PMCP and National Disability Insurance Agency

PMCP and National Disability Insurance Agency [2022] AATA 1062 (4 April 2022)
AppID:PMCP and National Disability Insurance Agency
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2019/7469
Re:PMCP
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Senior Member Buxton
Date:4 April 2022
Place:Brisbane

The decision under review is set aside and in substitution, approves a statement of participant supports for the Applicant that includes funding for:
a)Support Co-ordination of 60 hours per year (in total);
b)20 hours per year of feeding therapy and dietetic support including report writing. ($3,990 per year); and
c)Percussion class gap funding ($600 per year);

and otherwise specifies the reasonable and necessary supports and other aspects of the statement of participant supports as set out in the decision under review (as varied on 7 February 2022).
.................[SGD].............................
Senior Member Buxton
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 42D
National Disability Insurance Scheme Act 2013 (Cth) ss 31, 33, 34, 35, 100, 209
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rules 3.4, 5.1
Cases
BIJD and National Disability Insurance Agency [2018] AATA 2971
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McGarrigle v NDIA (2017) 252 FCR 121
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
REASONS FOR DECISION
Senior Member Buxton
4 April 2022

The Applicant, a nine-year old boy who lives in the care of his mother, seeks review of a decision made by a delegate of the Chief Executive Officer (‘CEO’) of the Respondent on 11 November 2019 pursuant to section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’). He has been assisted by his mother in all aspects of his application. A hearing of the review application was conducted by the Tribunal on 17 February 2022 by video-link using an electronic platform. Written submissions were provided by both parties after the hearing.
The Applicant is a participant in the National Disability Insurance Scheme (‘NDIS’) and has diagnoses of autism spectrum disorder (‘ASD’) and anxiety.[1] He also has in-toeing due to a twist in his shin bones (tibial rotation).[2] Since he entered the NDIS his ASD has been re-assessed as level 2 severity and the Applicant has also been diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder, auditory and sensory processing disorders and ventral septal defect.[3] In addition, the Applicant has dyslexia,[4] encopresis[5] and has been diagnosed with sever behaviour disorder,[6] developmental co-ordination disorder[7] and sleep initiation disorder[8].
[1]     Exhibit 1, T-documents, T3.
[2]     Ibid, T3K.
[3]     Ibid, T4; Exhibit 2, Supplementary T-documents, ST39 and ST41.
[4]     Exhibit 2, Supplementary T-documents, ST45 and ST58.
[5]     Ibid, ST16 and ST45.
[6]     Ibid, ST36 and ST60.
[7]     Exhibit 1, T-documents, T33; Exhibit 2, Supplementary T-documents, ST59.
[8]     Exhibit 2, Supplementary T-documents, ST45.
The Applicant’s psychologist described the Applicant having difficulty with:[9]
[9] Exhibit 1, T-documents, T6.
(a)attention and focus;
(b)managing his emotions, particularly when anxious;
(c)inappropriate behaviours such as kicking;
(d)risk taking behaviours;
(e)aggressive behaviours;
(f)reciprocal conversation;
(g)forming friendships;
(h)coping with change; and
(i)coping with crowds or loud noises.
Since commencing this review proceeding, the decision under review has been remade[10] and the Applicant’s approved statement of participant supports includes the originally funded supports together with funding for the following supports:[11]
[10] Following remittals by the Tribunal under section 42D of the Administrative Appeals Tribunal Act1975 (Cth), the most recent decision having been made on 7 February 2022.
[11] Respondent’s closing submissions dated 25 February 2022, pages 7-8.
