PYQJ and National Disability Insurance Agency
[2023] AATA 37
•19 January 2023
PYQJ and National Disability Insurance Agency [2023] AATA 37 (19 January 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number:2021/5132
Re:PYQJ
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Senior Member K. Parker
Date:19 January 2023
Date of written reasons: 19 January 2023
Place:Melbourne
The Tribunal sets aside the Decision Under Review and remits this matter to the Respondent with the following direction:
within 14 days of the date of this Decision, the Respondent is to facilitate the approval of a new statement of participant supports for the Applicant, PYQJ (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)20 hours per week of individual Applied Behaviour Analysis (ABA) therapy for the period commencing on 2 March 2021 and to end on the Reassessment Date;
(ii)one hour per week of speech therapy for the period commencing on 2 March 2021 and to end on the Reassessment Date;
(iii)12 hours per month for the cost of the therapist and other practitioners to meet with both of PYQJ’s parents for the period commencing on 2 March 2021 and to end on the Reassessment Date;
(iv)6 hours per annum for the preparation of NDIS progress report(s) by a behaviour consultant and speech pathologist; and
(v)8.5 hours per annum to fund a standardised assessment by a psychologist; and
(vi)replication (on a pro-rata basis) of all other existing supports in PYQJ’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 PYQJ’s current SOPS.
........................................................................
Senior Member K. Parker
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of internal review decision by the National Disability Insurance Agency (NDIA) regarding decision to approve a statement of participant supports (SOPS) for the Applicant – the Applicant is child participant in the National Disability Insurance Scheme (NDIS) – the Applicant’s parents seek funding for Applicant to attend Little Learners program at Autism Partnership where she will receive Applied Behaviour Analysis (ABA) therapy and associated services – whether requested supports are “reasonable and necessary supports” under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – consideration of the type and level of supports which are “reasonable and necessary supports” and should be included in Applicant’s SOPS – Tribunal satisfied that that centre-based ABA therapy and some other associated services, including weekly speech therapy, should be funded but not as requested – decision under review set aside and remitted with directions to facilitate the making of a new SOPS for Applicant including some, but not all of, the Requested Supports
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
FRCT and National Disability Insurance Agency, Re [2019] AATA 1478
McGarrigle v National Disability Insurance Agency [2017] FCA 308
XXWC and National Disability Insurance Agency, Re [2020] AATA 923
Secondary Materials
Prior M. and Roberts, J. Early Intervention for Children with Autism Spectrum Disorders: Guidelines for Good Practice (2012)
Roberts J and Williams K, Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers (February 2016)
REASONS FOR DECISION
Senior Member K. Parker
19 January 2023
The Applicant, PYQJ, is a child participant in the National Disability Insurance Scheme (NDIS) who has been diagnosed with autism spectrum disorder of Level 3 severity (ASD), and global developmental delay (GDD).[1] She has a disability arising from language and other impairments resulting from those conditions. The NDIA agrees that her disability impacts upon her functional capacity and the upon the lives and responsibilities of her family.[2]
[1] The Applicant is a child and so her name will be the pseudonym, PYQJ. 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). Evidence of the diagnosis for PYQJ’s ASD may be found in T-Documents, T14 and T4.
[2] Refer NDIA’s Closing Submissions.
This application concerns a request by PYQJ’s parents for an increase in the number of hours of Applied Behaviour Analysis (ABA) therapy for PYQJ to be funded under her NDIS plan, at a level sufficient to allow PYQJ to continue the “Little Learners” program (LL Program) delivered by a privately-owned service provider, Autism Partnership (AP).
The LL Program is a form of intensive early intervention for young children with ASD. PYQJ commenced enrolment in the LL Program on 15 February 2021.[3] The NDIA agrees that PYQJ should be funded for centre-based ABA therapy but not at the level sought by her parents (their request aligns with AP’s contractual requirements of the LL Program), and that it should not include some of the associated services, such as to fund sessions between AP staff to consult with one another about PYQJ.[4] The NDIA considers that the current level of funding for ABA therapy provided to PYQJ under her NDIS plan (being equivalent to 12 hours per week) is adequate and that the provision of funding at a level beyond this, does not meet the “reasonable and necessary supports” criteria under s 34(1) of the NDIS Act.
[3] Refer T-Document T1A.
[4] Refer NDIA’s Closing Submissions, paragraph [4(b)].
The Tribunal’s jurisdiction arises under s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), operating in conjunction with s 103 of the National Disability Insurance Scheme Act 2013 (Cth) (NDISAct).
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 PYQJ as outlined in the Decision (on pages 1 and 2 above).
BACKGROUND
PYQJ is a four-year-old girl (about to turn five) who was granted access to the NDIS in July 2020. PYQJ lives with her mother, father, and younger brother. PYQJ’s parents own and run a pharmacy. They have employed one part-time employee to assist in the pharmacy, but she is not a pharmacist. PYQJ’s father is a pharmacist, and PYQJ’s mother attends to the bookkeeping for the pharmacy. She is also the primary carer for PYQJ and PYQJ’s younger brother. In PYQJ’s Statement of Facts, Issues and Contentions (PYQJ’s SFIC), it states that PYQJ’s younger brother has “significant needs”.[5] PYQJ’s mother told the Tribunal at the hearing that she suspected that her husband was on the spectrum, but that he has never sought or been diagnosed with ASD.[6] She described their marriage as “rocky”.[7] He works six days a week in the pharmacy and did not participate in the hearing before the Tribunal.[8]
[5] Refer PYQJ’s SFIC, paragraph [11].
[6] Refer Transcript P-33.
[7] Ibid.
[8] Ibid P-5.
When PYQJ was three years and one month old, she was assessed by a psychologist who found that PYQJ’s verbal comprehension was in the 16th percentile, her visual spatial was in the 4th percentile, and her working memory skills were in the 5th percentile.[9] Those results were assessed to fall in the “borderline” range of intellectual capacity, above the level of intellectual disability. An Autism Diagnostic Interview – Revised (ADI-R) assessment was undertaken, and it was found to be consistent with a diagnosis of ASD, at an estimated Level 3-severity, with associated language impairment. Ms Stephanie Nicholson, Speech Pathologist employed by AP, confirmed that PYQJ had problems of language comprehension and expression, and motor control (childhood apraxia of speech).[10]
[9] Refer T-Document T14, 103.
[10] Refer PYQJ’s HTB, Page 395.
In a further progress report prepared by an AP Behaviour Consultant, Mr Matthew Quattrocchi, on 31 May 2021, when PYQJ was aged three years and three months, she was recorded as displaying self-stimulating behaviours, restricted activities, poor joint attention, and aggressive behaviour.[11]
[11] Refer T-Document T1A, Page 7.
First SOPS and NDIS Plan – 30 July 2020
On 30 July 2020, PYQJ’s first NDIS statement of participant supports (SOPS) was approved by a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (NDIA). It approved total funding of $50,634.07 for the period 30 July 2020 to 30 July 2021, including Core Supports of $6,113.36; and Capacity Building Supports of $44,520.71 (First SOPS).
Second SOPS and NDIS Plan – 2 March 2021
On 2 March 2021, before the review date of the First SOPS, a delegate of the CEO made a decision under s 33(2) of the NDIS Act to approve a statement of participant supports (Second SOPS) for PYQJ for the period 2 March 2021 to 2 March 2022. Under the Second SOPS, funding was approved for an intensive level of capacity building supports for PYQJ to complete a trial of early intensive behavioural intervention (EIBI) with Sunrise Behavioural Health (SBH). Total funding of $65,512.39 was approved in the Second SOPS, including Core Supports of $7,897.36; and Capacity Building Supports of $57,615.03.
Internal Review Decision and Third SOPS – 13 July 2021
PYQJ’s mother sought a review of the decision to approve the Second SOPS by a “reviewer” of the NDIA under s 100(6) of the NDIS Act. PYQJ sought funding of $164,324.72 to facilitate PYQJ’s enrolment in the LL Program, in addition to the existing weekly speech pathology service.[12]
[12] Refer PYQJ’s SFIC, paragraph [9]
On 13 July 2021, the “reviewer” affirmed the decision to approve the Second SOPS (IRD). The “reviewer” noted in the IRD that the EIBI provided by SBH was paired with PYQJ attending childcare, but reportedly, it became necessary to take PYQJ out of childcare after two months “because her learning barriers were too severe”.[13] The owner of SBH prepared a report stating that PYQJ had responded “very well” to “intensive behavioural intervention”, as evidenced by her progress toward achieving her NDIS goals.[14]
[13] Refer IRD, Page 4.
[14] Ibid, Page 5.
The reason for the NDIA not accepting PYQJ’s request at that time for funding for 31 hours of ABA therapy, was set out in the IRD (emphasis added):[15]
While there is evidence that the current level of support is enabling [PYQJ] to meet her NDIS goals, the supporting evidence does not demonstrate that an increase to 31 hours of therapy per week is required to enable [PYQJ] to continue to progress towards and achieve her therapeutic NDIS goals. Furthermore, there is no evidence to determine that a lesser intensity of support would be less effective and beneficial for [PYQJ] to meet her NDIS goals.
There is also insufficient evidence available that the requested level of therapy input is sustainable, having regards to [PYQJ]’s age and her attendance in day-care or kinder. One of the overarching NDIS principles is to increase a participant’s community and mainstream participation. The NDIS ECEI approach recognises that every child regardless of their needs has the right to participate fully in their family and community life and to have the same choices, opportunities and experiences as other children. The funded supports in an NDIS plan should not inadvertently reduce a participant’s community or mainstream participation (including participation in mainstream education and community based activities). By reducing [PYQJ]’s attendance in a mainstream day-care or kinder setting it would be going against this principle.
