QGYX and National Disability Insurance Agency (NDIS) - [2025] ARTA 1542

QGYX and National Disability Insurance Agency (NDIS) [2025] ARTA 1542 (11 August 2025)
Applicant:QGYX
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/9365

Tribunal:General Member A. Williams
Place:Hobart
Date:11 August 2025

Decision:The Tribunal varies the decision under review pursuant to section 105(b) of the Administrative Review Tribunal Act 2024 (Cth).

..................[SGD].................
General Member A. Williams
1.NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports –– request for funding of Applied Behaviour Therapy (8 hours per week) - funding for additional speech therapy (160 hours per annum) – funding for additional occupational therapy (82 hours per annum – funding for daily support worker assistance (28 hours per week) – funding for overnight support worker assistance (8 hours per fortnight) – request for extended plan (2 + years) – decision under review varied.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) (NDIS Supports) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024
Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
G v Minister for Home Affairs [2019] FCAFC 79 [18]
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Madelaine and National Disability Insurance Agency [2019] AATA 4025
National Disability Insurance Agency v WRMF (2020) FCR 415
Secondary Materials
National Disability Insurance Scheme Operational Guideline
Statement of Reasons

This application is about whether the Applicant, QGYX, can have her request for funding of additional supports by the National Disability Insurance Agency (the Agency) approved as part of her funded supports. QGYX seeks review of a decision made on 4 December 2023 by a “reviewer” under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’) (‘Decision Under Review’).[1] This decision confirmed an earlier decision by the Agency on 20 October 2023 not to approve such funding as part of her funded supports.
[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘TD’).
In this decision, I will refer to QGYX as either QGYX or the Applicant and her father as Mr QGYX or QGYX’s father.
I will refer to the Agency as either the Respondent or the Agency.
The Administrative Review Tribunal’s (‘Tribunal’) jurisdiction arises under s 12 of the Administrative Review Tribunal Act 2004 (Cth) (‘ART Act’), operating in conjunction with
s 103 of the NDIS Act.
For the reasons set out below, the Decision under Review is varied as the Tribunal is satisfied that QGYX has established the requested support meets the reasonable and necessary criteria under s 34(1) of the NDIS Act.
For the reasons set out below, the Tribunal is satisfied that the additional supports:
·4 hours per week of ABA therapy;
·65 hours per annum of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading QGYX and National Disability Insurance Agency (NDIS)

Details

AGLC: QGYX and National Disability Insurance Agency (NDIS) [2025] ARTA 1542
Case: [2025] ARTA 1542
Decision Date: 11 August 2025

CaseChat Overview and Summary

The Tribunal considered an application by QGYX’s father for a review of a decision by the National Disability Insurance Agency (NDIS) regarding the support provided to his daughter, QGYX, a child with autism. The father sought additional supports, including increased hours of speech and occupational therapy, additional Applied Behaviour Analysis (ABA) therapy, and support worker assistance, both during weekdays and on weekends. The Agency had denied the request, leading to the father's application to the Tribunal. The Tribunal needed to determine whether the requested additional supports met the criteria for being reasonable and necessary under the NDIS Act.

In reviewing the decision, the Tribunal considered the evidence and submissions provided, including the testimony of experts and the specific needs of QGYX. The Tribunal noted the importance of tailoring support to the individual needs of participants in the NDIS Scheme, and the necessity for ongoing assessment and adjustment of support plans. The evidence suggested that QGYX required more intensive support than currently provided to meet her developmental needs and to prevent caregiver burnout. The Tribunal found that the requested additional supports were necessary to ensure QGYX could achieve better developmental outcomes and that her family could maintain their well-being.