(a)plan duration 7 February 2022 to 8 August 2022 (6 months);
(b)total funding in 6-month plan is $55,967.77;
(c)core funding total, $22,861.08, which includes:
(i)consumables (self-managed) $350.00:
·low cost AT – personal care and safety $100;
·low cost AT – communication and cognitive support $100;
·low cost AT – prosthetics and orthotics $150;
(ii)daily activities (self-managed) $17,855.76:
·26 weeks, assistance with self-care activities (weekday daytime);
(iii)social (self-managed) $4,655.32 – figure includes floating funding:
·$400 for executive function school holiday group programs;
·$760 for ASD swimming lessons;
·$552.50 for ASD drama classes;
·total for 6 months is $1,712.50;
·plus, floating fund from previous plan is $2,942.82;
(d)capacity building total, $31,086.69, which includes:
(i)choice and control (agency managed) $859.05:
·plan management and financial capacity building – set up costs $232.35;
·plan management – financial administration $104.45 per month, totalling $626.70;
(ii)daily activities (plan managed) $20,282.17:
(iii)other therapy, total 63 hours:
·30 hours speech pathology;
·30 hours occupation therapy;
·3 hours orthotics assessment;
(iv)psychology, 21 hours:
·15 hours psychology;
·6 hours psychology parenting sessions;
(v)physiotherapy, 17 hours:
·14 hours physiotherapy;
·3 hours pelvic physiotherapy;
(vi)training for carers/parents 4 hours;
(vii)social total (plan managed) $976.35 (15 hours);
(viii)relationships (agency managed) $8,168.00:
·20 hours specialist behavioural intervention support;
·20 hours behaviour management plan, including training in behaviour management strategies;
(ix)coordination of supports (plan managed) $801.12 (8 hours);
(e)capital funding total, $2,020.00, which includes:
(i)assistive technology (self-managed), floating funding includes:
·$1,500 for orthopaedic footwear to be fully funded;
·$270 for orthotics to be fully funded; and
·$250 for repairs for orthotics/footwear (additional to requests).
The Applicant, through his mother, seeks three additional supports for which funding has not been included in the decision under review. These are:
(a)percussion class gap funding of $600;
(b)funding of $3,990 for 20 hours per year of feeding therapy and dietetic support including report writing; and
(c)funding for support co-ordination for a total of 60 hours per year.
Prior to the hearing the Respondent’s position had been to invite the Tribunal to affirm the decision under review (which, as a result of a re-made decision, included 15 hours of support co-ordination annually from September 2021). However, shortly after commencement of the hearing, the Respondent departed from this earlier position and submitted that it was appropriate to fund:[12]
(a)35 hours of support co-ordination; and
(b)that a key worker to be funded to provide further services (although the Respondent did not invite the Tribunal to include funding for the key worker as part of the decision in this review application).
[12] Respondent’s closing submissions dated 15 February 2022.
The issues for consideration on review are, therefore, whether funding for the three additional supports sought by the Applicant should be included in his approved statement of participant supports pursuant to subsection 33(2) of the NDIS Act, and whether he requires other reasonable and necessary supports that relate to his disability. The Tribunal’s task is to stand in the shoes of the Respondent and make the correct or preferable decision on the material before it.[13] The Tribunal is to determine whether the correct or preferable decision is to approve, vary, or modify the supports as set out in the Applicant’s approved statement of participant supports.[14]
[13] Shi v Migration Agents Registration Authority (2008) 235 CLR 286, [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [140]-[143] (Kiefel J); Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
[14] McGarrigle v NDIA (2017) 252 FCR 121, [85].
In order to determine a support should be included in the statement of participant supports approved in the Applicant’s plan under subsection 33(2) of the NDIS Act, the Tribunal must have regard to the matters set out in subsection 33(5) of the NDIS Act and determine whether it is satisfied that the support is a “reasonable and necessary support” in accordance with the criteria in subsection 34(1) of the NDIS Act. The word “reasonable” is informed by the criteria set out in subsection 34(1) of the NDIS Act, although its meaning is not exhausted by these factors. In relation to how the CEO’s function works in practice, Mortimer J said in McGarrigle v National Disability and Insurance Agency [2017] FCA 308:[15]
…the text and context of s 33(5)(c), read with s 34(1) indicate that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described… then the question for the CEO (or the delegate or Tribunal) is whether he or she is satisfied that support, as identified, is reasonable and necessary for that particular participant.
[15] Ibid [93]
The Tribunal is to be positively satisfied that the criteria have all been met in order to approve that disputed support for inclusion in the Applicant’s statement of participant supports.[16]
[16] BIJD and National Disability Insurance Agency [2018] AATA 2971, [49].
Paragraph 33(5)(d) of the NDIS Act requires the CEO to have regard to any criteria prescribed by the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘the Rules’) in relation to the manner in which the reasonable and necessary supports will be funded. The Rules made pursuant to subsections 34(2) and 35(1) of the NDIS Act provides further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Pursuant to section 209 of the NDIS Act, the Rules are a legislative instrument and are therefore binding to the Tribunal. In this case the relevant provisions are included within parts three and five of the Rules.