Consideration has also been given to the best-practice early intervention which promotes a family-centred approach. This is because children learn through relationships with the key people in their lives and through their participation in their everyday environments.
As such, [PYQJ]’s ABA program should support [PYQJ]’s primary carers to be able to implement strategies across environments for maximum skill acquisition, beyond the time [PYQJ] spends in therapy. There is limited information available from [PYQJ]’s therapy team regarding the participation of [PYQJ]’s family in the program, the capacity in which they do so, and how often they do so.
[15] Ibid.
As at the date of the IRD, PYQJ’s parents had over-utilised the approved funding in PYQJ’s plan, presenting a risk to PYQJ of not being able to access future supports. The “reviewer” brought s 46 of the NDIS Act to the attention of PYQJ’s parents. This section provides that a person who receives an NDIS amount on behalf of a participant must spend the money in accordance with the participant’s plan. Despite the non-adherence by PYQJ’s parents to s 46 of the NDIS Act, the “reviewer” decided to implement a new plan for PYQJ so that she would have access to funding. The “reviewer” warned PYQJ’s parents that they were expected to utilise the funding in line with the intent of the plan, and that the funding is to be “budgeted” to last for the following 12 months.[16]
[16] Ibid, Page 6.
A further 12-month SOPS was approved on 13 July 2021, approving total funding for PYQJ of $63,928.39 (Third SOPS), comprising:[17]
(a)Core Supports of $6,313.36 (self-managed); and
(b)Capacity Building Supports of $57,615.03 for the provision of early childhood intervention supports to work together in the home and community settings within a key worker model and including psychology and physiotherapy rates (self-managed).
[17] Refer T-Documents T1C/35 & 36.
Fourth SOPS and NDIS Plan – 17 February 2022
On 17 February 2022, a delegate of the CEO approved a new SOPS for PYQJ approving total funding of $17,642.83 to cover a notional three-month period from 17 February 2022 to 19 May 2022 (Fourth SOPS), containing the following supports:
(a)funding for Core Supports of $1,581.72 (self-managed); and
(b)funding for Capacity Building Supports of $16,061.11 (self-managed).
Fifth SOPS and NDIS Plan – 28 November 2022
On 28 November 2022, a delegate of the CEO approved a SOPS for PYQJ approving total funding of $17,682.09 for a notional three-month period from 28 November 2022 to 27 February 2023 (Fifth SOPS), containing the following supports:
(a)funding for Core Supports of $1,620.98 (self-managed); and
(b)funding for Capacity Building Supports of $16,061.11 (self-managed).
Requested Supports
In PYQJ’s Closing Submissions, PYQJ’s representatives contend that PYQJ’s:[18]
individual reasonable and necessary needs have been assessed by her treating psychologist, speech pathologist and paediatrician as requiring (in addition to the speech pathology which has been accepted by the Respondent) a minimum of 25 hours per week of ABA therapy with the associated behavioural consultancy/therapy, and she has identified the Little Learners program as an appropriate option to meet this need.
[18] Refer PYQJ’s Closing Submissions, paragraph [3].
In PYQJ’s Closing Submissions, the following supports are requested for PYQJ:[19]
(a)funding for 27 hours per week (comprising 21 hours per week of individual ABA therapy plus an additional 6 hours per week of small group behaviour therapy);
(b)12 hours per month of consultation from a “Behavioural consultant to consistently review progression, develop individualised goals, and work with the family to build skills for integration of the skills learned by [PYQJ] in the ABA program into her home life and broader community”;
(c)12 hours per month from a "behavioural therapist" to attend fortnightly team meetings (shared between two therapists);
(d)8.5 hours of standardised assessment with a psychologist; and
(e)6 hours for the provision of an NDIS progress report from a behavioural consultant and speech pathologist in addition to the one hour per week of speech pathology agreed between the parties.
[19] Ibid, paragraph [4].
The Tribunal will refer to those supports collectively as the Requested Supports.
ISSUE
The issues arising in this application are:
(a)whether the Requested Supports are “reasonable and necessary supports” under s 34(1) of the NDIS Act and should be funded under PYQJ’s NDIS plan (as of 2 March 2021 being the date of approval of her Second SOPS from which PYQJ sought review); and if not,
(b)what other type and level of supports (if any) additional to the supports that have been funded under her NDIS plans since 2 March 2021, are “reasonable and necessary supports” under s 34(1) of the NDIS Act and should be included in a new SOPS for PYQJ.
LEGISLATIVE REGIME
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
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 (Support Rules).
Section 31 of the NDIS Act establishes a set of general principles that applies to the preparation, variation, reassessment, and replacement of an NDIS participant’s plan, as reproduced below:
31 Principles relating to plans
The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a)be individualised; and
(b)be directed by the participant; and
(c)where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(ca)where relevant, recognise and respect the relationship between participants and their families and carers; and
(d)strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Section 31 of the NDIS Act sets out several principles that apply in the development of an NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs what funding the participant is entitled to receive under the scheme. Each plan must have in it an approved SOPS and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:
(a) have regard to the participant’s statement of goals and aspirations;
(b) have regard to relevant assessments conducted in relation to the participant;
(c) be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d) apply any methods and have regard to any criteria prescribed by the NDIS rules in relation to the manner in which the reasonable and necessary supports will be funded;
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
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 community to provide;
(f)the support is most appropriately funded or provided through the [NDIS], 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.
(2)The [NDIS] rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
Section 33(5)(d) of the NDIS Act requires that the Supports Rules be applied in the making of a decision to approve a SOPS.
The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43] as follows:
The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) and (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The [Supports for Participant Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.
The Tribunal has considered the Operational Guidelines published by the Respondent on its website; 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.
EVIDENCE AND SUBMISSIONS
PYQJ lodged the following sets of documents with the Tribunal:
(a)Hearing Tender Bundle comprising 496 pages, containing PYQJ’s NDIS plans, evidence, and literature articles (PYQJ’s HTB);[20] and
(b)Supplementary Hearing Tender Bundle comprising 150 pages, containing further evidence and the parties’ statements of facts, issues, and contentions (PYQJ’s S-HTB).[21]
[20] Refer Exhibit A1.
[21] Refer Exhibit A2.
The NDIA lodged the following sets of documents with the Tribunal a set of documents lodged with the Tribunal pursuant to its obligations under s 37 of the AAT Act (T-Documents), comprising 293 pages.
PYQJ called the following witnesses at the hearing:
(a)PYQJ’s mother (Ms PYQJ);
(b)Ms Heather Guildford, registered educational and development psychologist;
(c)Mr Matthew Quattrocchi, AP behaviour consultant; and
(d)Ms Karen McKinnon, AP Clinical Director, clinical psychologist, board-certified behavioural practitioner (BCBP) and AP shareholder.
The NDIA called the following independent experts to give evidence at the hearing:
(a)Dr Erin Leif, Monash University Senior Lecturer (Dr Leif); and
(b)Associate Professor Michael McDowell (A/P McDowell), independent specialist paediatrician.
Both parties lodged submissions prior to the hearing as follows:
(a)NDIA’s Statement of Issues, dated 8 October 2021 (NDIA’s SOI) comprising 4 pages;
(b)PYQJ’s reply to the NDIA’s SOI, dated 17 October 2021 (PYQJ’s Reply to SOI) comprising 34 pages;
(c)PYQJ’s statement of facts, issues, and contentions, dated 17 January 2022 (PYQJ’s SFIC) comprising 15 pages;
(d)NDIA’s statement of facts, issues and contentions dated 21 March 2022 (NDIA’s SFIC), comprising 14 pages; and
(e)PYQJ’s reply to NDIA’s SFIC dated 31 March 2022 comprising 12 pages (PYQJ’s Reply SFIC).
PYQJ lodged the following further statements and a letter with the Tribunal containing detailed submissions and references to other AAT decisions and evidence:
(a)PYQJ’s mother’s letter to the “NDIS” dated 29 September 2021 comprising 9 pages;
(b)PYQJ’s mother’s Statement dated 18 October 2021 comprising 52 pages;
(c)PYQJ’s mother’s Statement dated 1 December 2021 comprising 10 pages; and
(d)PYQJ’s mother’s Statement dated 2 December 2021 comprising 35 pages.
The NDIA lodged a bundle of summonsed material comprising 148 pages produced by Dr Leif including materials relating to AP, Autism Pathways, and an ABA Today Conference (Summonsed Material).
Both parties lodged written closing submissions after the hearing as follows:
(a)PYQJ’s closing statement was lodged on 20 May 2022 comprising 19 pages (PYQJ’s Closing Submissions); and
(b)NDIA’s closing submissions were lodged on 3 June 2022 comprising 35 pages (NDIA’s Closing Submissions); and
(c)PYQJ’s reply to the NDIA’s Closing Submissions on 24 June 2022, authored and signed by PYQJ’s mother, comprising 54 pages (PYQJ’s Reply Closing Submissions).
CONSIDERATION
The NDIA contends that this application does not invite a review of the efficacy of ABA therapy more broadly and that PYQJ’s evidence and submissions “made it clear that the support sought to be included in her SOPS is not a certain number of hours of ABA therapy but is the single, indivisible support” that is the LL Program as delivered by AP.[22] The NDIA contends the Tribunal ought to have regard to the characteristics of the LL Program as explored in the evidence.
[22] Refer NDIA’s Closing Submission, paragraph [5].
The task of the Tribunal, when reviewing an NDIS’s participant SOPS, is a broad one. It is to consider what supports should be included in it, how long the notional duration of the plan should be, and how the funding and other aspects of the Tribunal should be managed. Often parties come to the Tribunal and agree to some of those aspects and seek review in relation to other aspects. The Tribunal undertakes merits review and stands in the shoes of the original decision maker. In the case of applications seeking review of decisions made relating to the approval of a SOPS for a participant, by the operation of s 43(1) of the AAT Act, the Tribunal may exercise all the powers and discretions that are conferred by the NDIS Act on the person who made the decision.
