occupational therapy support requested by PBZB’s parents is a reasonable and necessary support and proposes that an appropriate intervention intensity is 1 hour per fortnight moving forward.[295] Alternatively, PBZB requests the intervention intensity for occupational therapy support reflect the tapering approach request for other supports moving forward, and that PBZB be funded for 1 hour per week for an initial 6 month period, tapering to 1 hour per fortnight in the following six month period.[296]
[295] Respondent closing submissions [73].
[296] Applicant closing submissions [67].
The NDIA notes Dr McDowell’s report opined that “weekly therapy may be unnecessarily frequent as therapeutic progress is achieved slowly through practice and repetition, with the corrective guidance of a professional on a less regular basis”.[297] However, he did concede, in the course of his evidence, in the context of occupational support being provided with a ‘train-the-trainer’ focus, that there would need to be an initial set-up phase.[298]
[297] Dr McDowell supplementary report dated 17 April 2023 CB 45, [4.3.2.4].
[298] Hearing transcript 11/5/23 41, [4].
In discussion at hearing of Dr McDowell’s stated preference for the ‘train the trainer’ intervention model in the context of occupational therapy support, Dr Connell opined that he thought it was a ‘very simplistic view’ in terms of what is ‘available, is doable, in a train the trainer model’.[299] Dr Connell’s evidence at hearing emphasised that occupational therapy (OT) ‘is about function. It’s about fine motor control, sensory inputs. And those things can be passed over to the school. Not necessarily a train the trainer, but it’s more about sort of giving the capability for, ultimately, [PBZB’s parents] to replicate what the OT’s doing so that they can maintain those gains’.[300]
[299] Hearing transcript10/5/23 39, [10]–[20].
[300] Ibid , [20-25].
In my view, whilst there is apparent difference in the type of intervention model endorsed by Dr Connell and Dr McDowell, their positions with respect to the goals of occupational therapy support are, as noted by the NDIA,[301] similar in that the skilling up of PBZB’s parents to replicate the techniques used and modelled by the occupational therapist is the desired outcome from the provision of this type of intervention support.
[301] Respondent closing submissions [73].
In my view, the apparent distance between the expert opinions provided by these experienced paediatricians with respect to this and possibly other factors in relation to intervention with ASD children may be, at least in part, due to the individual meaning put to terms such as ‘train-the-trainer’, ‘naturalistic’, or ‘empowerment’ where there is no mechanism to clarify what is specifically meant by the other clinician.
In his evidence at hearing Dr Connell did, as noted by the NDIA,[302] mention that PBZB would be tired at school, but nonetheless opined that PBZB will ‘need extra supports outside of school to ensure he continues to make the gains’.[303] With respect to the intervention intensity of occupational therapy support, Dr Connell indicated that he wanted to see PBZB have access to weekly occupational therapy support moving forward ‘at least initially, and then you can taper that out’.[304]
[302] Ibid.
[303] Hearing transcript 10/5/23 39, [30]–[35].
[304] Ibid41, [5]–[10].
In light of the similarity arising from Dr McDowell’s concession that there is a benefit to an initial setting up phase with subsequent tapering, and the recommendation of the clinician actually being involved in PBZB’s ongoing care, I am of the view that the intervention intensity for occupational therapy support requested by PBZB reflects a reasonable and necessary support that is value for money and likely to be effective and beneficial.