Support Co-ordination
The Respondent submitted that 35 hours of funded support co-ordination would be sufficient to build the capacity of the Applicant’s mother to manage her son’s plan, with the role of care team communication being better performed by a key worker.[17] The Respondent submitted that a figure of 35 hours annually for support co-ordination was “consistent with the recommendation of [Support Co-ordinator],[18] who identified five areas in which [the Applicant’s mother] needed education and support, totaling 31 hours. The sixth category of support, involving 48 hours, had a focus on meetings and communications which the Respondent submits ought to be the role of a key worker taken from the existing therapy team (in accordance with best practice). In this regard, it is noted that the therapy team will include a behaviour support practitioner funded in the 7 February 2022 plan”.[19]
[17]    Respondent’s closing submissions dated 15 February 2022, [5].
[18]    Exhibit 2, Supplementary T-documents, ST4.
[19]    Respondent’s closing submissions dated 15 February 2022, [6].
During the hearing, the Respondent submitted that, rather than identify at that point what the correct or preferable decision should be with respect to the funding of a key worker, the Respondent instead considered that those tasks “could be performed by the behaviour support practitioner who was recently funded, and, if that practitioner considered that they needed additional hours to provide that support, then the agency would consider what the practitioner said was required.”[20] It is unclear how, or when, the Respondent would propose to give effect to such consideration. Alternatively, the Respondent submitted that the key worker might be funded from existing supports, including those most recently agreed by the Respondent to be funded for a behaviour management plan, and more is said about this later in these reasons.[21] The Applicant submitted that those supports are needed for that purpose, and that no key worker is available in any event.[22] The Applicant also submitted that a technical difficulty not disclosed by the Respondent during the hearing would prevent funding for a key worker being processed for a participant over 7 years of age, such as the Applicant.[23] The Tribunal is not able to verify this submission.
[20]   Transcript, P-14, lines 38-42.
[21]    Ibid, P-9, lines 1-14.
[22]    Applicant’s closing submissions in reply dated 7 March 2022, pages 5-6.
[23]    Ibid.
The core request before the Tribunal for consideration is for support worker hours to increase sufficiently to manage the various capacity building and other supports, and the flow of information between school, practitioners and other, in relation to the Applicant’s needs. The Tribunal will consider the available evidence relevant to this requested support. In doing so, the Tribunal notes that the only aspect of this issue that remains to be determined is the number of hours for a support that both parties agree should be funded in the Applicant’s approved statement of participant supports.
The Applicant relied on a statement of lived experience from his mother, who also gave oral evidence during the hearing. In her evidence, and in closing submissions, the Applicant’s mother explained that no support co-ordination had been funded in the Applicant’s plan until interim funding (decided after a remittal of the decision under review through section 42D of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’)) was provided on 10 September 2021. This was some two years after the current proceedings were commenced.
In a statement provided by the Applicant’s mother to the Respondent on or about 27 September 2019, the Applicant’s mother said:[24]
“[The Applicant] does not have key worker. I have sat in on his significant number of therapy sessions (approx. 50 hours of OT alone) and have coordinated separate therapists and acted on their recommendations of his needs. I have been effectively filling that key worker role and developed a very good understanding of [his] needs, capacity and potential (if provided with the right support)… I am running myself into the ground and not able to provide this level of support indefinitely.”
[24] Exhibit 1, T-documents, T31.
In a further undated statement that appears to have been provided to the Respondent about a month later, the Applicant’s mother stated: “A lot of my time is taken up by organising and taking [the Applicant] to appointments, communicating with and relaying information between therapists and school, applying for funding and paperwork… I now have health issues which impact on my capacity to support [the Applicant]”.[25]
[25] Ibid, T36.
The Applicant’s Psychologist, recommended each of the additional supports sought by the Applicant (together with some other, now resolved, supports) in November 2021 and stated: “Having these supports at this stage in life would be instrumental in supporting the family and reducing the amount of supports later in life. The risk of not having these supports would be likely to incur further harm and trauma to the family, which would require more supports down the track rather than less”.[26] The Psychologist was not called upon to give evidence and there is no proper basis to conclude that her evidence as to the Applicant’s needs is anything other than reliable.