Based on those matters, the Tribunal may, if it decides it is appropriate, undertake a holistic review of all aspects of the SOPS for PYQJ. However, given the matters already agreed as between the parties, the Tribunal considers that it is appropriate in this matter, to confine its consideration in this proceeding, to the question of whether ABA therapy (and funding for the associated supports) should be included as supports in PYQJ’s SOPS and funded under her NDIS plan. There is no dispute between the parties about the notional duration of the plan and who should manage it.
The Tribunal does not consider that it is confined to consider the question of whether the ABA therapy as delivered by AP through its LL Program, constitutes a “reasonable and necessary support” under s 34(1) of the NDIS Act in a blinkered manner. If the Tribunal is not satisfied that this specific support meets the criteria, the Tribunal considers it appropriate to proceed to consider the issue referred to in paragraph [21(b)] above, and specifically, whether another level of funding for ABA therapy and associated services should be provided for PYQJ and if so, what level would constitute a “reasonable and necessary support” under s 34(1) of the NDIS Act.
Turning to the “reasonable and necessary supports” criteria, the NDIA contends that the Requested Supports do not satisfy ss 34(1)(c), (d), (e) and (f) of the NDIS Act. The NDIA summarised its main contentions as follows (emphasis added):[23]
In summary, the Respondent submits that the evidence demonstrates the following:
(a) The Program is fundamentally inflexible, requiring children to participate in a package of supports involving in-centre ABA therapy (27 hours of direct ABA therapy in addition to a large number of corollary hours or review and meetings between Autism Partnership staff) based on commercial service defaults rather than the child's individual clinical need. Having regard to the best available expert evidence, that of A/Prof McDowell, the Program is not effective and beneficial, having regard to current good practice in the provision of ABA therapy to children with ASD. The Program accordingly does not satisfy s 34 (1)(d) of the Act.
(b) For similar reasons, the Program is also not value for money. The model proposed by A/Prof McDowell as reflecting current good practice would invariably be less expensive and more effective. In these circumstances, the value proposition presented by the Program is a poor one and is insufficient to satisfy s 34(1)(c) of the Act.
(c) The Program does not take into account what it is reasonable to expect families, carers, informal networks and the community to provide. A/Prof McDowell has expressed the view that parents and the Applicant's family should be heavily involved in the provision of therapy to the Applicant and that the construction of an ABA program for the Applicant should have commenced with a family-centric approach with supervision and oversight by ABA practitioners. To the contrary, the Program entails the Applicant being dropped off at a centre, with limited feedback being provided by Autism Partnership's staff to the Applicant's mother (but not her father). This is inconsistent with what might reasonably be expected of the Applicant's parents in the circumstances per s 34(1)(e) of the Act
(d) The Program, inasmuch as it resembles a form of preschool or pre-kindergarten preparation, is not a service which is appropriately funded through the NDIS per s 34(1)(f) of the Act.
[23] Refer NDIA’s Closing Submissions, paragraph [7].
The NDIA contends that it would appear possible that the Requested Supports are “capable of discrete assessment”. However, the NDIA highlights that PYQJ has asked for funding for the LL Program offered by AP, and that it was apparent from the oral evidence by multiple witnesses, that that LL Program, purportedly comprising the Requested Supports, is a “single, indivisible support”.[24] Specifically, the NDIA referred to the evidence of Ms McKinnon, that if a person did fewer than 27 hours at AP they would “move into more of a sessional model of service” and that PYQJ “would not access the service if she didn’t have the money to pay for that service” (that is, the 27 hours per week).[25]
[24] Refer NDIA’s Closing Submissions, paragraph [10].
[25] Refer Transcript, P-112.
The NDIA contends as follows:
This is consistent with the advertisement of the Program in Autism Partnership's marketing materials, which provide only a single price for the provision of the Program.[26] In short, as was evident in the course of the evidence before the Tribunal, the Program is provided on an "all or nothing" basis: the Program does not provide for the selection of supports on a basis adopted to suit the individual child and cannot be undertaken by a child who is unable to pay for, and participate in, 27 hours per week of ABA therapy.
[26] Refer Exhibit A1, Page 132.
At the hearing, PYQJ’s mother gave evidence that if PYQJ is not funded under the NDIS to receive the full program, that she will continue to enrol PYQJ in the LL Program anyway and will make up the “gap” in fees privately.[27]
[27] Refer Transcript, P-60.
Section 33(5) of the NDIS Act requires that the CEO (or delegate), in deciding whether to approve the SOPS under s 33(2), have regard to a number of factors including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are “reasonable and necessary supports”.
Section 34(1) of the NDIS Act requires six mandatory criteria to be met before a support is considered to be a “reasonable and necessary support”. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision-maker is to have regard, in deciding whether they are satisfied that the criteria under s 34(1) have been met in respect of a requested support.
Section 34(1)(a) – PYQJ’s goals and aspirations
There was no dispute between the parties that this criterion is met in respect of the Requested Supports. The Tribunal notes that PYQJ’s goals and aspirations in her Fifth SOPS include the following:
(a)to develop PYQJ’s gross and fine motor development skills;
(b)to develop her language and communication skills to enable her to communicate effectively with those around her;
(c)to learn new things and increase her problem-solving skills;
(d)to develop emotional awareness and emotional self-regulation skills;
(e)to play with other children and engage in social interaction with others; and
(f)to begin to develop her self-care skills in eating, sleeping, bath time and toileting.
The Tribunal considers that the Requested Supports would assist PYQJ to pursue those goals and aspirations and therefore, the criterion under s 34(1)(a) of the NDIS Act is met.
Section 34(1)(b) – social and economic participation
Again, there was no dispute between the parties that this criterion is met in respect of the Requested Supports. The Requested Supports are aimed at building the capacity of PYQJ to participate socially and economically into the future as a member of the community. Accordingly, the Tribunal finds that this criterion under s 34(1)(b) of the NDIS Act is met.
Section 34(1)(d) & (c) – effective and beneficial and value for money
The Tribunal will deal with both criteria together, as there is substantial overlap in the evidence to be considered when assessing whether the Requested Supports are, or likely to be, effective and beneficial for PYQJ and if this is established, whether the supports represent value for money (in that the costs are reasonable, relative to both the benefits to be achieved and the cost of alternative supports).
This was a central point of dispute between the two parties in this proceeding.
PYQJ’s mother considers that the increased intervention with AP has allowed PYQJ to “tap into her full potential” and that for the first time (as of 17 October 2021), she has been able to do the following things (taken from PYQJ’s Reply to SOI) (emphasis added):[28]
[28] Refer PYQJ’s Reply to SOI, Page [34].
For the first time, [PYQJ]
1. Is calmer in doing her programs, tasks, and in life in general
- She is consistently happier, though she still has a long way to consolidate this area
- Doesn’t bite/push her brother unprovoked - in fact, she now plays with her brother sometimes.
- Rarely has meltdowns, whereas before AP, they were frequent and sometimes, she would even get fainting spells
2. PYQJ also now plays with other children - She is able to show them snippets of joint attention and of social referencing. Whereas before intensive intervention, she was never interested in interacting with anyone, including children.
3. PYQJ is almost now completely toilet trained. She has been out of nappies for the last 6 months. She can poo and pee in the toilet. She just needs to consistently self-initiate going to the toilet.
4. Most importantly, PYQJ is giving me windows of opportunity to teach her. Foundational learning skills and language skills acquired at AP, has made looking after her more manageable, and teaching her at home easier and possible.
5. In addition, PYQJ is now able to generalise many of the skills learnt at AP in her everyday life, and as such, she has attained many functional skills. PYQJ now assists me with her self-care skills such as bathing, washing hands, brushing teeth, putting clothes and shoes on etc. Beforehand with less intensive intervention, her learnt skills were confined to the set tasks in her therapy and could not be extended to her natural environment.
PYQJ’s mother, upon receiving PYQJ’s initial “diagnosis of developmental delays with probable cause of autism”, engaged in substantial research to determine what supports were available to meet her needs using “best practice therapies”. PYQJ’s mother’s evidence is that she has contacted several service providers, including Ibrina, Lizard Centre, Early Autism Services, SBH, Learning for Life and AP.[29] PQYJ’s mother states that AP was based in a convenient location for the family, and AP was able to commence PQYJ in its 4-day per week LL Program within a reasonable timeframe.[30]
[29] Refer PYQJ’s Closing Submissions, paragraph [14].
[30] Ibid, paragraph [27].
Independent assessment by A/P McDowell
A/P McDowell was engaged by the NDIA to prepare an expert report in respect of PYQJ. He did not assess PYQJ because her mother objected to any such assessment. Instead, A/P McDowell was provided with a set of documents about PYQJ and video footage of her participation in individual and small group ABA therapy at AP. PYQJ’s parents did not give A/P McDowell the opportunity to discuss or meet with PYQJ or with them. Instead, PYQJ’s representatives provided A/P McDowell with “a large volume of academic referenced material”, as set out in Appendix 2 of his report.
The objection of PYQJ’s parents to make themselves available to have a meeting or discussion with A/P McDowell was unfortunate, and a matter of concern for the Tribunal. The objection was particularly concerning in the context of PYQJ’s parents seeking to rely upon functional assessment reports authored by an owner and employee of AP, containing recommendations that PYQJ receives substantial and costly services from AP. Those reports raised immediate questions about the objectivity of the experts making such recommendations.