The Tribunal concluded that the requested additional supports, including increased therapy hours and support worker assistance, were reasonable and necessary under the NDIS Act. The Tribunal set aside the Agency's decision and directed that the requested supports be included in QGYX's plan. This decision recognised the unique needs of QGYX and the critical role that adequate support plays in her development and the well-being of her family. The Tribunal's decision emphasised the importance of a flexible and responsive approach to support planning under the NDIS.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons set out below, the Tribunal is satisfied that the additional supports:·4 hours per week of ABA therapy;·65 hours per annum of speech therapy (including 20 hours for travel and 5 hours for collaboration and report writing);·65 hours per annum of occupational therapy (including 20 hours for travel and 5 hours for collaboration and report writing);·16 hours of weekday support worker assistance; and·16 hours per month of weekend support worker assistancemeet the reasonable and necessary criteria under subsection 34(1) of the NDIS Act. Background QGYX is a 6-year-old child who lives with her family in a suburb of Adelaide. QGYX has the following diagnosed psychosocial conditions:·Autism (level 3). QGYX has previously been approved as a participant in the Scheme. The plan which is the subject of this review is a 1-year plan commencing on 20 October 2023 which ended on 19 October 2024 (the original decision). It was not clear from the current material before the Tribunal if the current funding has been extended or a new plan has been put in place. In passing, I note that the plan for the previous year provided for funding for capacity building supports of $100,486.82. The NDIS supports in her most recent plan are as follows:Core Supports: $13,136.14·Including purchase of Basic (Level 1) and Standard (Level 2) assistive technology, and minor repairs, support continence products and sustaining QGYX’s family and assisting with her personal care based on 200 hours of flexible funding.Capacity Building Supports: $41,625.88 ·Improved Daily Living: for allied health professionals, such as an occupational therapist, speech pathologist, physiotherapist, psychologist, social worker, early childhood teacher and development educator. On 20 October 2023, QGYX’s father lodged an application on her behalf for an internal review by the Agency. QGYX’s father requested the following additional supports be included in her plan:Core funding· 15 hours per week support worker assistance; and· Funding for fortnightly respite care.Capacity Building: Improved Daily Living· 2 hours per week of speech pathology;· 1 hour per week of occupational therapy; and· 15 hours/week one-on-one Applied Behaviour Analysis (ABA) therapy. The Agency considered the request for the additional supports and on 4 December 2023, advised of its decision (the review decision) which confirmed that the original plan decision was correct and refused the requested supports. In relation to the requested hours for speech therapy the Agency advised that it considered that QGYX did not meet the following reasonable and necessary criteria:to be value for money (s34(1)(c));will be, or is likely to be, effective and beneficial (s34(1)(d)); and what is reasonable to expect families, carers, informal supports, and the community to provide (s34(1)(e)). In relation to the requested additional occupational therapy hours, the Agency advised that it considered that QGYX did not meet the following reasonable and necessary criteria:(i)to be value for money (s34(1)(c));(ii)will be, or is likely to be, effective and beneficial (s34(1)(d)); and(iii)what is reasonable to expect families, carers, informal supports, and the community to provide (s34(1)(e)); and(iv)it duplicates existing supports (Rule 5.1(c) of the NDIS Support for Participants Rules).

Evidence

Evidence Before The Court

In the application to the Tribunal, QGYX’s father stated:I am writing to formally request a review and reconsideration of the National Disability Insurance Scheme (NDIS) support provided to our daughter, QGYX, who is a 5-year-old autistic girl with level 3 severity.She has made significant progress with the assistance of a dedicated team of therapists, carefully selected by her parents to address the specific areas where she requires support. The therapies implemented thus far have proven to be effective in enhancing her developmental skills. However, it is our concern that despite this progress, she stillfaces challenges in keeping pace with age-appropriate activities and achieving the level of independence we aspire for her future.Regrettably, the NDIS has recently reduced QGYX's capacity-building support by 60%, a decision that we believe is hindering her overall progress. We understand the importance of providing QGYX with the recommended therapy hours to maximize her potential and independence. We kindly request a thorough reassessment of her support needs toensure that the allocated funding accurately reflects the level of care and therapy she requires.Additionally, we had requested for fortnightly respite care to support QGYZ’s parents, providing them with the opportunity to recharge and refresh. This request, accompanied by supporting documentation from QGYXs therapists and her parents' psychologist, was unfortunately rejected by the NDIS. We believe that access to respite care is essential in maintaining the well-being of both her and her caregivers, thereby enabling us to continue providing the best possible care.As her parents, my wife, and I work tirelessly to provide for our family, which includes our younger daughter, (name removed). We are immensely proud of QGYXs progress, but the demands of caring for a child with Autism at level 3 severity have taken a toll on our physical and emotional well-being. This burnout not only affects our personal livesbut also extends to our social connections, work responsibilities, and financial situation.Compounding these challenges is the absence of local family and friend support, leaving us without the respite and assistance needed to effectively manage our roles as caregivers while maintaining a healthy work-life balance. QGYX's sleep issues, in particular, have placed additional strain on our family's overall well-being, resulting in exhaustion and emotional stress.We firmly believe that NDIS support, both in terms of funding for therapies and respite care, as well as the provision of a support worker, is integral to ensuring her continued progress and the overall well-being of our family.We are dedicated to our beautiful daughter and will stop at nothing to help her reach her full potential. If we can secure the necessary funds from the NDIS, we are confident that we can address the challenges we currently face and provide QGYX with the best possible care.Thank you for your attention to this matter. We appreciate your consideration of our request for a review and reconsideration of QGYX's NDIS support.Evidence and Submissions