[26] Exhibit 4, Applicant’s updated Statement of Facts, Issues and Contentions in reply, Annexure 1
The Applicant’s mother had provided, to the Respondent, evidence from the Applicant’s Paediatrician dating back to October 2019, that support co-ordination was needed, and that (amongst other recommended supports) support co-ordination would assist the Applicant. [27] No other evidence was adduced from a paediatrician, treating or otherwise, on this issue. The Paediatrician was not called upon to give evidence during the hearing and there is no proper basis to reject any of his conclusions as to the Applicant’s needs.
[27] Exhibit 2, Supplementary T-documents, ST36.
The Applicant’s Support Co-ordinator prepared a report dated 8 November 2021.[28] This report was not challenged by the Respondent and no conflicting evidence was produced to the Tribunal. There is no proper basis for the Tribunal to reject the recommendations she has made, that the various tasks required to be undertaken by a support co-ordinator with respect to the Applicant amount to 79 hours annually.[29]
[28] Ibid, ST4.
[29] Ibid, ST4.
It is, or course, proper to consider the uncontroverted evidence of these witnesses within the context of the statutory scheme.
For the six-month period, commencing on 7 February 2022, the Applicant’s statement of participant supports (again, decided after a remittal of the decision under review through section 42D of the AAT Act) has included funding for a behaviour management plan, including behavioural intervention support and for training in behaviour management strategies. One submission by the Respondent was that, rather than provide any more than 35 hours annually of funded support co-ordination, a key worker could be funded from this package of supports because meetings and communications should be the role of a key worker taken from the existing therapy team (in accordance with best practice).[30] The Tribunal notes that to divert funding plainly earmarked for behaviour management plan would have the effect of diluting that funded support. The Tribunal further notes that would likely not represent value for money as, according to the detail in the schedule of currently funded supports annexed to the Respondent’s closing submissions, the hourly rate for support co-ordination is around half of that allowed for the various facets of the behaviour support intervention package.[31] This submission is not supported by any evidence from which the Tribunal could conclude that any part of that funding should be utilized for support co-ordination, nor that a key worker is available to undertake this task.
[30] Respondent’s closing submissions dated 15 February 2022.
[31] Ibid.
In a supplementary statement of facts, issues and contentions lodged by the Respondent, on 31 January 2022, the Respondent noted that the Applicant’s mother had articulated the challenges she had faced in organising and co-ordinating her son’s disability, mainstream and health supports. The Applicant’s escalating behaviours and needs were acknowledged. The Respondent submitted that is was “open to the Tribunal on the evidence to conclude that [the Applicant] needs, including the need for co-ordination of his various supports, is significantly greater than those of other children of a similar age and this imposes a burden on his mother as primary carer which is adversely affecting her wellbeing”.[32] The Respondent noted that the Applicant’s Support Co-ordinator recommended 79 hours of support co-ordination annually with approximately 31 hours of this of a capacity building nature and the balance of 48 hours appearing to be for work of a recurring nature to be performed primarily by the support co-ordinator.[33] The Respondent had also acknowledged (in earlier submissions filed in the proceedings) the recommendation for adequate support co-ordination made by the Applicant’s paediatrician, in his letter dated 4 October 2019.[34]
[32] Exhibit 3, Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 31 January 2022, [26] – [27]; National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 3.4(a)(ii)-(iv).
[33] Exhibit 3, Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 31 January 2022, [29]; Exhibit 2, Supplementary T-documents, ST4.
[34] Exhibit 2, Supplementary T-documents, ST36.

A report was prepared by a Psychotherapist and Clinical Mental Health Social Worker, noting that, in November 2021 the Applicant’s mother was experiencing negative impacts on her mental health as a result of the carer burden, and recommended additional support co-ordination be funded for the Applicant so that this burden, the Applicant’s mother’s mental health and the family’s wellbeing were not further impacted.[35]
[35] Ibid, ST5.
Nonetheless, the Respondent maintained the position that the Applicant’s statement of participant supports contained adequate funding for support co-ordination (15 hours annually) until the day of the hearing, when it was conceded that, in fact, he required 35 hours of funded support co-ordination over the period of a year. Whilst it is proper for the Respondent to make appropriate concessions in proceeding before the Tribunal proceedings, in this case, there was no correlating explanation as to why the Respondent had changed its position on the day of the hearing and no new evidence that might explain the change.