A/P McDowell prepared a report dated 15 March 2022 (A/P McDowell’s Report) and a supplementary report dated 3 April 2022 (A/P McDowell’s Supplementary Report).
In A/P McDowell’s Report, A/P McDowell provided the following opinions:
(a)the documentary information he had been provided with, in respect of PYQJ, was consistent with a diagnosis of ASD, but he was not convinced about the severity of Level 3, stating this may have been true in the past but not necessarily for the present;[31]
[31] Refer A/P McDowell’s Report, paragraphs 4.1.1 and 4.1.2.
(b)he considered the “borderline” diagnosis of intellectual function may be “somewhat prematurely made”;[32]
[32] Ibid, paragraph 4.1.3.
(c)psychological testing (see T-Document T14) had found language as being a relative strength for PYQJ, whereas the majority of opinion described language as a relative weakness;[33]
[33] Ibid, paragraph 4.1.3.2.
(d)there had been a clear response to intervention demonstrating her capacity to learn but it was difficult to map her trajectory of change against normal developmental change;[34] and
[34] Ibid, paragraph 4.1.3.3.
(e)he considered that a diagnosis of GDD is a reasonable description of PYQJ’s current development situation.[35]
[35] Ibid, paragraph 4.1.4.
A/P McDowell was requested to provide his opinion about whether he considered the funding or provision of ABA therapy is likely to be effective and beneficial to PYQJ, having regard to current good practice, to which he stated as follows in his report (emphasis added):
4.2.2.2I would regard ABA to be both effective and beneficial for a limited range of outcomes. Specifically, it is a proven methodology to achieve outcomes which can be defined, trained and acquired, in behavioural terms.
4.2.2.1.1Examples in the videos included pressing screen software buttons for requesting. Examples more generally include daily living skills (e.g. dressing, feeding, toileting) and expressive communication skills (verbal and non-verbal).
4.2.2.2I do not consider the ABA program as undertaken to be value for money. The centre based program package structure, in my opinion, is an inefficient methodology to achieve these outcomes.
4.2.2.3I do not consider the ABA program as undertaken and proposed to be current good practice with regards to methodology. My reasons include:
4.2.2.3.1The calculation of hours, as I read the information, is determined by service defaults, and not based on individual child need. I note in the Applicant bundle [Tab 3 Page 312] “.. (PYQJ) is unable to access an in-center ABA program at lower cost, because of the logistical problem of a lack of ABA centers in which we live in, let alone being able to access ones who offer lesser hours”. To my reading, this indicates the current centre does not offer flexible treatment options.
4.2.2.3.2Standard Early Childhood Behavioural Intervention (ECBI) recommendations stress the concept of ecological, or home based therapy ( and ). This approach has been explicitly endorsed by the NDIAC. I do not consider the program proposed to be naturalistically or ecologically constructed. Reasons include the fact that there is little mention of the Father’s involvement, although he was active in the child’s care in the videos. He is an important figure in the life of a female child with ASD. As noted above, the applicant’s mother indicated a preference not to utilise home-based supports due to risk of infection, however I consider infection risk to be higher with centre-based supports (more people). PYQJ is described as having emotionally driven problematic behaviour, and for this reason did not attend kindergarten. Whilst this was previously true, it would be my expectation that attempts would be made to integrate into kindergarten now she had learned to settle. Finally, it is my opinion that skills learned in a behaviourist methodology are learned to be undertaken in a specific situation. They do not generalise automatically into other life contexts.
4.2.2.3.3Extending on the issue of naturalistic therapy, I do not consider ABA as proposed to be relationship based to a meaningful degree. Motivation is achieved by tokens towards reward (e.g. books). Communication is predominantly for functional purpose (e.g. to get something). In the current program she has multiple relationships which, for her, will be transient. In my opinion, social learning occurs in the context of a meaningful relationship. I consider this to be very important when the core deficit of ASD is a struggle to understand people, and to build meaningful relationships.
In A/P McDowell’s Report, he states he supported both individual and small group intervention and that they will be more effective if they are “naturalistic” (that is, with people who have meaningful relationships with the child).[36] A/P McDowell raised his concern, in reference to the LL Program, about “the professional isolationism of the system generally” and that it worked to a considerable degree outside of normal networks of communication and collaboration. He states, “In my opinion, this has a set of consequences potentially detrimental to the child. This is because there is little oversight externally, and no benefit from collaborations that otherwise may be helpful”.[37]
[36] Ibid, paragraph 4.2.3.1.1.
[37] Ibid, paragraph 4.2.3.1.2.
A/P McDowell was requested to state his opinion in his report about the appropriate level/s of ABA therapy for PYQJ (if any) expressed in hours per week, and to provide his reasons. He provided the following opinions:
4.2.4.1 I begin with questioning the proposition that funded hours are a mathematical predictor of outcome. Using the analogy of acquiring a skill such as piano, teacher hours guide what is practised. Skill acquisition outcomes relate to practice hours.
4.2.4.2 In my opinion, the calculation of hours begins with naturalistic supports – family, friends, local educational institutions. These are people who, in a ‘train-the-trainer’ model can provide intervention.
4.2.4.3 I would next consider home based therapy assistance of a paid nature. Such support can assist not only with therapy interventions at home, but also reducing the stress load on the family. My reading of the materials provided indicates a significant stress load for this family.
4.2.4.4 With a set of people to ‘do the work’, only then would I consider paid therapist professional guidance. This is necessary to train, supervise, modify and support. It is calculated on individual child need. For PYQJ, I would add speech pathology (due to presumed oromotor dyspraxia), and a professional trained in relationship development to behaviour therapy to achieve a reasonable balance. The frequency of these is determined by the frequency of necessary review and program resetting (as with a music teacher).
4.2.4.5 Such a model of intervention is constructed around the capacity of the child, available local supports and other individualised factors. If the question asks for a reasonable numeric average, I would defer to existing NDIS precedent of 18 hours per week with 2 hours of speech Pathology (WKZQ, [2019] AATA 1480 and FRCT [2019] AATA 1478).
A/P McDowell prepared his Supplementary Report after having been provided with the expert reports prepared by Dr Leif and Ms McKinnon. A/P McDowell confirmed that those reports did not cause him to change the opinions he set out in his first report. He confirmed that he considered ABA therapy to be effective and beneficial, but the ABA program (proposed by PYQJ’s parents) is not “value for money” because it is “inefficient” due to “the relative lack of incorporation of local supports in the methodology”. A/P McDowell states:[38]
In my opinion, ABA is a very inefficient methodology to achieve outcomes that, in my opinion, are constructed primarily within relationships. Examples include social theory of mind and meaningful emotional reciprocity. I consider such outcomes to be of central importance for children who carry the social impairments of Autism Spectrum Disorder, separate to the functional outcomes that can be achieved through behavioural training.
[38] Refer A/P McDowell’s Supplementary Report, paragraph 2.1.2.1.2.
A/P McDowell states, in his Supplementary Report, that he does not agree that parenting and ABA therapy are different activities. He states, “In my opinion and professional experience, therapeutic activity can readily and effectively be incorporated into parenting. Mood regulation, eye contact and language-based communication in the course of parenting activities I consider to be a self-evident example”.[39] He also disagreed that therapy required “professional technical skills” and that parents are unable to learn such skills. He said this proposition was against his professional experience. Instead, A/P McDowell said that (emphasis added):[40]
some of the most innovative and effective strategy I have observed in therapy has been the outcome of parental experimentation with different methodologies, learning empirically what works best for their individual child in the unique environment of each family, and towards specific therapeutic outcomes. In my opinion, professional formalism inhibits this ecological experimentation.
[39] Ibid, paragraph 3.1.3.1.
[40] Ibid, paragraph 3.1.3.3.
In A/P McDowell’s Supplementary Report, he states that he did not consider the question of “centre-based or naturalistic”, as an “all or nothing” question. He states that different parents and families had “widely different capacities”, and that it was a question of “priority and value”.[41] He states that the primary intention should be to build the capacity of the parents and the family to the most reasonable extent possible, and that the “expert” models “run the risk of disempowering parents toward this goal”.[42] He said the “parent education” he observed in the videos showing PYQJ at an AP centre, was “constructed around demonstration of how the AP program achieves goals” and “does not necessarily enable parents to understand why, or encourage parents to develop bespoke adaptations and solutions in the home”.[43] He explained that when early intervention (EI) is set up with family empowerment in mind, the children are more likely to continue to do well when the EI program ceases.
[41] Ibid, paragraph 3.1.3.3.
[42] Ibid, paragraph 3.1.3.5.
[43] Ibid, paragraph 3.1.3.7.
When A/P McDowell gave evidence at the hearing, he told the Tribunal he was unable to make a specific recommendation about an EI program for PYQJ because he did not have the information necessary to do so. He explained that if he were treating PYQJ, he would adopt the following process:[44]
(a)determine the capacity of her family and local supports;
(b)assess what PYQJ can do and how much she can learn;
(c)construct an EI program from the “local supports upwards”; and
(d)determine the amount of paid therapy, which he said would vary on a case-by-case basis.
[44] Refer Transcript, P-185.
A/P McDowell explained that his reference to 18 hours of ABA therapy per week in his report, was a reference to the number of hours that had been found by the Tribunal in other applications as being reasonable. He said he did not intend for it to be a recommendation applying specifically to PYQJ.[45]
[45] Ibid, P-186 & P-187.
A/P McDowell sought to dispel any presumption that the intervention needed to happen in the home environment. He clarified that he had recommended the home environment is the “first place” where therapy is constructed, to see what is possible, and then, he said, you build on top of that.[46] PYQJ’s representatives state that PYQJ’s participation in therapies had accorded with this advice from A/P McDowell, in that she had attempted to attend both mainstream kindergarten/early learning centre, and ABA therapies in the home, delivered by SBH between 12 and 18 hours per week.[47] In addition, PYQJ has also received speech therapy, occupational therapy (OT) and music therapy.