Decision

Reasons for decision

For the reasons set out above, the Tribunal is satisfied that the correct and preferable decision in this case is to set aside the decision under review and to direct that the following supports meet the requirements of a reasonable and necessary support as defined in the NDIS Act:1)4 hours per week of ABA therapy;2)65 hours per annum of speech therapy (including 20 hours for travel and 5 hours for collaboration and report writing);3)65 hours per annum of occupational therapy (including 20 hours for travel and 5 hours for collaboration and report writing);4)16 hours of weekday support worker assistance; and5)16 hours per month of weekend support worker assistance.DecisionThe Tribunal sets aside the decision under review pursuant to subsection 105(a) of the Administrative Review Tribunal Act 2024 (Cth) as it relates to the supports specified in paragraph 170 of this decision.

Ratio Decidendi

Legal Principle Established

For completeness’ sake I have recorded below the text of that submission in full:There is a clear gap in the agency’s understanding of QGYXQGYX’s situation and the corresponding therapies and supports she requires. Dr. Dunlop explained that there is no fixed therapy "recipe" for children with ASD; rather, it varies according to each child’s unique individual needs.In response to a question from QGYX’s father, Dr. Dunlop confirmed that QGYX’s current allied health professionals, who have been working with her on a weekly basis for many years, are well-placed to formulate an appropriate therapy plan. However, he disagreed with the number of therapy hours recommended by those same therapists.Dr. Dunlop also stated that he may have had a different opinion regarding QGYX’s required support if he had been given the opportunity to clinically assess her in person, rather than basing his view solely on the documentation provided.It’s worth noting that the agency had initially scheduled a functional capacity assessment for QGYX to take place at our home, which was agreed to by QGYX’s father. However, the agency later reversed this decision. The lack of a direct clinical observation has hindered the Agency’s ability to fully understand QGYX’s condition and the level of support she requires.The support worker hours recommended by Mr. Vujcic have provided a more accurate picture of QGYX’s current condition and the necessary level of support required—not only to meet her needs but also to sustain the overall functioning of the family.QGYX’s parents understand and embrace their parental responsibilities. They are doing everything they can to support her development and help her reach her full potential. However, the demands of raising a child with special needs place them at real risk of burnout. If they are unable to continue fulfilling their responsibilities due to exhaustion, QGYX could miss vital developmental opportunities—potentially leading to a greater reliance on agency support in the future.Due to financial constraints, both parents must work full-time. After school, the parent responsible for QGYX on that day must continue working for an additional two hours in a separate room, attending meetings, taking calls, and giving presentations. As Dr. Dunlop noted, QGYX cannot be left unsupervised during this time. Therefore, in addition to the current two hours of morning support, an additional two hours of support worker assistance is required each afternoon to help QGYX with self-care tasks until the parent’s workday ends.As discussed during the hearing, the plan is to implement ABA therapy across various settings—including educational, community, and home environments—subject to available funding. This approach allows QGYX to generalise skills beyond the home.Given that ASD is a lifelong condition and is unlikely to show significant improvement in the near future (as reflected in Dr. Dunlop’s report, page 155 of the joint bundle), I kindly request that QGYX’s plan be extended beyond 12 months.Home and yard maintenance were included in QGYX’s current plan (2024–2025), and I request that this support continue in her next plan. This provision has worked well for our family. It’s important to note that due to QGYX’s toilet training status and other aspects of her autism, the cleaning demands in our household are significantly greater than those of a typical family. Having cleaning and gardening services during school hours reduces sensory impact on QGYX and provides much-needed respite for her parents. I also request continued flexibility in using QGYX’s core budget, as was allowed in her previous plan, to ensure we can allocate resources effectively in the areas that benefit QGYX most.As recommended by Mr. Vujcic’s (FCA), I request that adequate support worker hours be allocated for Saturdays and Sundays to enable QGYX to participate in social, community, and sports activities. Consideration