The Tribunal therefore finds occupational therapy support at the intervention intensity of 1 hour per week for an initial 6 month period, tapering to 1 hour per fortnight in the following six month period, is appropriate for PBZB moving forward.
Consultation with school
In their closing submissions, the NDIA notes that when discussing the Applicant’s adjustment to school, Dr McDowell gave evidence at hearing that he would not be surprised if PBZB was shutting down to a significant degree. Dr McDowell acknowledged that there ‘would need to be a body of work, working with all of the people to understand his triggers for that. What it’s like for him. What causes him to diminish and all of that sort of stuff’.[305] The Tribunal notes that there is evidence of PBZB experiencing increased anxiety and a degree of regression in his language and socialisation capacities since commencing school, which supports Dr McDowell’s speculation with regard to the challenge PBZB faces in transitioning to school.[306]
[305] Hearing transcript 11/5/23 40, [15]–[25].
[306] See Letter from Associate Professor Tom Connell, dated 29 March 2023 CB 51.
In line with Dr McDowell’s discussion of this factor at hearing, the NDIA proposes a reasonable and necessary support for PBZB moving forward is funding for 10 hours for consultation at the school, with the teachers or teachers’ aides to implement strategies to assist the Applicant. The NDIA suggests that the 10 hours could be used flexibly amongst the speech pathologist, occupational therapist, and psychologist.[307] By way of response, given a provision for school consultation had not previously been requested, PBZB requests 18 hours, allowing for 2 hours per month over the school year.[308]
[307] Respondent closing submissions [54].
[308] Applicant closing submissions, [67].
With respect to a provision for consultation between health professionals, such as a speech pathologist, occupational therapist, or psychologist and staff at the school PBZB is attending, I am satisfied that this is a reasonable and necessary support that is likely to be effective and beneficial. As to the intervention intensity for this type of support that would be value for money, I have preferred the intensity proposed by PBZB, namely 18 hours, allowing for 2 hours per month over a school year. In forming this view I have taken the position that 2 hours per month is not an excessive amount of school consultation time and out of concern that any less time may constrain the extent of interdisciplinary consultation with the school that may be optimal for PBZB.
Dietician
The Tribunal notes that there is common ground between the parties that dietitian support at an intervention intensity of 4 hours is a reasonable and necessary support for PBZB, and the Tribunal accepts this recommendation.
Motor skills socialisation activity
A recommendation from the psychology assessment of Ms Glencross in November 2022 was that PBZB would benefit from specialist 1:1 swimming lessons.[309] PBZB has previously sought provision for 30 hours of support for swimming lessons and also to assist PBZB’s dexterity with keyboard skills.[310] The NDIA maintains that this is not related to the applicant’s disability and relates to day-to-day living costs that are not attributable to his particular disability support needs.[311]
[309] Psychology report prepared by Ms Susan Glencross, educational and developmental psychologist, (dated November 2022) (refiled 28 March 2023).
[310] Applicant’s Reply to Respondent’s SOFIC in reply, dated 28 April 2023 [19]-[20].
[311] See, rule 5.1 of the Support Rules.
The Tribunal notes that PBZB has not pressed this support request in their closing submissions, and the Tribunal is satisfied the evidence before it does not establish the swimming lessons and keyboard lessons are a reasonable and necessary support.
Conclusion on school age supports
For the reasons discussed above, the Tribunal is satisfied the following supports for PBZB, pertaining to the period since he commenced school in 2023, satisfy the criterion in s 34(1)(c) and s 34(1)(d):
(a)Speech therapy – 2 hours per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per week for a further period to end on the Reassessment Date, plus 4 hours of report writing per year;
(b)Psychology - 1 hour per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per fortnight for a further period to end on the Reassessment Date, plus 8 hours per annum to fund a standardised assessment by a psychologist
(c)Occupational therapy - 1 hour per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per fortnight for a further period to end on the Reassessment Date, plus 4 hours of report writing per year;
(d)School consultation – 18 hours per annum;
(e)Dietician – 4 hours per annum;
Section 34(1)(e) - the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks, and community to provide
Section 34(1)(e) of the NDIS Act requires that the funding or provision of the support takes into account what it is reasonable to expect families, carers, informal networks, and the community to provide. Given PBZB is a child participant, Rule 3.4(a) of the Support Rules also provides that the CEO is to consider that:
(a) it is normal for parents to provide substantial care and support for children; and
(b)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
(c) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(d) 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.
Under Rule 3.4(c) of the Support Rules, the CEO (and the Tribunal upon review) must consider the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
The Tribunal has found that the requested supports for the full costs associated with the 27 hour per week 4 day Little Learners program do not satisfy ss 34(1)(c) and (d) of the NDIS Act, and so it is unnecessary for it to progress to a consideration as to whether s 34(1)(e) is met in respect of those requested supports.