[46] Ibid, P-188.
[47] Refer PYQJ’s Closing Submissions, paragraph [17] and PYQJ’s HTB, Pages 218, 199-200 and 245-253.
The Tribunal found A/P McDowell to be an impressive witness and preferred his evidence, generally, over the two AP experts and Dr Leif. However, he was blocked by PYQJ’s parents from assessing PYQJ and could not make a specific recommendation as to the number of hours of ABA therapy that should be provided to PYQJ or how that therapy should be undertaken, that is, whether it should be delivered at home or in an AP centre or a combination of both. He was only able to make general observations, which the Tribunal accepts, and has taken on board. Unfortunately, however, those general observations do not enable the Tribunal to progress toward making a decision, based on A/P McDowell’s opinion, about what supports are reasonable and necessary supports for PYQJ, due to the non-specific nature of his opinions.
The Tribunal shares A/P McDowell’s concerns about whether the LL Program offered by AP might be considered current good practice, when it was not apparent that it had been tailored to each child or that a family-centric approach had been adopted in the delivery of the ABA therapy.
Ms PYQJ’s evidence and PYQJ’s lived experience
PYQJ’s mother states that PYQJ had trialled three different early childhood settings. It was asserted by Ms PYQJ that those strategies for PYQJ were ineffective and SBH had determined that considering PYQJ’s personal and family circumstances, she required more significant supports.[48] Specifically, SBH made a recommendation that it was imperative that PYQJ receive increased intensive ABA intervention, to facilitate her progress at a level of 27.5 hours per week, in addition to behavioural consultancy services and ongoing speech pathology. PYQJ relies upon SBH’s advice at the time that PYQJ graduated into a program such as the LL Program at AP, being an intensive program in a “controlled environment” which SBH considered PYQJ “largely requires”.[49]
[48] Refer PYQJ’s Closing Submissions, paragraph [17].
[49] Refer PYQJ’s Closing Submissions, paragraph [18] and PYQJ’s HTB, Page 255.
PYQJ’s mother prepared a Statement of Lived Experience dated 14 January 2022 (PYQJ’s SLE). Ms PYQJ states as follows about the benefits that she says PYQJ has received from the LL Program:
It has only been 11 months since PYQJ has been attending Autism Partnerships but she has made the most amazing and unprecedent progress. This progress is most evident not from our perspective, but from those of her grandparents, uncles and aunties. Her grandparents and uncles were sceptical about PYQJ attending a “school for disability,” and voiced their concerns that she would become more disable being around children with these developmental problems. In their mind, they thought it was a disability centre, which it is not. According to these sceptics, PYQJ is now ‘smiling more’, ‘not upset anymore,’ ‘calmer’, ‘changed so much (better)’. She is more willing to engage with adults and children around her, is more aware of herself and her environment (though she requires substantially a lot more therapy to get to the level of her peers).
Ms PYQJ’s states that this is supported by the “best practice recommendations” referred to by Ms Gulliford and A/P McDowell based on the article by Prior M. and Roberts, J. Early Intervention for Children with Autism Spectrum Disorders: Guidelines for Good Practice (2012) (Prior & Roberts 2012) which states that “The amount of intervention is usually described as a number of hours of treatment per week. Fifteen to twenty-five hours per week is generally recommended for autism early intervention in the research literature, with some programs recommending as much as 40 hours per week”. PYQJ’s representatives draw the Tribunal’s attention to the following statement by the authors in the Prior & Roberts 2012 article (emphasis added):[50]
To help children with autism it is essential to focus on the earliest years of development, since this is a critically important time for early learning which powerfully affects the child’s future life course.
[50] Refer PYQJ’s Closing Submissions, paragraph [39] and PYQJ’s HTB, Page 48.
Recommendation by Ms Brekalo, treating speech pathologist
PYQJ’s representatives also rely upon a recommendation made by PYQJ’s treating speech pathologist, Ms Shantel Brekalo, who prepared two reports on 3 May 2021 and 7 May 2021, respectively. Ms Brekalo recommended in her 7 May report that there was evidence to suggest that programs must have sufficient intensity, referring to recommendations made by the Agency for Healthcare Research and Quality (AHRQ) that greater than 15 hours per week be allocated for early behavioural and developmental intervention based on ABA principles, and the recommendation in the Prior & Roberts 2012 article that between 15 and 25 hours of EI per week be provided to children such as PYQJ.
Ms Brekalo recommended “a full 25 hours” per week, given the “profile of characteristics” of PYQJ.[51] Ms Brekalo is a speech pathologist and not an occupational therapist. The Tribunal treats this opinion with a degree of caution as the type of recommendation made by Ms Brekalo would seem to fall outside her area of specialisation.
[51] Refer PYQJ’s HTB, Page 214.
Recommendation by AP Clinical Director, Ms McKinnon
At the LL Program intake stage, AP conducted an assessment of PYQJ’s individual needs. Ms McKinnon sought to explain at the hearing why it had been determined that PYQJ should receive her ABA therapy treatment at the AP clinic, rather than in her home. Ms McKinnon explained that therapy in a home setting had already been trialled by PYQJ. Although she said there was “some success”, SBH had recommended more intensive supports “in a controlled environment” (see paragraph [71] above).
Ms McKinnon referred to PYQJ’s family circumstances and the family’s preference for a centre-based model to assist PYQJ in transitioning to mainstream schooling, by learning to separate from her mother and by learning appropriate behaviours for a school environment. Ms McKinnon’s opinion that centre-based ABA therapy would have been “very therapeutic” and “beneficial” for PYQJ in terms of her goals, was informed by a discussion she had with PYQJ’s mother who had told her she had “failed” at a sessional style model in the home environment, and there had been a big impact upon their family and PYQJ’s younger brother. Ms McKinnon said she did not think PYQJ needed to go up to the intensity of 33/34/35 hours per week, due to there being no evidence at that time this intensity was needed, but she did think the next level down (that is, the 27-hour-per-week program) would be beneficial for PYQJ.[52]
[52] Refer PYQJ’s Closing Submissions, paragraph [21].
PYQJ’s further contentions
PYQJ’s representatives also rely upon recommendations made by PYQJ’s treating psychologist and paediatrician, recommending a minimum of 20 hours of ABA therapy per week, and providing an overall consensus of approximately 25 hours per week based on their individual observations and assessments.[53]
[53] Ibid, paragraph [22b].
PYQJ’s representatives contend that the low-intensity home-based behavioural therapy is not a comparable support, from which a comparison (as contemplated under Rule 3.1 of the Support Rules) could be made. PYQJ’s representatives invite the Tribunal to consider the decision in Re FRCT and National Disability Insurance Agency [2019] AATA 1478 (FRCT), where the Tribunal, in that case, considered that a low-intensity home-based behavioural intervention was not a comparable support, to an intensive clinic-based ABA program. The Tribunal was also invited to consider the decision in Re XXWC andNational Disability Insurance Agency [2020] AATA 923 (XXWC) and the finding of the Tribunal in that matter that the participant’s SOPS should be varied to include Early Start Denver Model (behaviour therapy) (ESDM) for 18 hours week, together with a provision of a key worker, and an additional six hours and 18 minutes of planning, discussion, and supervision.
The Tribunal is not influenced by the decisions of Tribunal members in other applications. Given that the individual circumstances of each applicant seeking review by the Tribunal will vary because of their differing impairments, personal attributes, and circumstances, and differing environmental situations at home and in the community (not to mention there will be different sets of evidence placed before each Tribunal member), must be considered on a case-by-case basis to properly assess the applicants’ individual support needs. For this reason, this Tribunal has not been influenced one way or another in making this decision, based on a consideration of the Tribunal’s findings and decisions in either FRCT or XXWC.
Reliance upon lived experience and recommendation of Ms Gulliford, psychologist
PYQJ’s representatives contend that the Tribunal is able to make its decision in this application based on the actual experience about whether the Requested Supports are, or likely to be, beneficial for PYQJ, because she has already enrolled and commenced in the 4-day per week LL Program and can “demonstrate lived experience confirming the benefits of the supports”.[54] Further to evidence about PYQJ’s lived experience as set out in paragraph [72] above, PYQJ also relies upon the opinion of Ms Gulliford that she should continue with the 27 hours per week of early intervention, in addition to speech therapy and behavioural consultation, based upon her assessment of PYQJ and her needs, in addition to her knowledge about best practice therapies requiring a minimum of 20 hours per week.[55] At the hearing, Ms Gulliford said she considered the LL Program intervention and therapy suited to PYQJ’s support needs, given their complexity.[56]
[54] Ibid, paragraph [28].
[55] Ibid and PYQJ’s HTB, Pages 3 to 19.
[56] Refer Transcript, P-49 and PYQJ’s Closing Submissions, paragraph [28].
The Tribunal notes that Ms Gulliford has only examined PYQJ on one occasion, that is, on 10 April 2021 and when asked about this at the hearing, she acknowledged that she was only able to speak to PYQJ’s condition, as at that time. She noted that the severity of a child’s ASD could fluctuate over time.[57] It was also revealed a short time before the hearing, when she produced her curriculum vitae with the Tribunal, that she had previously been employed as a behaviour therapist with AP in 2012 and 2013. Ms Gulliford agreed that she had worked at AP but explained she had done so by being employed by a family which had coordinated their supports through AP.[58] Ms Gulliford’s association with AP was not disclosed in her expert report lodged with the Tribunal when it should have been.
[57] Refer Transcript, P-49 & P-50.
[58] Ibid, P-54.