The Respondent submitted that the purpose of the funded support co-ordination would be to “strengthen and build capacity of families and carers to support participants who are children,” and referred to section 31 of the NDIS Act, which contains “Principles relating to plans”, and in particular subsection 31(d) relating to capacity building and strengthening of families.[36] This submission appears to confine the purposes for which this support is sought on behalf of the Applicant. The Applicant’s mother has been spending many hours researching, arranging, linking and liaising with the Applicant’s various supports, including having to undertake a reactive role when circumstances change. The Applicant’s mother did not present as a person who lacked the skills to undertake these tasks but, rather, as a person who has run out of physical and mental capacity and energy to undertake such tasks to the extent required for her son’s needs in addition to her many, varied caring and other co-ordination responsibilities. The Applicant requires his capacity building supports to be delivered in a wholistically beneficial manner. The principle in subsection 31(k) of the NDIS Act provides that planning and management of funding for supports should, as far as reasonably practicable, “provide the context for the provision of disability services to the participant and, where appropriate, coordinate delivery of disability services where there is more than one disability service provider”. When this principle is read in conjunction with the provisions of section 34 of the NDIS Act, and the relevant rules, the scheme plainly contemplates the provision of reasonable and necessary support co-ordination to be funded in appropriate cases.
[36] Respondent’s closing submissions dated 15 February 2022.
The Tribunal finds both the medical and anecdotal evidence, as to the need for extensive support in the co-ordination of the Applicant’s supports, to be compelling. The Applicant is a child and requires support co-ordination to be undertaken on his behalf. In the event, he lives with his mother who works tirelessly to support the Applicant, to care for him and to build his capacity. It is beyond reasonable expectations that she undertake, either single-handedly or without sufficient assistance, the role of support co-ordinator (or, indeed, key worker) whilst managing and caring for the complex needs of her son.
The evidence available to the Tribunal supports the conclusion that support co-ordination is necessary and that the requested number of 60 hours of support co-ordination identified by the Applicant’s mother is reasonable. The Applicant’s Support Co-ordinator identified tasks ranging from managing communications between practitioners and to providing capacity building to the Applicant’s mother with respect to the support co-ordination role. That the Applicant’s mother has sought for 60 hours of funded support co-ordination for the Applicant annually, rather than the 79 hours recommended by the Support Co-ordinator, is consistent with her evidence that she wished to be involved in the selection of care workers who would enter her home, and to have input into other therapists.[37] She gave anecdotal, but compelling, evidence that practitioners do become unavailable from time to time and that significant effort goes into securing suitable alternatives for her son. The Applicant’s mother stated that the Applicant is now seeing the third occupational therapist and third psychologist in the last three-year period as a result of various changes in circumstances.[38] Each new allied health provider must be sourced and briefed, and appointments made, attended and co-ordinated. More recently, the convenient and long-held timeslot for the Applicant’s regular speech therapy was lost because it was not re-booked by the Applicant’s mother in time for the beginning of 2022, no doubt causing distress to both the Applicant and his mother.[39] This evidence was not challenged by the Respondent. This involvement is consistent with a level of informal support that might be expected to be provided by the Applicant’s mother, but the Tribunal is not satisfied that it is proper to expect any further support co-ordination to be undertaken by the Applicant’s mother in the circumstances of this case.
[37]    Transcript, P-75, lines 15-17.
[38]    Applicant’s closing submissions in reply dated 7 March 2022.
[39]    Transcript, P-69, lines 41-44.
The Tribunal notes the Respondent’s submission that flexible funding from elsewhere in the funded supports could be deployed for key worker services.[40] The Tribunal accepts the Applicant’s mother’s evidence that some Covid-related circumstances, and the escalation of his behaviors, have prevented some therapies from being fully utilized during 2021, but that this is unlikely to continue.[41] It is therefore unlikely that flexible funding will be under-utilized and therefore available as suggested by the Respondent.
[40] Respondent’s closing submissions dated 15 February 2022, [11].
[41] Applicant’s closing submissions in reply dated 7 March 2022, page 6.