The Tribunal will consider whether the supports for PBZB it does consider meet the requirements of 34(c) and s 34(1)(d), namely: (i) 14 hours per week Early Intensive Behaviour Intervention, 50 weeks per year, at Therapy Assistant Level 2 weekday for the period 30 October 2020, until the date of his commencement of school in 2023; (ii) 1 hour a week, 50 weeks per year, for therapy program supervision for the period 30 October 2020, until the date of his commencement of school in 2023; (iii) Speech therapy – 2 hours per week for an initial 6 month period, 1 hour per week for a further 6 month period; (iv) Psychology - 1 hour per week for an initial 6 month period, 1 hour per fortnight in the following six month period; (v) Occupational therapy - 1 hour per week for an initial 6 month period, 1 hour per fortnight in the following six month period; (vi) School consultation – 18 hours per annum; (vii) Dietician – 4 hours per annum; (viii) 8 hours per annum for the preparation of NDIS progress report(s) by a speech pathologist and occupational therapist; and (ix) 8 hours per annum to fund a standardised assessment by a psychologist, These supports, which the Tribunal will subsequently refer to collectively as the Alternative Supports, have been considered against the matters referred to in s 31(1)(e). The Tribunal considers that the Alternative Supports do take those matters into account and that this criterion is met.
I am satisfied that the cumulative evidence before the Tribunal established that PBZB’s support needs are substantially greater than those of a child of the same age. Further to this, I am satisfied PBZB’s parents provide substantial care and support to PBZB and that they are devoted to his welfare and best interests. In the particular circumstances of this case, PBZB’s father has retired from the paid workforce in order to support PBZB. He is not a young man, and I would be concerned that without the funding for Alternative Supports being approved, PBZB’s father’s health may suffer. I am also satisfied that funding for, or the provision of, the Alternative Supports will likely improve PBZB’s capacity to achieve his identified NDIS goals, objectives and aspirations.
For these reasons, the Tribunal is satisfied that s 34(1)(e) of the NDIS Act is met in respect of the Alternative Supports.
Section 34(1)(f) - the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through another system or service as described in this provision
Whilst the Tribunal has found the Little Learners program does not satisfy s 34(1)(c) or 34(1)(d), the Tribunal has not determined that ABA based early intervention support for children with ASD is in and of itself an inappropriate intervention type. The Tribunal regards ABA therapy to fall within the category of early childhood support for children with ASD, and accordingly, would not preclude the potential benefit of this type of support being provided to PBZB. However, this support would need to be provided at a reduced intensity than that provided in the Little Learners program, through Level 2 therapy assistance, with the added provision of therapy program supervision. I am satisfied this support is consistent with rules 7.8 and 7.9 of the Support Rules, in that they are associated with the functional impact of PBZB’s disability and additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
As to the component of the Alternative Supports applicable to PBZB since he commenced school in 2023, I am satisfied this support is consistent with rules 7.13 and 7.14 of the Support Rules, in that they are specific to PBZB’s functional impairment on his activities of daily living and not those primarily relating to education or training attainment.
The Tribunal has found that the requested funding for the costs associated with the Little Learners program do not satisfy ss 34(1)(c) and (d) of the NDIS Act, and so it is unnecessary for it to progress to a consideration as to whether s 34(1)(f) is met in respect of costs associated with the Little Learners program. The Tribunal is however, satisfied that the Alternative Supports meet the requirements of s 34(1)(f) of the NDIS Act.
CONCLUSION
The Tribunal concludes that the Alternative Supports meet all of the mandatory criteria under s 34(1) of the NDIS Act and are “reasonable and necessary supports” that should be funded under the NDIS.
Accordingly, the Tribunal sets aside the Decision Under Review and remits this matter to the NDIA with a direction that, within 14 days of the date of this Decision, the NDIA is to facilitate the approval of a new SOPS for PBZB (New SOPS) which includes the following provisions:
(a)a provision specifying that the reassessment date will fall on the 12-month anniversary of the date of approval of the New SOPS (Reassessment Date);
(b)provisions approving funding for:
i.14 hours per week Early Intensive Behaviour Intervention, 50 weeks per year, at Therapy Assistant Level 2 weekday rate for the period 30 October 2020, until the date of his commencement of school in 2023;
ii.1 hour a week for therapy program supervision, 50 weeks per year, for the period 30 October 2020, until the date of his commencement of school in 2023;
iii.speech therapy – 2 hours per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per week for a further period to end on the Reassessment Date, plus 4 hours of report writing per year;
iv.psychology - 1 hour per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per fortnight for a further period to end on the Reassessment Date, plus 8 hours per annum to fund a standardised assessment by a psychologist;
v.occupational therapy - 1 hour per week for an initial 6 month period commencing on the date PBZB commenced school in 2023, then 1 hour per fortnight for a further period to end on the Reassessment Date, plus 4 hours of report writing per year;
vi.School consultation – 18 hours per annum;
vii.Dietician – 4 hours per annum;
viii.8 hours per annum for the preparation of NDIS progress report(s) by a speech pathologist and occupational therapist;
ix.8 hours per annum to fund a standardised assessment by a psychologist;
x.replication (on a pro-rata basis) of all other existing supports in PBZB’s current SOPS (except for any one-off funding which has already been expended or any funding for supports to be replaced by the supports referred to in paragraph 1(b) above); and
(c)provision(s) specifying that the plan is to be managed as presently specified in PBZB’s current SOPS.

I certify that the preceding three hundred and five (305) paragraphs are a true copy of the reasons for the decision herein of Member D. Barker

....................................[SGD]....................................
Associate
Dated: 20 October 2023

Date(s) of hearing: 10, 11 and 12 May 2023

Date final submissions received: 7 June 2023

Advocate for the Applicant: PBZB's Father, Non-Legal Advocate

Counsel for the Respondent: Mr J Barrington

Solicitors for the Respondent: Mr A Tran, Mills Oakley Lawyers

Date(s) of hearing:	10, 11 and 12 May 2023
Date final submissions received:	7 June 2023
Advocate for the Applicant:	PBZB's Father, Non-Legal Advocate
Counsel for the Respondent:	Mr J Barrington
Solicitors for the Respondent:	Mr A Tran, Mills Oakley Lawyers