The NDIA invites the Tribunal not to accept Ms Gulliford’s recommendation because she had offered no independent support for the 27 hours of ABA therapy per week required under the LL Program. Rather, the NDIA contended that she deferred to the service defaults of AP and made a bald assertion that the LL Program was appropriate for PYQJ.[59] Ms Gulliford later admitted that she only had limited knowledge about the LL Program. Ms Gulliford was also unable to provide references to literature articles in support of her recommendation when asked to do so at the hearing.[60]
[59] Refer NDIA’s Closing Submissions, paragraph [7].
[60] Refer Transcript, P-52.
Finally, the NDIA contends that Ms Gulliford’s independence as an expert witness is “substantially undermined” due to her pre-existing relationship with AP.
The Tribunal agrees with NDIA’s contention that limited weight should be placed on the recommendation of Ms Gulliford, primarily because she could not explain, when asked at the hearing to do so, any rational basis for why she had recommended 27 hours of ABA therapy week over any other number of hours for this type of therapy. Because there was no clear clinical reasoning behind her recommendation and because Ms Gulliford had only ever examined PYQJ on one occasion, the Tribunal places very little weight on Ms Gulliford’s evidence about how many hours of ABA therapy should be funded under PYQJ’s NDIA plan.
Reliance upon research study
PYQJ’s representatives also rely upon the study of Smith, Groen, and Wynn (2000) described by them as follows:[61]
The authors conducted a randomised controlled clinical trial of ABA therapy and parent-delivered therapy. The children in the ABA group received 25 hours per week of ABA therapy over a 2-year period, whereas the children in the Parent training group received 2 hours of in-home family training in ABA per week. At follow-up, the ABA group scored significantly higher than Parent group on tests of IQ, visual-spatial learning, language, and academics. The ABA group children gained an average of 16 IQ points, while the Parent group lost an average of 1 IQ point.
[61] Refer Footnote 31 in PYQJ’s Closing Submissions (at paragraph [29]).
In this study, only two hours per week of in-home family ABA per week were provided, compared to 25 hours per week of ABA therapy. For this reason, the Tribunal notes that this study is testing the “delegated model of therapy” approach, rather than being a good indication as to what level of ABA therapy is beneficial for a child with ASD. Accordingly, the Tribunal considers that this does not have relevance to this application. The NDIA has accepted that the provision of ABA therapy to PYQJ is effective and beneficial, but the question now is how many hours of ABA therapy should be funded before it gets to a point where any additional hours would not be effective and beneficial for PYQJ or represent “value for money”.
AP assessments as to PYQJ’s progress
PYQJ contends that the effectiveness and benefits of the Requested supports are demonstrated by the gains to PYQJ personally, as highlighted in a graph prepared by AP representing the change in her skill level “by age appropriateness” over a time line, spanning from 24 months (before any form of therapy was delivered to PYQJ) to 32 months (after two months of home-based ABA and nine months of speech pathology; to 36 months (after 6 months of home-based ABA and 12 months of speech pathology); and to 47 months (after one year of LL Program – that is, in February 2022).[62]
[62] Refer PYQJ’s HTB, Pages 89 – 90.
The graph indicates that PYQJ’s level of receptive language had improved to an age-appropriate level, and PYQJ’s level of visual reception was only delayed by seven months. The graph shows a slight increase in PYQJ’s level of expressive language but that she was at a level appropriate for a 16-month-old at the time PYQJ was aged 47 months. PYQJ’s fine motor skills have only been measured at ages 36 and 47 months, and the graph shows a step up in level equivalent to about five months.
Mr PYQJ’s view that LL Program is valuable
PYQJ’s mother gave evidence at the hearing that she considered the LL Program to be “so valuable” that they would “somehow” support PYQJ’s participation, even at a significant sacrifice to the family’s financial stability. At the hearing, Ms PYQJ gave evidence that her family operated a pharmacy business in Suburb B, but she said that this is a “very low socioeconomic area”, and the pharmacy is located in a “run down shopping centre”. When asked whether the business operated at a profit, Ms PYQJ responded that it is “just enough to live on”.[63] Ms PYQJ said that rather than paying off the pharmacy debt, they would just be paying for PYQJ’s therapy and that her NDIS plan at the time, containing 12 hours of funding for ABA therapy per week, was insufficient to pay for the LL Program.[64] Ms PYQJ said if they continued to be funded for only 12 hours of ABA therapy per week, she would have to ask her husband about the impact on the family’s finances as he deals with the finances, but he says that “we’ll be stuffed”. Ms PYQJ said they would have to borrow money from the parents, who had some savings left.[65] Ms PYQJ also said their family owns the home that they live in, but they have a mortgage. She was unable, however, to provide an approximate figure as to the debt they are owing and that she would have to ask her husband.[66] There were no details provided about the outstanding balance on the mortgage in PYQJ’s Closing Submissions lodged after the hearing.
[63] Refer Transcript, P-68.
[64] Ibid, P-59 & P-60.
[65] Ibid, P-60.
[66] Ibid, P-68.
PYQJ highlights that the objectives of the NDIS Act are to enable people with disability to exercise choice and control in the pursuit of their goals, the planning and delivery of support and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.[67] Further, PYQJ’s representatives contend those objectives are supported by s 4 of the NDIS Act which set out the following general principles guiding actions under the NDIS Act including:
[67] Refer PYQJ’s Closing Submissions, paragraph [33].
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports
…
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment
…
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.
PYQJ has capacity to learn and other benefits of LL Program
PYQJ’s representatives highlight that A/P McDowell considers that PYQJ has “intellectual competencies” and is able to learn, but a “really big problem for her” is her expressive language. PYQJ’s representatives contend that the LL Program, designed to address such challenges, which has “already been demonstrated to be highly effective in many areas”, must be seen as giving PYQJ the “best shot” from an educational perspective.[68]
[68] Refer PYQJ’s Closing Submissions, paragraph [38].
PYQJ’s representatives contend as follows (emphasis added):
40.Further, if alternative supports were provided in a piecemeal manner at the same intensity, the costs would be similar (if not more) and the outcome not likely to be as effective, as there would be a lack of coordinated service provision, and potential distress to the Applicant in receiving services in a wide variety of settings.[69] For example, pulse meetings between the behavioural consultant (Mr Quattrocchi) with the senior Behavioural Consultant Kathleen Franks, the clinical psychologist Karen McKinnon and the BCBA Emily Gray, are not charged to the Applicant.[70] Further, both PYQJ’s behavioural therapists work in the same communal learning area, which means their work is transparent to each other and others in the centre, which is accountable and avoids duplication. Further, the Floor Lead is ‘responsible for the day-to-day running of intervention’,[71] that ensures programs are run efficiently and effectively; they are not costed into PYQJ’s fee schedule.
[69] Exhibit A2, p 120, para 40 [Reply Affidavit of Ms McKinnon].
[70] Exhibit A2, p 77, para 28 [Reply Affidavit of Ms McKinnon].
[71] Exhibit A1, Page 230.
At the hearing, the Tribunal sought to understand from Ms PYQJ what she understood about the extent of Mr Quattrocchi’s interactions with PYQJ at AP. Ms PYQJ told the Tribunal she did not know, because she did not go into the AP centre. Ms PYQJ referred to some meetings. Otherwise, she said, “…beyond that I wouldn’t know because that’s [Mr Quattrocchi’s] job to know”.[72]
[72] Refer Transcript, P-40.
In relation to PYQJ’s attendance at kindergarten, Ms PYQJ confirmed that she is not permitted to attend with PYQJ (and sits in the car while she is there) because the AP therapist is in attendance with PYQJ in the kindergarten classroom. This response by Ms PYQJ revealed that the approach taken by AP in the LL Program was not family centric, if Ms PYQJ does not have an understanding about what the key ABA practitioner is doing with PYQJ when he interacts with her or is not involved in the day-to-day provision of therapy in such a manner so at to integrate or embed the therapy within her relationship with PYQJ (as contended for by the NDIA).[73]
[73] Refer NDIA’s Closing Submissions, paragraph [57].
There was consistent evidence that Mr PYQJ does not have any involvement in the delivery of the ABA therapy, and that instead he works six days a week in the pharmacy, from early in the morning until the end of the working day. Both Mr Quattrocchi and Ms McKinnon confirmed they had not met PYQJ’s father. The NDIA highlighted the following exchange that took place at the hearing with Ms McKinnon about this:[74]
[74] Refer Transcript, P-121 & P-122.
MS ROBERTS: Returning now to the (indistinct), have you ever spoken with the applicant's father?
MS McKINNON: I haven't.
MS ROBERTS: Did you accept that that means that the program's ability to assist in developing the relationship between PYQJ and her father is consequently limited?
MS McKINNON: I don't know.
…
MS ROBERTS: One of the criticisms of the treatment (indistinct) is that it is not sufficiently relationship based and that it is isolated from her life outside of the program. How do you respond to that?
MS McKINNON: Yes. I would respond with two points. So, one is that building relationships is the heart of ABA, it's what we do, it's the first thing that we do is build relationships between a child and all of the other people that are important to them, so it's done all day every day with PYQJ. We're building the skills for her to then have those relationships with other people in her life. The other part of that is that time that Ms PYQJ spends actually on working on that and helping that with her family. So, she spends so much time with PYQJ, she follows through on all of those recommendations about how to engage with her socially and I've seen video of her drawing in cousins and getting her connected with family members as a result of that. I don't think that it's isolationist in general, but I also think for PYQJ that is really not true.
MS ROBERTS: But despite it being at the heart of the program to develop relationships between participants and key adults in their life, or individuals of their life, it's not the view of Autism Partnership that it is important to ever meet or speak with the applicant's father?
MS McKINNON: No, and I haven't met with PYQJ's younger brother either, but we still build relationships for PYQJ and her brother to interact with each other.
TRIBUNAL: How do you achieve that, Ms McKinnon, if you don't know anything about the characteristics of either the father or the brother? How do you do that in an effective manner?
MS McKINNON: Yes. So, Matthew does that through his interactions with Ms PYQJ, so she (indistinct) will talk about, this is the nature of the relationship between PYQJ and her sibling, I would like them to connect more. She and Matthew would then design ways to make that happen. The same thing has happened with PYQJ's dad where Ms PYQJ has said I want this to happen, I want you know their relationship to be better. So, Matt would say, here's some things that you can do to build her eye contact or her participation with any member of the family. Ms PYQJ is really the conduit for all of that and it's just - I'll go back to my other point where it's common for families to delineate responsibilities that way.
MS ROBERTS: How do you know if it is working if the only information source that you have is one person? ---
MS McKINNON: Are you talking specifically about the relationships?
MS ROBERTS: Yes. How do you know if the relationship between the applicant and her father is improving if you are only privy to information about that relationship through the applicant's mother? ---
MS McKINNON: Yes. I mean that's (indistinct). We haven't had time with him yet. We have had video feedback from Ms PYQJ about the relationship between PYQJ and her brother that shows the improvement in that. We can, if that's deemed necessary, take that information and gather that information, but it hasn't felt like it's been warranted at the moment."
The NDIA contends that in the absence of any engagement with PYQJ’s father, “there is simply no way” that AP could satisfy themselves their strategies were “effectively building a relationship” between PYQJ and her father. The NDIA was concerned that Ms McKinnon had indicated she did not consider that direct communication with PYQJ’s father was warranted.
The Tribunal shares the NDIA’s concern in this regard and considers that based on A/P McDowell’s evidence, AP could optimise the effectiveness of the ABA therapy by ensuring PYQJ’s family members are properly integrated into the ABA therapy being delivered to PYQJ. While this is an apparent shortcoming of the LL Program, the Tribunal does not consider that the lack of integration of PYQJ’s family members into the program, renders the ABA therapy being delivered to PYQJ ineffective, or that it is not beneficial for PYQJ. The Tribunal considers that the current centre-based ABA therapy is providing a benefit to PYQJ, but the question remains as to how many hours should be funded and whether the associated services (for instance, additional hours for consultation between AP staff), are reasonable and necessary supports.
Evidence by Dr Leif
Dr Leif gave evidence at the hearing that within the field of ABA, a tiered model of support is utilised because it is more cost-effective than having a Board-Certified Behaviour Analyst (BCBA) deliver all the therapy directly. This involves having an allied health practitioner or BCBA supervising the program, who can collaborate with the parents and work in partnership with them, to define the program goals and deliver the individualised teaching strategies and behaviour support strategies. The supervisor plays a role in coaching the behavioural therapist or therapy assistants (which she said might include a parent).[75]
[75] Refer Transcript, P-151.
Dr Leif also explained what the implementation of an ABA program might involve. She said that generally, it involves “creating lots of opportunities for children to practice skills; providing prompting or scaffolding and then fading out that level of help in a systematic way; providing a lot of positive feedback for demonstrating new skills; and recording data on the child's performance during individual teaching sessions”. Dr Leif said the “therapist or parent would participate; usually in monthly meetings or monthly overlapping sessions with the programme supervisor to discuss the topic of progress and receive ongoing or on the job coaching in implementation”.[76]
[76] Ibid.
At the hearing, the closeness of Dr Leif’s connection with AP became apparent. She gave evidence that she frequently lectured students at Monash University who went onto work at AP, such as Mr Quattrocchi. She also said that she had referred graduates to AP in the past and discussed the possibility of establishing an internship program, although this did not transpire. Dr Leif is on the Board and Vice-President of an organisation by the name of Autism Pathways, which provides training to and hosts conferences for ABA providers. As pointed out by the NDIA, Dr Leif had corresponded with AP staff regarding the preparation of an ABA conference sponsored by AP, and for other purposes.[77]
[77] Refer NDIA’s Closing Submission, paragraph [34(b)].
Dr Leif was asked about her report dated 1 January 2020, tendered in this proceeding, but which pre-dated the lodgement of this application. Dr Leif said the purpose of this report was to synthesise some of the current research evidence, as well as Australian practice recommendations for supporting individuals with autism. She said she prepared it for her own background and to share it with service providers and parents.[78]
[78] Refer Transcript, P-138 & P-139.
The Tribunal accepts each of these three contentions and does not place any significant weight upon the views of A/P Connell. It was unfortunate that he was not called as a witness at the hearing to provide an opportunity for his evidence to be tested.
Comparable supports
The NDIA contends that the cost of the LL Program, which was quoted by AP as costing $164,232.72 per year inclusive of the associated supports, is a substantial sum of funding. When it comes to assessing whether these requested supports represent value for money, the NDIA and PYQJ’s representatives agree that Rule 3.1(a) of the Support Rules requires a consideration of whether there are “comparable” supports that would achieve the same outcome at a lower cost. PYQJ’s representatives contend that a lower-intensity support delivered in the home environment, could not be considered a comparable support to a higher intensity support delivered in a centre.[106] The NDIA considers that this contention is misconceived because Rule 3.1(a) requires that an assessment of whether a support is “comparable” requires consideration of whether it would deliver comparable results, and not whether the method or mechanism by which those results are achieved is comparable.[107] The Tribunal agrees.
[106] Refer NDIA’s Closing Submissions, paragraph [76].
[107] Ibid, paragraph [77].
The NDIA contends that the support sought is not value for money and that the appropriate comparator is that proposed by A/P McDowell, representing current good practice in the provision of ABA therapy. That is, it would be appropriate for a provider to engage fully with the family and PYQJ's informal supports and to provide training to those individuals with a "train the trainer" approach. The NDIA contends that the predominant provider of those supports would then be PYQJ's parents, with assistance from a therapy assistant if required, and regular review by a behaviour practitioner. The NDIA contends that this model proposed by A/P McDowell, “apart from being more consistent with current good practice, would be considerably cheaper, costing the NDIS approximately $97,510.00 (including an additional two hours of speech pathology) as opposed to the $164,232.72 sought by the Applicant”.[108] The NDIA contends that at least from a cost perspective, therefore, the approach proposed by A/P McDowell is “preferable” to that proposed by AP.
[108] Ibid, paragraph [81].
The NDIA contends there is no evidence to suggest that the model proposed by A/P McDowell would be any less effective in terms of the benefits for the Applicant's development. The NDIA contends that, to the contrary, his proposed alternative model would be more effective for the Applicant in the long run, having regard to the Applicant's capacity to develop communication and social skills through a “more naturalistic model”.
PYQJ’s representatives contend that the Requested Supports are “clear value for money, as the financial investment in early interventions can prevent or at least significantly reduce the need for extensive future supports, such as specialist schools and ongoing reliance on a disability support pension and the public purse”.[109]
[109] Refer PYQJ’s Closing Submissions, paragraph [34].
In conclusion
The Tribunal is satisfied that due to the family circumstances of PYQJ, namely, that she has a younger brother in the home who has his own care needs, the father is largely absent from the home due to the demands of running the pharmacy and his mother’s apparent experience of high levels of anxiety, that it is appropriate at the moment for PYQJ to be provided with centre-based ABA therapy and that it is, or likely to be, effective and beneficial for her.
In terms of the number of hours of ABA therapy that should be provided to PYQJ, the Tribunal notes that the expert witnesses relied upon by PYQJ provided recommendations as to the level of ABA therapy and other supports, that PYQJ should receive. However, the Tribunal does not accept their evidence for the reasons described above.
The Tribunal was greatly impressed by A/P McDowell as an expert witness called by the NDIA. However, he clarified at the hearing that he was unable to make a recommendation as to the specific number of hours of ABA therapy that PYQJ should receive, as he was denied the opportunity to make an assessment of PYQJ or to speak to her parents.
What remains are the broad recommendations as set out in the Roberts & Williams 2012 article that between 15 and 25 hours of ABA therapy for a child with ASD may be appropriate. Ordinarily, the Tribunal would prefer to make its decision based upon specific recommendations from experts about supports under consideration for an Applicant. However, in the unique circumstances of this case in the absence of any specific recommendation that the Tribunal is willing to accept, the Tribunal finds that the midway point between the range recommended by Roberts & Williams 2012, being 20 hours of individual ABA therapy per week, is likely to be effective and beneficial for PYQJ and represents “value for money”.
The Requested Supports also include the following:
(a)12 hours per month of consultation from a “Behavioural consultant to consistently review progression, develop individualised goals, and work with the family to build skills for integration of the skills learned by [PYQJ] in the ABA program into her home life and broader community”;
(b)12 hours per month from a "behavioural therapist" to attend fortnightly team meetings (shared between two therapists);
(c)8.5 hours of standardised assessment with a psychologist; and
(d)6 hours for the provision of an NDIS progress report from a behavioural consultant and speech pathologist in addition to the one hour per week of speech pathology agreed between the parties.
Dealing first with the request for one hour per week of speech pathology referred to in subparagraph [137(d)] above, the parties agree this should be funded. The Tribunal is satisfied this support is effective and beneficial and represents “value for money”. The Tribunal also considers the requested six hours for an NDIS progress report as likely to be effective and beneficial and represent “value for money”.
Regarding the request for 8.5 hours for a psychologist to prepare a standardised report, the Tribunal considers that this would be effective and beneficial but only if it is prepared by a psychologist who has no connection or past or present involvement with AP. Subject to this condition, the Tribunal considers that this support is, or likely to be, effective and beneficial and represents “value for money”.
Regarding the two separate requested supports referred to in subparagraphs [137(a) and (b)] above, the Tribunal accepts that structured clinical team meetings and assessments should take place between AP staff (such as Mr Quattrocchi) and PYQJ’s therapists every month (AP Clinical Meetings) and considers it appropriate that PYQJ be funded a further 12 hours per month for the AP Clinical Meetings to occur. The Tribunal considers that both Mr and Ms PYQJ should both be invited to and should attend all AP Clinical Meetings to foster a coordinated approach and to:
(a)integrate PYQJ’s informal supports into the process of delivering appropriate interventions and strategies to maximise the potential of building PYQJ’s capacity; and
(b)to optimise the transfer of such intervention and strategies to the home environment by the actions of PYQJ’s parents.
Appropriate records should be made of the AP Clinical Meetings and also of any assessments made by AP staff as to PYQJ’s progress and her assessed support needs. The Tribunal does not consider it appropriate for the NDIS to fund any further consultations or meetings that might take place between Mr Quattrocchi and others within AP, such as individuals to whom he reports, or any other of AP’s in-house allied health therapists. The Tribunal considers such meetings to be organisational in kind and should be absorbed as part of the usual running costs of a large organisation such as AP. Further, the Tribunal considers that it is preferrable and likely to be the most beneficial to PYQJ that her treating allied health professionals are independent of AP so their opinions and recommendations made in respect of PYQJ and her support needs, can be relied upon by PYQJ’s parents, the NDIA and other decision-makers, as being objective.
The Tribunal appreciates that its decision to approve funding for 20 hours per week of ABA therapy does not provide sufficient funding to cover the 27 hours per week required under AP’s terms and conditions for the LL Program. However, the Tribunal considers this to be an administrative issue which is wholly separate from the question of what level of certain supports are “reasonable and necessary supports” for PYQJ under s 34(1) of the NDIS Act. It is open to AP to be more flexible in its program offerings by permitting PYQJ to participate in the program on the basis of attending 20 hours, instead of 27 hours per week. Alternatively, PYQJ’s parents are at liberty to make up the difference (as Ms PYQJ has indicated they are prepared to do), or to seek out and enrol PYQJ in a different program offered by AP or an alternative provider which will allow her to attend an ABA centre in 2023 and be given 20 hours per week of individual ABA therapy. Assessments made under s 34(1) of the NDIS Act should not be influenced by the terms and conditions specified by any service provider.
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 of what it is reasonable to expect families, carers, informal networks, and the community to provide. Given PYQJ 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 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 the Requested Supports. Instead, the Tribunal will consider whether the 20 hours of individual ABA therapy per week, one hour per week of speech therapy, 12 hours per month of AP Clinical Meetings with PYQJ’s parents, 6 hours for the preparation of an NDIS progress report by a behavioural consultant and speech pathologist and 8.5 hours to fund a standardised assessment by a psychologist (which the Tribunal will refer to collectively as the Alternative Supports) have taken into account the matters referred to in s 34(1)(e). The Tribunal considers that they do and that this criterion is met.
The evidence revealed that PYQJ’s care needs are substantially greater than those of a child of the same age. The Tribunal has considered that PYQJ’s mother has exhibited clear signs of anxiety in trying to manage the care needs of PYQJ, her younger brother, with little assistance being able to be provided by PYQJ’s father due to the demands of operating the family pharmacy. Based on the evidence of lived experience given by Ms PYQJ and that of A/P McDowell, the Tribunal is satisfied that the Alternative Supports will improve PYQJ’s capacity or future capacity and will reduce any risk to her wellbeing by teaching her strategies, including how to self-regulate her emotions and how to communicate with and build relationships with others in the community and her family.
The Tribunal concludes 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
The NDIA contends that when viewed holistically, the LL Program takes the appearance “less of a specialised intervention, tailored for the individual needs of children with ASD and more of a preschool or kindergarten”.[110] The NDIA highlights that Dr Leif had described the LL Program as a “specialist preschool setting”[111] and that it resembled a typical preschool environment that other typically developing children would attend. The NDIA also highlighted that Ms PYQJ had referred to the LL Program as a “school” when she was giving evidence.[112]
[110] Refer NDIA’s Closing Submissions, paragraph [92].
[111] Ibid making reference to Exhibit A2, Pages 42 and 47.
[112] Refer NDIA’s Closing Submissions, paragraph [93].
The NDIA contends that the precise nature of the LL Program is “decidedly unclear” and that while it purportedly provided therapy, its provision of ABA therapy is “unregulated by any Australian regulatory authority”.[113] The NDIS further contends:[114]
While advocating for children to obtain NDIS funding (and actively supporting them in challenging NDIS decisions), Autism Partnership is not a registered NDIS provider under the Act. In summary, Autism Partnership, and the Program particularly, sit outside current regulatory arrangements with little clear identification as to the services provided, apart from purportedly supporting children with ASD.
[113] Ibid, paragraph [95].
[114] Ibid.
The NDIA contends that A/P Connell, Mr Quattrocchi and Ms McKinnon had variously indicated that the LL Program was a pre-kindergarten preparation program, and for this reason, it placed this support “squarely” within the operation of Rule 7.9(a) of the Support Rules. This rule provides that the NDIS will be responsible for early interventions for children with disability (or developmental disability) which are specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports that are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education.
The NDIA contends that the exclusion referred to in Rule 7.9(a) is “reinforced” by Rule 7.10(a) of the Support Rules, which provides that the NDIS will not be responsible for meeting the early childhood education and care needs of a child with developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings.
The Tribunal considers that the NDIA’s contentions are premised on a confined view of the objectives of the ABA therapy being delivered to PYQJ at AP while she is participating in the LL Program. The Tribunal accepts there is a lack of clarity about what happens during therapy delivered at AP in the LL Program. The parents do not attend or participate. This much was clear from the evidence of Ms PYQJ, who told the Tribunal she did not know what happened during the program. At the hearing, the witnesses from AP sought to describe to the Tribunal what is involved in the delivery of therapy. The Tribunal gained an impression that the skills sought to be developed in PYQJ by attending the program are rudimentary life, self-care, and communication skills.
While there may be some overlap with developing skills necessary for PYQJ to be ready to attend a mainstream primary school, the Tribunal is satisfied that the skills being developed by PYQJ by undertaking ABA therapy, are more expansive than that and are likely to reduce her future support needs, which would otherwise require support from the NDIS in later years, being the type of early intervention for which Rule 7.9(b) of the Support Rules provides that the NDIS will be responsible. The ABA therapy delivered as part of the LL Program may resemble a preschool setting, but the Tribunal is satisfied that the children are delivered ABA therapy individually or in a small group, and this is to be distinguished from the types of activities and play that would ordinarily be engaged in at a preschool of neurotypical children.
The Tribunal has found that the Requested Supports 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 the Requested Supports. Instead, the Tribunal will consider whether the Alternative Supports meet s 34(1)(f) of the NDIS Act. Based on the matters set out above and, specifically, the findings made in the above paragraph as they relate to the delivery of centre-based ABA therapy, the Tribunal concludes that the criterion in s 34(1)(f) of the NDIS Act is met in respect of the Alternative Supports.
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 PYQJ (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)20 hours per week of individual ABA therapy for the period commencing on 2 March 2021 and to end on the Reassessment Date;
(ii)one hour per week of speech therapy for the period commencing on 2 March 2021 and to end on the Reassessment Date;
(iii)12 hours per month for the cost of the therapist and other practitioners to meet with both of PYQJ’s parents for the period commencing on 2 March 2021 and to end on the Reassessment Date;
(iv)6 hours per annum for the preparation of NDIS progress report(s) by a behaviour consultant and speech pathologist; and
(v)8.5 hours per annum to fund a standardised assessment by a psychologist; and
(vi)replication (on a pro-rata basis) of all other existing supports in PYQJ’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 PYQJ’s current SOPS.
| I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker |
.................[sgd].......................................................
Associate
Dated: 19 January 2023
| Dates of hearing: Date of final closing submissions: | 4, 5 and 6 April 2022 24 June 2022 |
| Counsel for the Applicant: | Mr Matthew Cobb-Clark |
Solicitors for the Applicant: | Burke & Associates Lawyers |
| Counsel for the Respondent: | Ms Claire Roberts |
| Solicitors for the Respondent: | Clayton Utz |
EXHIBIT LIST
Exhibit A1 Applicant’s HTB
Exhibit A2 Applicant’s Supplementary Bundle with Index
Exhibit A3 Curriculum Vitae of Mr Matthew Quattrocchi
Exhibit A4 Assessment Feedback Meeting 21 March 2022
Exhibit A4a Ms Karen McKinnon’s screening notes in respect of PYQJ
Exhibit A4b Ms Karen McKinnon’s feedback meeting notes in respect of PYQJ
Exhibit A5a AP 2020 - Behaviour Consultation ‘Service Information Booklet’ VIC
Exhibit A5b AP 2019/2020 – Psychology Consultation ‘Service Information Booklet’ VIC
Exhibit A5c AP 2022 – Speech & Language Pathology ‘Service Information Booklet’ VIC
Exhibit A5d AP 2022 - Little Learners Autism Program ‘Service Information Booklet’ VIC
Exhibit A5e AP 2022 – Home-Based Intensive Workshop Model ‘Service Information Booklet’ VIC
Exhibit A6a Curriculum Vitae of Ms Mikealah Peatling
Exhibit A6b Curriculum Vitae of Mr Ethan Bolk
Exhibit A7 Email exchange between Ms PYQJ and Dr Leif in February and March 2022
***
Exhibit R1 T-Documents
Exhibit R2 Supplementary Report of A/P McDowell dated 3 April 2022
Exhibit R3 Summonsed Material from Dr Leif
Key Legal Topics
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