On the basis of the conclusions drawn from the available evidence, the Tribunal finds that the Applicant’s approved statement of participant supports is to include funding for support co-ordination sufficient to provided 60 hours in total, annually.
Dietician
The Applicant’s treating Dietician prepared a report dated 24 May 2021 in which she identified the Applicant’s disability-relating issues with eating and food and recommended 20 sessions annually to work with the Applicant to address food-related issues arising from his sensory processing disorder and autism.[42] The Dietician confirmed the contents of this report during the hearing and explained that the Applicant had made progress with his feeding therapy goals since writing that report.
[42] Exhibit 2, Supplementary T-documents, ST21.
The Dietician stated during the hearing that, although she had some clients who received partial re-imbursement of their fees through a Medicare rebate, it was more appropriate for the Applicant’s dietetic consultations to be funded through the NDIS as this would allow for the whole of the costs to be met, and these costs were related to the Applicant’s disabilities.[43]
[43] Transcript, P-28, lines 32-40.
The Respondent submitted that these dietician’s costs were more appropriately provided (via Medicare funding) by the health system.[44] The Respondent further submitted that paragraph 34(1)(f) of the NDIS Act reflects that supports for needs related to a disability are not wholly funded by the NDIS, and that the health system has an ongoing role in supporting the Applicant, for example, via his paediatrician and via emergency support when required.[45] The difficulty with this submission in the context of this particular case is that there is no available evidence from which the Tribunal could reliably conclude that the services of an allied specialist such as the Dietician would be met by Medicare, both because there is a shortfall between her costs and the relevant Medicare item,[46] and because there is a limit, annually, on the number of allied health services that can be claimed through Medicare. The Applicant’s mother claimed, and the Tribunal accepts, that these services had been utilized in the past for health issues that were not related to the Applicant’s disability.[47] It follows from this evidence that this may also be the case in the future, and that the Applicant is entitled to access that Medicare-funded health support should he so require.
[44]    Respondent’s closing submissions dated 15 February 2022, [13].
[45]    Ibid, [17].
[46]    Transcript, P-30, lines 20-29.
[47]    Transcript, P-85, lines 11-47; P-86, lines 1-4.
The services provided by the Dietician target the Applicant’s disability-specific needs. Paragraph 34(1)(f) of the NDIS Act calls for consideration of how such a support should be funded, and whether the NDIS is the appropriate mechanism. However, paragraph 34(1)(f) does not provide that a partial, or limited entitlement of a Medicare refund for an allied service leads inexorably to the conclusion that such a support cannot be funded under the NDIS. The question is whether it is “appropriate” to do so. The Rules inform the reading of this provision of the NDIS Act by identifying “health” as a cost to be more appropriately met through the mainstream system. Many funded supports address the heath of a participant, so this provision must be read as intending to address the general health of a participant, independent of any disability. The Applicant’s need for a dietetic consultation and feeding therapy does not relate to his general health, but to his disability-specific needs. In this case the Tribunal cannot be satisfied on the available evidence that the cost will be met, either wholly or partially, through the mainstream medical system. The cost is therefore more appropriately met by the NDIS.
The Tribunal therefore finds that the Applicant’s approved statement of participant supports is to include funding for his dietician costs of 20 hours annually.
Gap funding for percussion lessons
In a letter dated 26 November 2021, the Applicant’s Paediatrician described the recent severe escalation of the Applicant’s behaviour, including “meltdowns” and the lack of impulse control which were of concern as due their violent nature and risk of harm to the Applicant and others.[48] I note that this is consistent with the evidence in police and ambulance reports provided by the Applicant’s mother and not challenged by the Respondent.[49] In addition to recommending changes to the Applicant’s pharmacological regime, the Paediatrician also stated, “therapy and school supports of course will be absolutely vital and in fact the mainstays of his holistic management plan”.[50] This evidence was not challenged by the Respondent.
[48]    Exhibit 2, Supplementary T-documents, ST10.
[49]    Ibid, ST7-ST9.
[50]    Ibid, ST10, page 2.
The Applicant’s Percussion Teacher provided a report which she confirmed during the hearing and gave evidence consistent with her report.[51] She concluded that the Applicant benefitted from percussion lessons but was not able to participate in them with other children, at this stage. Therefore, the difference between a shared and private lesson was related to his disabilities and, in particular, certain behaviours arising from his ASD and hypersensitivity to sensory input.[52] The Percussion Teacher explained that not every child at the Applicant’s school participates in percussion lessons, or in music lessons of any kind, but parents may elect to apply for lessons for their child.[53] She also stated that the Applicant was learned a great deal about music, but also about trust and communication throughout the lessons. [54]
[51]    Ibid, ST19.
[52]    Transcript, P-40, lines 7-20.
[53]    Ibid, P-38, lines 20-25.
[54]    Ibid, P-40, lines 22-43.
The Respondent submitted that the Percussion Teacher’s evidence demonstrated that the Applicant engages in music sessions in order to further his interest in music, rather than to pursue a therapeutic goal (paragraph 34(1)(d) of the NDIS Act) or to facilitate social participation (paragraph 34(1)(b) of the NDIS Act). Further, the Respondent submitted that the “thrust of the evidence was that the lessons were developing [the Applicant’s] interest in music, rather than a being a therapeutic exercise to improve his skill deficits. Accordingly, the cost of the lessons is ultimately a day to day living cost pursuant to rule 5.1(d)”.[55] The Tribunal notes that, despite the opportunity to do so during cross-examination, the invited conclusions were not actually put to the Percussion Teacher by counsel for the Respondent.
[55] Respondent’s closing submissions dated 15 February 2022, [25]; Transcript, P-39, lines 15-30.
The Paediatrician provided an earlier report, dated 26 May 2021, in which he was asked about the extent to which one-on-one percussions lessons might be expected to assist the Applicant to achieve his goals. He stated:[56]
Percussive music classes will help develop skills that may contribute for a greater ability to build and maintain relationships with peers, as well as help him gain confidence in being able to express himself in ways that enable him to participate fully in normal daily life.
[56] Exhibit 2, Supplementary T-documents, ST16.
The Tribunal notes that the Paediatrician variously identifies the percussion lessons as providing the Applicant with skills to cope with sensory inputs and build his self-confidence and self-esteem, which he regarded as relevant to future social interaction and to the management generally of his sensory processing.[57] Therefore, the uncontroverted clinical recommendation from the Applicant’s paediatrician is that percussion lessons support the Applicant and are related to his disabilities and will assist in meeting certain of his goals.[58] Most recently, the Paediatrician described this (and other) therapies as “absolutely vital”.[59] The conclusions of the Paediatrician are consistent with the recommendations of the Psychologist set out earlier in these reasons.
[57] Ibid, ST16, [6]-[8].
[58] Exhibit 1, T-documents, T49.
[59] Exhibit 2, Supplementary T-documents, ST10.
Many parents provide music lessons and other activities for their children, and a family might generally be expected to fund the ordinary cost of doing so, particularly having regard to the limitations imposed by paragraph 34(1)(e) of the NDIS Act and Rule 5.1(d). However, where music therapy (in this case, one-on-one percussion lessons) is recommended by a treating paediatrician, and the Applicant’s disability is a barrier to the provision of that therapy within the bounds of those usual expectations, it is appropriate for any disability-specific uplift on those costs to be funded by the NDIS as a reasonable and necessary support.
The Tribunal therefore finds that the Applicant’s approved statement of participant supports is to include funding sufficient to meet the annualised cost of the uplift (of $600 across the school year) for the Applicant undertaking private, rather than shared, percussion lessons.
CONCLUSIONS
The Tribunal has found that correct and preferable decision in this case is to set aside the decision under review and, in substitution, approve a statement of participant supports for the Applicant that includes funding for:
(a)Support Co-ordination of 60 hours per year (in total);
(b)20 hours per year of feeding therapy and dietetic support including report writing ($3,990 per year);
(c)Percussion class gap funding ($600 per year);
and otherwise specifies the reasonable and necessary supports and other aspects of the statement of participant supports as set out in the decision under review (as varied on 7 February 2022).
I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for decision of Senior Member Buxton.
……………[SGD]………………………
Associate
Dated: 4 April 2022
Date of the hearing:   16 February 2022
Date of final submissions:  7 March 2022
Applicant’s Representative:            Ms X (Applicant’s Mother)
Counsel for the Respondent:  Ms S. Varney
Solicitors for the Respondent:                   Ms M. Richardson

[2022] AATA 1062

4 April 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction