QLYQ and National Disability Insurance Agency

QLYQ and National Disability Insurance Agency [2024] AATA 3518 (3 October 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/9898
Re:QLYQ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Mischin
Date:3 October 2024
Place:Perth

The decision under review, being the decision of the National Disability Insurance Agency made on 30 November 2021 under section 100(6) of the National Disability Insurance Scheme Act 2013 (Cth) as remade on 18 August 2023 following remittal pursuant to section 42D of the Administrative Appeal Tribunal Act 1975 (Cth), to decline a specific provision of funding for 20 hours of Applied Behavioural Analysis for two years, is affirmed.
.......................[Sgd].................................................
The Hon. Michael Mischin, Deputy President
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – Autism – ABA therapy – provision of funding for 20 hours of Applied Behavioural Analysis for two years – section 34 National Disability Insurance Scheme Act 2013 (Cth) – decision to refuse affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 42D
National Disability Insurance Scheme Act 2023 (Cth) ss 3, 3(3)(b), 4, 4(17), 31, 33, 34, 34(1), 34(1)(c) 34(1(d), 34(1)(f), 34(2), 35, 100, 100(6)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 1.1, 1.2, 1.3, 3.1, 3.2, 3.3, 3.4, 3.5, 5.1, 5.2, 7.8, 7.9, 7.10, 7.14
CASES
QLYQ and National Disability Insurance Agency [2022] AATA 4384
SECONDARY MATERIALS
NDIS House modifications (guideline dated 11 October 2022)
NDIS Reasonable and Necessary Supports (guideline dated 6 October 2023)
REASONS FOR DECISION
Deputy President the Hon. Michael Mischin
3 October 2024
BACKGROUND AND ISSUES

The Applicant child QLYQ was born in February 2018[1] and, so, at the conclusion of the evidence in this hearing was 6 years and 2 months old. He has been diagnosed with autism spectrum disorder (ASD) (Level 3), chromosomal abnormality, language impairment, and global developmental delay (GDD).
[1] Transcript 49.
The Applicant is a participant in the National Disability Insurance Scheme (NDIS or Scheme) established under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The Applicant filed an application on 19 December 2021 for review of a decision made by the National Disability Insurance Agency (the Respondent or Agency) on 30 November 2021 pursuant to section 100 of the NDIS Act. The application was lodged by the Applicant’s father on his behalf, who represents him in these proceedings and who for convenience I shall refer to as ‘Mr Q’.
It is unnecessary to traverse the whole history of the matter. It is sufficient for the purposes of these reasons to note that the Applicant’s current Statement of Participant Supports (SOPS)[2] in his NDIS Plan includes funding as follows:
[2] Issued on 18 August 2023 following a Remittal for reconsideration pursuant to section 42D of the Administrative Appeals Tribunal Act 1975 (Cth).

Capacity Building Supports

Budget

Improved Daily Living (CB Daily Activity)

Funding for support and assistance from Allied Health Professionals for skill development, training, assessment and therapy. Allied Health Professionals will work closely with you to increase independence. It is expected these supports will include progress reports on outcomes of current goals/objectives and ongoing functional needs at Scheduled Review.

My Improved Daily Living funding will be:

· $29,576.63 Self-managed

My Stated Supports funding will be:

· $5,043.74 Self-managed

Assessment Recommendation Therapy or Training – Speech Pathologist

Total Capacity Building Supports $34,620.37

The provision was for the period 18 August 2023 to 16 February 2024. On 22 October 2023 the Agency wrote to the Applicant to advise that the funding would be extended for 12 months from the end of his current Plan, namely to 16 February 2025.[3]
[3] Exhibit R3 1303, 1313.
The Respondent accepts that the Applicant should receive funding for Early Childhood Early Intervention (ECEI) to support his development. His parents have chosen on his behalf to use those funds for 10 hours per week of Applied Behaviour Analysis (ABA) therapy provided by Behaviour-Analytic Special-Education Services (BASES).[4]
[4] Transcript 31, 39.
The Applicant seeks to have the current SOPS supplemented with a specific provision for 20 hours per week of ABA therapy for two years.[5]
[5] BASES also refers to the therapy as being ‘intensive behavioural intervention’: letter from BASES to the Respondent’s then lawyers Clayton Utz dated 4 August 2022.
[5]Transcript 39.
Essentially, the Applicant’s only request on review is a doubling of the hours of ABA provided per week.
THE APPLICANT’S CASE
The Applicant’s case can be distilled to:
(a)ABA therapy is a, if not the, most effective intervention for children with ASD;
(b)ABA therapy has been shown to be effective and beneficial to the Applicant;
(c)The gains that the Applicant has achieved with funding for only about 10 hours per week of ABA could have been greater, and/or the time taken to achieve those gains could have been shorter, had he been funded for 20 or more hours per week; and
(d)The funding of 20 hours per week for ABA-specific therapy intervention will result in the Applicant achieving significant gains and result in him requiring less support in the future.
In support of his application to receive additional ABA funding, the Applicant has provided the NDIA with a quantity of material promoting the merits of the therapy. This includes not only correspondence from BASES with a recommendation and quote for ‘intensive behavioural intervention’ services for QLYQ,[6] but a ‘report’ from Dr Erin Leif, a Senior Lecturer at Monash University,[7] and a report from Dr Indrajit S Karande, Consultant Paediatrician at Perth CDC.[8] Mr Q has also written to the Respondent and Tribunal setting out his assessment of the benefits of ABA therapy for his son, based on his personal observations of the gains experienced by his son and his own research into the subject. The Tribunal has also been provided with literature supporting the efficacy of ABA therapy.
[6] Exhibit A1 Document A5 letter from BASES to AAT dated 13 May 2022, Joint Hearing Tender Bundle 119-123; Document A9 letter from BASES to Clayton Utz dated 4 August 2022, Joint Hearing Tender Bundle 162-164.
[7] Exhibit A1 Document A9 dated 27 July 2022, Joint Hearing Tender Bundle 126-159.
[8] Exhibit A1 Document A11 dated 20 September 2022, Joint Hearing Tender Bundle 168-169.
THE RESPONDENT’S CASE
While the Respondent accepts that ECEI is reasonable and necessary, it is not persuaded that ABA therapy, in the amount sought or any lesser amount, is a reasonable and necessary support.
The Applicant already has funding for 266 hours per year of capacity building ECEI supports in his Plan which can be used flexibly. The Applicant (through his parents) has exercised choice and control to use this funding to participate in an ABA therapy program delivered through BASES. However, the Applicant is not required to use his funding solely on ABA (or at all, rather than for or in combination with other therapies such as speech therapy or occupational therapy); with a specific provider; or at a specific intensity. ABA therapy is one of a range of interventions that may be effective and beneficial for the Applicant and provide value for money, but it is ECEI support as a whole – a set of interventions – which the Respondent considers to be reasonable and necessary. This does not entail endorsement of any specific intervention within that set. The Respondent considers that the requested 20 hours of ABA therapy per week does not satisfy the requirements of section 34(1)(c), (d), (e) and (f) of the NDIS Act.[9]
[9] Transcript 35.
More particularly, the Respondent contends that the available evidence is to the effect that:[10]
(a)There is no set number of hours per week of intervention that leads to the best outcomes for children with ASD;
(b)The research does not support the proposition that supports delivered in greater amounts consistently lead to better outcome; and
(c)There is paucity of evidence about the long-term outcomes from interventions such as ABA therapy on areas such as the child’s quality of life, rather than the achievement of short-term goals.
Further, the Respondent contends that:
(d)The Tribunal ought not to be satisfied that intervention with ABA therapy to date demonstrates an increased rate of skill acquisition by the Applicant (thus not satisfying section 34(1)(c) or (d) of the NDIS Act); and
(e)ABA therapy ought not be a substitution for the Applicant attending school (so not satisfying section 34(1)(f) of the NDIS Act).
[10] Transcript 37.
In the course of these proceedings, the Respondent sought to have the Applicant examined by a paediatrician and clinical geneticist, Dr Kenneth Maclean. The Applicant’s father refused to permit such an examination contending, inter alia, that the Applicant has provided ample evidence to support what is being sought. A directions hearing was held on 6 September 2022 at which the refusal to submit to an examination was canvassed and directions were made to program the case to hearing. It was foreshadowed that, absent Dr Maclean being able to conduct his own assessment of the Applicant, he may have to form an opinion based on his considering other available evidence of the Applicant’s condition and response to therapy. Dr Maclean subsequently prepared two reports which the Respondent tendered in evidence.[11]
[11] Exhibit R2 Document R6 dated 29 March 2023, Joint Hearing Tender Bundle 2079-2138; Document R7 dated 24 May 2023, Joint Hearing Tender Bundle 2139-2207.
The Respondent has also provided the Tribunal with literature and reports of studies on the efficacy of ABA therapy.
THE HEARING AND AVAILABLE EVIDENCE
The application was heard by the Tribunal over six days, on 23 to 25 January and 16 to 18 April 2024.
The Tribunal had before it:
(a)Exhibit A1: Documents A1 to A20 in the Joint Hearing Tender Bundle, which includes the Applicant’s materials filed over the course of the application, comprised of reports, studies, correspondence, and submissions (241 pages);[12]
[12] Exhibit A1 as a bundle, Joint Hearing Tender Bundle documents A1 to A20 1-239; Transcript 21.
(b)Exhibit A2: Mr Q’s slide presentation as part of the Applicant’s opening remarks (slides numbered 7, 10-22, 33-36, 38, 43-44 and 66 out of 66);[13]
[13] Exhibit A2; Transcript 53-68.
(c)Exhibit R1: The ‘T-Documents’ filed by the Respondent pursuant to its obligations under section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act),[14] comprised of extracts of the NDIS Act,[15] Rules,[16] and Operational Guidelines,[17] and the application for review and a variety of correspondence and reports (392 pages of documents);
(d)Exhibit R2: Documents R1 to R10 in the Joint Hearing Tender Bundle, which includes the Respondent’s materials filed over the course of the application, comprised of correspondence and reports (331 pages);[18]
(e)Exhibit R3: A Supplementary Joint Hearing Tender Bundle comprised of various studies, reports, correspondence, and the Applicant’s most recent NDIS Plan (1,315 pages);[19]
(f)Exhibit R4: A document prepared by Autism Pathways (formerly ABiA) ‘Navigating the NDIS – How to get the funding your child needs’, undated (52 pages);[20]
(g)Exhibit R5: A subset of the material produced under summons from BASES (344 pages out of 7,767 produced);[21]
(h)Exhibit R6: A paper intituled ‘Autism intervention meta-analysis of early childhood studies (Project AIM): updated systemic review and secondary analysis’, authored by Dr Micheal Sandbank et al and published 14 November 2023 (accepted for publication 29 September 2023) (15 pages);[22]
(i)Exhibit S1: The Respondent’s Statement of Facts, Issues and Contentions dated 27 April 2023 (21 pages);[23]
(j)Exhibit S2: The Applicant’s Statement of Facts, Issues and Contentions dated 26 May 2023 (14 pages and 228 pages of attachments);[24]
(k)Exhibit S3: The Respondent’s Contentions in Reply dated 23 June 2023 (8 pages);[25] and
(l)Exhibit S4: The Applicant’s Contentions in Reply dated 16 July 2023 (14 pages).[26]
[14] Exhibit R1 T-Documents T1 to T15, excluding T1A and T3; Transcript 5-6 and 13.
[15] Exhibit R1 T-Documents T10 246-248.
[16] Exhibit R1 T-Documents T11 249-263.
[17] Exhibit R1 T-Documents T12 264-337 and T13 338-347.
[18] Exhibit R2 as a bundle, Joint Hearing Tender Bundle documents R1 to R10 241-2570; Transcript 21.
[19] Exhibit R3; Transcript 95.
[20] Exhibit R4; Transcript 333.
[21] Exhibit R5 Extract of Summonsed Material SM1; Transcript 357.
[22] Exhibit R6; Transcript 357; evidence of Dr Sandbank, Transcript 212, 213.
[23] Exhibit S1, Joint Hearing Tender Bundle document S1 2571-2595; Transcript 21.
[24] Exhibit S2, Joint Hearing Tender Bundle document S2 2596-2892; Transcript 22.
[25] Exhibit S3, Joint Hearing Tender Bundle document S3 2893-2900; Transcript 22.
[26] Exhibit S4, Joint Hearing Tender Bundle document S4 2901-2914; Transcript 22.
In addition to Mr Q,[27] the following witnesses were called for the Applicant, gave evidence at the hearing, and were cross-examined:
(a)Behavioural Analyst Dr Brent Maxwell Jones;[28]
(b)Behavioural Analyst Dr Erin Leif.[29]
[27] Transcript 40-86, 96-122.
[28] Transcript 123-156, 161-180, 231-300.
[29] Transcript 305-236, 326-355.
The Respondent called:
(a)Assistant Professor Dr Micheal Paige Sandbank;[30]
(b)Paediatrician and Geneticist Dr Kenneth Maclean.[31]
[30] Transcript 184-225.
[31] Transcript 367-384, 386-408.
The Tribunal also had the benefit of written closing submissions from the Respondent[32] and the Applicant respectively,[33] and Reply Submissions from the Respondent.[34]
[32] Respondent’s Closing Submissions dated 15 May 2024 (61 pages).
[33] Applicant’s Closing Submissions dated 4 June 2024 (40 Pages).
[34] Respondent’s Reply Submissions dated 26 June 2024 (14 pages).
I have considered the relevant factual and expert evidence before the Tribunal and refer to parts of the same in these reasons.
As Mr Q was not learned in the law and processes of a review, the Tribunal allowed him considerable latitude in the presentation of the Applicant’s case and the questioning of witnesses, as did counsel for the Respondent.
LEGISLATIVE FRAMEWORK
I have had regard to the objects and general principles informing the application of the NDIS Act and the Scheme,[35] including the requirement to have regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.[36]
[35] Section 3 and 4 of the NDIS Act.
[36] Section 3(3)(b) and section 4(17) of the NDIS Act.
Section 31 of the NDIS Act sets out the principles relating to plans.
Section 33 of the NDIS Act prescribes the matters that must be included in a participant’s plan. It provides, materially:
(1)A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a)the goals, objectives and aspirations of the participant; and
(b)the environmental and personal context of the participant’s living, including the participant’s:
(i)living arrangements; and
(ii)informal community supports and other community supports; and
(iii)social and economic participation.
(2)A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO,[37] that specifies:
[37] Chief Executive Officer of the Agency: section 9 NDIS Act.
(a)the general supports (if any) that will be provided to, or in relation to, the participant; and
(b)the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
…
(3)The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
…
(5)In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a)have regard to the participant’s statement of goals and aspirations; and
(b)have regard to relevant assessments conducted in relation to the participant; and
(c)be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d)apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
…
…
[original emphasis]
Section 34 of the NDIS Act deals with ‘Reasonable and necessary supports’, and the criteria of which the CEO must be satisfied with respect to the provision or funding of a support, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2)The National Disability Insurance Scheme 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 35 of the NDIS Act empowers the making of rules regarding statements of participant supports, materially:
(1)The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a)methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b)reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c)reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.
(2)The National Disability Insurance Scheme rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.
…

The term ‘reasonable and necessary’ is not defined in the NDIS Act.
However, rules have been made pursuant to section 34(2) prescribing that to which a decision-maker must have regard in deciding whether they are satisfied that the criteria under section 34(1) have been met in respect of a requested support.
In this case, the relevant rules to which the Tribunal has been directed are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Supports Rules).[38]
[38] Exhibit R1 T-Documents T11 249-263.
The Supports Rules materially state as follows:[39]
[39] Exhibit R1 T-Documents T11 250.
1.1These Rules are about assessment and determination of the reasonable and necessary supports that will be funded and the general supports that will be provided for participants under the NDIS.
1.2The Act sets out a number of objects for the NDIS. The objects that are particularly relevant to these Rules are the following:
(a)supporting the independence and social and economic participation of people with disability;
(b)providing reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;
(c)enabling people with disability to exercise choice and control in pursuit of their goals and the planning and delivery of their supports.
1.3In giving effect to these objects, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Part 3 of the Supports Rules informs the CEO, in greater detail than section 34 of the NDIS Act, of matters to which the CEO is to have regard in assessing proposed supports, relevantly:[40]
[40] Exhibit R1 T-Documents T11 252-254.
Value for money
3.1In deciding whether 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, the CEO is to consider the following matters:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)…
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).
Effective and beneficial and current good practice
3.2In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a)published and refereed literature and any consensus of expert opinion;
(b)the lived experience of the participant or their carers; or
(c)anything the Agency has learnt through delivery of the NDIS.
3.3In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Reasonable family, carer and other support
3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a)for a participant who is a child:
(i)that it is normal for parents to provide substantial care and support for children; and
(ii)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
(iii)the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv)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;
…
(c)for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
Supports appropriately funded or provided through the NDIS
3.5Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).
Part 5 of the Supports Rules sets out the general criteria for supports, and those that will not be funded or provided. Relevantly:[41]
[41] Exhibit R1 T-Documents T11 256.
General criteria for supports
5.1A support will not be provided or funded under the NDIS if:
(a)it is likely to cause harm to the participant or pose a risk to others; or
(b)it is not related to the participant’s disability; or
(c)it duplicates other supports delivered under alternative funding through the NDIS; or
(d)it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.
5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a)additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b)costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.
The reference in rule 3.5 to Schedule 1 relevantly refers to the following:[42]
[42] Exhibit R1 T-Documents T11 259.
Early childhood development
7.8The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
7.9The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:
(a)specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and
(b)likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.
7.10The NDIS will not be responsible for:
(a)meeting the early childhood education and care needs of a child with a 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; or
(b)supports, which are clinical in nature provided in the health system, including acute, ambulatory or continuing care; or
(c)new-born follow-up provided in the health system, including child and maternal health services.
THE EVIDENCE
Mr Q
Mr Q is a medical practitioner who works as a psychiatry registrar. He is not a psychiatrist but has undertaken training in that field.[43] He is not a paediatrician, and he does not have professional expertise in the developmental progress of children, including children with autism.[44] He is not an expert in ABA therapy or its effectiveness. His knowledge of that is derived from his having read some research articles, speaking with other medical practitioners,[45] his observations of what he has perceived with his son, and what he has been told by the ABA provider BASES.
[43] Transcript 41.
[44] Transcript 71, although in the course of his work he sees patients with autism, and as part of their management, liaises with paediatricians.
[45] Transcript 71.
The Applicant’s disabilities have had a significant impact on the family, which comprises Mr Q, the Applicant’s mother Mrs Q, and a younger sister born in March 2021. His mother was working fulltime before the Applicant’s birth but gave up work to care for him. It has been stressful, and she has developed back pain, anxiety, and depression, for which she is being treated. Mr Q has had to go from fulltime to parttime work and shift his workdays to weekends to accommodate the family’s needs.[46]
[46] Transcript 29.
Mr and Mrs Q first started to notice signs of the Applicant regressing at about 21 months of age, when he lost previously acquired skills. The Applicant ceased clapping and waving, his eye contact decreased significantly, and he ‘kind of got lost in his own world’ and stopped interacting with others.[47] He was hyperactive and restless, and exhibited a range of challenging behaviours.[48] He was non-verbal. He did retain the ability to ‘sing’ the melodies of nursery rhymes, but not the words.[49]
[47] Transcript 42.
[48] Transcript 29.
[49] Transcript 42.
The Applicant must be kept in sight and under constant supervision.[50]
[50] Transcript 29.
The Applicant’s parents sought professional help[51] and in February 2021 the Applicant was diagnosed with ASD by developmental paediatrician Dr Karande. The Applicant’s parents consequently applied for early childhood intervention support from the NDIA.[52]
[51] Transcript 42.
[52] Transcript 43.
Mr Q had heard of ABA therapy from speaking with others in his circle and their telling him of its benefits.[53] He came across BASES in early 2021. An intake assessment was conducted in February 2021, and the Applicant has been engaged with BASES since March of that year.[54] Mr and Mrs Q used the NDIS funds for ABA therapy, and privately funded speech therapy and occupational therapy.[55]
[53] Transcript 43.
[54] Transcript 73.
[55] Transcript 44.
Several speech pathologists were consulted and tried, but the Applicant did not relate to them or occupational therapists, and they were not able to hold his attention. The speech therapy was more expensive than ABA.
The ABA therapy involves the achievement of goals by breaking tasks into smaller, intermediate, steps, reinforced by rewards of food the Applicant likes or allowing him to play with a musical toy.[56] The ABA therapists made a list of what interests him, so that they can motivate the Applicant with rewards.[57] They also keep track of what they attempt and the Applicant’s progress.[58]
[56] Transcript 30, 54.
[57] Transcript 56-57.
[58] Transcript 54.
Mr and Mrs Q saw what the ABA therapists were doing on the Applicant’s foundational skills, using positive reinforcement, and concluded that ABA was the only therapy that was going to work in the Applicant’s case.[59] Mr and Mrs Q eventually abandoned speech and occupational therapy in favour of ABA therapy, and began to learn the techniques themselves so that they could apply them when the Applicant is not having therapy sessions.[60]
[59] Transcript 44.
[60] Transcript 45.
There are no reports from speech therapists apart from the initial diagnostic assessment of the Applicant by Speech Pathologist Anthea Dobson in February 2021.[61]
[61] Transcript 74; Exhibit R1 T-Documents T1D, Speech Language Pathology Diagnostic Assessment for Autism Spectrum Disorder dated 11 February 2021, 108-115.
The Applicant attends the Education Support Centre at his Primary School.[62] He has been attending since he was 4-years old; the kindergarten in 2022 for three days a week, and pre-primary in 2023.[63] He is in his final year before moving up.[64] The Applicant would attend every day but, because of difficulties the school experienced managing him, Mr Q might have to leave work to retrieve him from school early.[65] To start with, teachers were only able to play music and let him play on a mat. After the ABA therapy, they were able to see a difference and ‘use those [ABA] techniques… so that he can at least sit on a chair and table and do something’ [sic].[66] Before ABA therapy the Applicant would not sit on a chair at a table. The therapists had to spend a lot of time to achieve the goal of him sitting in place.[67]
[62] Transcript 46.
[63] Transcript 75.
[64] Transcript 46.
[65] Transcript 75.
[66] Transcript 45.
[67] Transcript 30.
Mr Q identified improvements following ABA in a variety of areas:
(a)Communication/speaking: The Applicant had gone from non-verbal to saying some words like ‘daddy’, ‘mummy’ and ‘hi’, and having ‘some’ communication with family members and others.[68] According to Mr Q, the Applicant can say more than 30 words, and there has been other improvement in his expressive and receptive language.[69] The Applicant can communicate using verbal and non-verbal cues such as waving or pointing,[70] or taking Mr Q by hand to something he wants.[71] He has started to respond to his name,[72] but is not able to say his own name or respond when others ask it.[73] The Applicant has been able to use an iPad to show some of his needs,[74] by pointing to images on his iPad to express what he wants: for example, he can click ‘water’ and the software will say the word.[75] The Applicant has difficulty with two-syllable words, so they are taught by having him master individual syllable sounds before stringing them together. Initially, he was not able to imitate sounds.[76]
(b)Play/fine motor skills: The Applicant has been taught to ‘pinch grip’ – picking up and holding items between his thumb and index finger – rather than resorting to the palm of his hand,[77] a generalised skill that has contributed to him being able to assemble puzzles of up to nine pieces.[78] The pinch-grip was achieved in stages, after him being taught the ‘hook-grip’ (holding an item with all his fingers).[79]
(c)Playground play/gross motor skills: Before ABA the Applicant had to be supported by others holding his hand as he would fall on uneven surfaces.[80] He could not jump;[81] he would lose balance when he did do.[82] The Applicant had to be taught to walk properly and safely to the park as he would flop onto the ground or road, or try to run away.[83] He can now do many activities,[84] such as climb onto the seat of a seesaw; walk up a ladder for a slide and slide down; hold himself on a regular swing and jump off the swing; climb over an A-frame, and climb up spiral steps while holding onto a pole.[85] He is now able to use a trampoline and independently jump.[86]
(d)Independent eating: This has improved. Previously, he would not sit on a chair at a table. He wasn’t touching food on a plate or placed in front of him,[87] having to be fed bite-by-bite by his mother.[88] He now can sit at a table and feed himself independently by picking up food from his plate. It was a six-stage process to get him to this point; the next step is getting him to use a fork.[89]
(e)Social skills: He has improved eye contact and attention. He responds to smiles.[90]
(f)Safety awareness: The Applicant had no awareness of danger: Mr Q gave an example of the Applicant wanting to jump into a lake at a park.[91] The Applicant’s awareness of his surroundings and of his safety has improved.[92]
(g)Emotional regulation: Previously, the Applicant was fixated on routine. If he became angry he would hit at his mother, and scratch and bite others.[93] He was aggressive and hit teachers and had to be restrained by several people. There was a prospect that he would have to be schooled from home as he was unmanageable. Increased hours of ABA therapy for several months improved his behaviour[94] and the Applicant’s school is now able to manage him.[95]
[68] Transcript 47.
[69] Transcript 45.
[70] Transcript 45, 47.
[71] Transcript 47.
[72] Transcript 45.
[73] Transcript 59.
[74] Transcript 45.
[75] Transcript 47.
[76] Exhibit A2 slide 10; Transcript 53-54,
[77] Transcript 45; Exhibit A2 Slides 13-14.
[78] Exhibit A2 Slide 14; Transcript 55.
[79] Transcript 56.
[80] Transcript 48.
[81] Transcript 47.
[82] Exhibit A2 Slide 33.
[83] Exhibit A2 Slide 16; Transcript 57.
[84] Transcript 48.
[85] Exhibit A2 Slide 16; Transcript 49, 57.
[86] Exhibit A2 Slide 17; Transcript 47.
[87] Transcript 58-59.
[88] Transcript 47.
[89] Transcript 58-59.
[90] Transcript 47.
[91] Transcript 48.
[92] Exhibit A2 Slide 33; Transcript 60.
[93] Transcript 48.
[94] Transcript 49.
[95] Transcript 61.
This progress has been observed over time, but the biggest improvement was seen at the beginning of 2023. In response to the risk of the Applicant being expelled from school, Mr and Mrs Q doubled the number of hours of ABA to teach him foundational skills, which resulted in a ‘big change’.[96]
[96] Transcript 50.
The number of hours of service being provided by BASES has fluctuated. In January 2023, because of the risk of expulsion from school, the hours were increased to 18 or 20 hours per week for three to four months. Many goals were achieved but funding ran out and the hours dropped to six hours per week. When funding resumed, they increased to an average of 10-12 hours per week.[97]
[97] Transcript 73.
Having seen the Applicant’s progress with more than 10 hours a week intensive ABA therapy, Mr Q is convinced that if they had 20 hours instead of 10, the therapists could have increased the Applicant’s foundational skills in half the time.[98] Doubling that number of hours will enable greater progress and the achievement of more behavioural goals in the future.[99] Originally 40 goals were set, but work on only 16 goals could be pursued due to lack of hours.[100]
[98] Transcript 31.
[99] Transcript 30, 31-32, 54, 59.
[100] Transcript 30.
Accordingly, Mr Q is seeking 20 dedicated ABA hours per week for the Applicant to increase his skills development.
Mr Q contends that value for money would be achieved in the long term by facilitating his son’s relying less on disability support and enabling his participation in the community. The Applicant could be taken to a level where one-on-one support was not required. Further, there is a risk that if advantage is not taken of the Applicant’s brain neuroplasticity at an early stage, he will not be able to be taught the skills he needs, or it will take longer for him to do so.[101]
[101] Transcript 34.
Dr Brent Maxwell Jones, BASES Director
Dr Jones describes himself as a self-employed behaviour analyst.[102] He has a PhD in psychology, within the specialty of behaviour analysis, from the University of Otago. He is a board-certified Behavioural Analyst, certification granted by the Behaviour Analysis Certification Board (BACB),[103] a voluntary, non-government organisation in the United States of America. It is not a certification recognised by the Australian Health Practitioner Regulation Agency (AHPRA). Dr Jones can be said to have considerable experience in ABA therapy. He speaks at ABA conferences, has taught ABA therapy at university, and is a member of organisations of ABA practitioners.[104] He and Dr Erin Leif have had a long affiliation.[105]
[102] Transcript 123.
[103] Transcript 124.
[104] Transcript 162.
[105] Transcript 169-170.
Dr Jones’ recent research has focussed on using behavioural analysis in animals, not ABA therapy.[106] His evidence does not suggest that he has performed any empirical analysis of the effectiveness of ABA therapy or its correlation to intervention intensity. He left his last academic post in mid-2014 to go into business as an ABA therapy provider, and has not published in the field since then.[107]
[106] Transcript 162, 163.
[107] Transcript 163.

Dr Jones is Clinical Director of BASES, the trading name of his family trust company of which he is a Director.[108] Dr Jones has an office in his home, but BASES provides a mobile service to clients, visiting them in their own homes, schools, or daycare centres.[109] Under him is a clinical services manager, and under her are eight clinical staff, who they describe as ‘technicians’.[110] They are employed casually and submit invoices each week to report the hours they’ve worked with which clients, and get paid accordingly. BASES has been operating for nine years, since 2015.[111]
[108] Transcript 163.
[109] Transcript 123.
[110] Transcript 124, 131.
[111] Transcript 126.
Dr Jones advised that Mr and Mrs Q had attended for an intake interview with him and a case manager on 22 February 2021. BASES assessed the Applicant on 23 and 26 February 2021, prepared an assessment report, and commenced active sessions with the Applicant on 25 March 2021.[112]
[112] Transcript 131.
Dr Jones testified that the Applicant started with six hours (three two-hour sessions) of service in the first week, eight hours (four two-hour sessions) the next week, followed by six hours per week, followed by 10. The number of hours was determined by the parents: it was their choice as to how to spend the NDIS Plan money. He could not recall the specific conversation with Mr and Mrs Q, but he would usually tell parents that BASES ‘will teach everything that a speech [speech therapist] or a OT [occupational therapist] is working on, but our approach is different’.[113] As to who decides the optimum number of hours of service: ‘Well, it’s the parent. It’s the parent once they’ve considered how far their funding will go’. As to the number of hours required in individual cases, he ‘always’ recommends that the more teaching sessions a week, ‘the better’.[114]
DEPUTY PRESIDENT: So it’s a question of just how much funding out of the funding available the parents wish to devote to ABA?
Dr JONES: Yes. Exactly. That’s it. That’s it, yes.
…
DEPUTY PRESIDENT: You made mention about the number of hours, and it’s really up to the parents as to how much they would like done with their child. But is there an optimum number of hours, a point where you reach saturation or diminishing marginal returns, or is simply wearying on the subject that you’re dealing with, that it becomes rather a chore for the subject you’re dealing with rather than something that they are actively learning from, like having too much school? Have you found that to be the case?
Dr JONES: No, I haven’t. I don’t have personal clinical experience of discovering that I’m teaching, or my staff are teaching, for too many hours per week.
…
Dr JONES: Yes. No, I understand that position, and indeed, parents and other professionals will sometimes suggest to me that maybe there is some number of hours per week is going to be too taxing for the child. My response to that is usually our kids attend school for 30 hours per week.
[113] Transcript 132.
[114] Transcript 132.
Dr Jones recounted the improvements in the Applicant’s skill levels since being provided ABA therapy.[115] He also detailed the way the skills were taught through ABA.[116] He was asked:[117]
Mr Q:Do you think higher intensity of ABA therapy, for example, 20 hours per week, compared to what he was just getting on average, 10 hours per week, will be effective and beneficial for QLYQ?
Dr JONES: I have no doubt. I have no doubt. Providing more hours per week would allow us to teach many more skills. And I can say that from experience, it’s also established in our field, that the more time you can spend with the child, the more skills you can teach. See, I hesitate to call ABA therapy. I think it’s important that people understand that we’re really specialists in teaching, and in fact, when a child’s non‑verbal, you’ve got to be a specialist in training. So I think, absolutely, we can work on a lot more and we can see faster progress with what we’re presently working on, if we had those additional hours per week.
[115] Transcript 126.
[116] Transcript 128-129.
[117] Transcript 126-127.
Dr Jones testified that all his clients are on the autism spectrum, and the Applicant’s chromosomal abnormality did not change how they worked with him. They also had clients with Fragile X syndrome and Rett syndrome and worked with them the same way.[118] He did not appear to consider relevant any learning limitations arising from those conditions to be a bar to effective ABA therapy.
[118] Transcript 133-134.
Dr Jones was asked about a report written by Dr Micheal Sandbank of 6 October 2022.[119] He was not convinced by her arguments and her conclusions, that more treatment hours did not necessarily lead to greater improvement.[120]
[119] Exhibit R2 Document R3, Joint Hearing Tender Bundle 1697-2068.
[120] Transcript 147-156.
However, Dr Jones considered a report by Jacqueline Roberts and Katrina Williams intituled ‘Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers’ (2016) (Roberts and Williams (2016)) to be ‘an awesome paper’.[121]
[121] Exhibit A1 Document A2, Joint Hearing Tender Bundle 16-104; Transcript 156.
That latter report was prepared for the Agency ‘to assist with making decisions about the delivery of services to preschool children with autism, and their families and other carers’.[122] Their finding recommendations, to the extent relevant to this case, were:
[122] Exhibit A1 Document A2 4, Joint Hearing Tender Bundle 19.
(a)Supports for children with autism should be evidence‐based and delivered using a family-centred approach that incorporates individual planning;[123]
[123] Exhibit A1 Document A2 9, Joint Hearing Tender Bundle 24.
(b)The specific early intervention program chosen should take into account family preferences and capacity and each child’s strengths and difficulties, age and stage of development;[124]
[124] Exhibit A1 Document A2 9, Joint Hearing Tender Bundle 24.
(c)The aims of support for the child with autism are to improve social communication and minimise behaviours that challenge to enhance learning and participation;[125]
[125] Exhibit A1 Document A2 9, Joint Hearing Tender Bundle 24.
(d)Early intervention or support should start as soon as a diagnosis is made and the family are ready;[126]
(e)Having well‐trained professionals working as teams to support children with autism and their families is needed. Parent or peer training is promoted, as long as it is incorporated to take into account a family‐centred approach;[127]
(f)Intervention programs for children with autism should be comprehensive, that is, across all domains of learning, with clearly stated, replicable process and content;[128]
(g)Early intervention programs for children with autism must be of sufficient intensity and fidelity (i.e. implemented consistently and accurately), and be evaluated to ensure program quality;[129]
(h)Children who have received a diagnosis of autism should receive 20 hours per week of early intervention that involves interaction with them. The level of support comes with a requirement that:[130]
(i)staff-to-child ratios can vary between 1:1 and 1:3 as determined by the child’s individual program;
(ii)all staff are autism-trained (training and qualifications will vary);
(iii)programs must involve allied health professionals in individual planning, program implementation and review, and
(iv)the support is sufficiently flexible that it can be adapted and modified in line with the child and parents’ strengths and needs.
[126] Exhibit A1 Document A2 10, Joint Hearing Tender Bundle 25.
[127] Exhibit A1 Document A2 10, Joint Hearing Tender Bundle 25.
[128] Exhibit A1 Document A2 10, Joint Hearing Tender Bundle 25.
[129] Exhibit A1 Document A2 10, Joint Hearing Tender Bundle 25.
[130] Exhibit A1 Document A2 11-12, Joint Hearing Tender Bundle 26-27.
The authors advise that:[131]
Reviews and guidelines that provide evidence about intensity (hours per week) and duration of interventions report that comprehensive programs that have been evaluated and shown to be effective are most commonly provided for between 15 and 25 hours a week, suggesting a midpoint of 20 hours, and for at least 1 year.
The authors acknowledge, however, that:
There are notable gaps in the evidence. In particular the recommended ratio of allied health professional time to other appropriately trained therapists/early intervention workers and the proportion of time that should be spent in 1 staff:1 child versus small groups (up to 1:3) settings was not easy to distil from existing literature.
[131] Exhibit A1 Document A2 11, Joint Hearing Tender Bundle 26.
Dr Jones agreed that he stood to financially benefit from the funding of an increased demand for ABA therapy from parents of a child with autism. However, he denied that there was any conflict of interest in his providing, recommending, and financially profiting from intervention, and providing expert evidence as to its efficacy.[132] He advised:[133]
I’ve never been driven by a profit margin. Hence, BASES is probably the smallest ABA agency in Australia. Certainly in Perth, maybe Australia also. It is always – it has always been much more important to me to have my staff make meaningful differences to a child’s life. Consequently, I have a small group of staff, half of which are pursuing post-graduate degrees in applied behaviour analysis in order that they can become board certified behaviour analysts themselves.
[132] Transcript 164-165.
[133] Transcript 165.
Concerns regarding, and assessment of, the evidence of Mr Q and Dr Jones
I have no doubt that Mr Q is committed to his son’s best interests, and the welfare of his wife, whose well-being has suffered in her efforts to care for their son. However, his evidence needs to be approached with caution. He is, understandably, an advocate for his son; however, he is also an advocate for ABA therapy as the key to his son’s advancement and prospects. The sources of his information about its effectiveness have been those supportive of ABA, untempered by dispassionate and disinterested overview. He is not an objective witness.
I do not consider Dr Jones to be an independent, impartial witness disinterested in the outcome of these proceedings. I acknowledge that often the only witnesses that applicants can draw upon when seeking funding from the Scheme are those who provide the services that are to be funded. I also acknowledge that those service providers, including medical and allied health professionals, are faced with assisting applicants notwithstanding that they find themselves in a conflict of interests. However, my concerns with Dr Jones go beyond that. I need only refer to a few examples.
First, his advocacy of the benefits of ABA, and in particular his advocacy that increased ABA hours and frequency will lead to improved results, is obvious and uncritical.
Second, his testimony that the more hours the better, limited only by what the client can pay, is of concern especially when allied with uncritical and unnuanced advocacy of the benefits of the treatment, leaving it up to desperate parents to decide what is in the best interests of their disabled child.
Allied to this is the BASES ‘Position Paper’ intituled ‘The Effective Treatment of Autism Spectrum Disorder in Children’, purporting to be authored by him and Dr Leif.[134] Dr Jones testified that he commenced drafting it when on the executive council of the Association for Behaviour Analysis Australia. He prepared it because there was interest in having that organisation publishing its views of the therapy on their website. When he resigned from that position it was unfinished. He considered it a useful resource to explain where he stood on various matters related to interventions for children with autism, essentially encapsulating his ‘philosophy’.[135] While working for the association and putting together the position paper, he found that Dr Leif had written a very similar position paper for the Lizard Centre, a copy of which she provided to him. With her permission, he lifted sections from it. He informed her that he would add her as an author, and ‘she was fine with that’. He has had very little to do with Dr Leif since he finished working for Monash University.[136] Nevertheless, the presence of Dr Leif’s name on the document may suggest to readers that she, another medical or allied health practitioner bearing the title ‘Doctor’, endorses all its content.
[134] Exhibit R2 Document R8 Tab 6, Joint Hearing Tender Bundle 2375-2376; Transcript 288-289.
[135] Transcript 170, 288.
[136] Transcript 170.
Dr Jones provides the Position Paper to parents as an information sheet. It is primarily written for parents so that they know his position on the issues it traverses. It contains the following:[137]
Research published in peer-reviewed journals has consistently shown that the best outcomes are achieved when ABA treatment is provided for 15 to 25 hours per week over at least two years (see Roberts & Prior, 2006).[138] BASES recommends that 20 hours per week of ABA for two years be the minimum treatment intensity provided to children with ASD.
…
BASES maintains that the cost of ABA/EIBI delivered at 20+ hours per week for around two years to a child with ASD is reasonable and represents value for money when the costs of either no intervention or any other current intervention are considered.
and, under ‘E. Recommendations to Government Authorities’:
… government officials and elected representatives should recognise that funding EIBI at 20+ hours a week for 2 to 3 years provides children with ASD and their families with the best outcomes possible and represents value for money when weighed against the longer-term costs of not providing this type and amount of intervention.
[original emphasis]
[137] Exhibit R2 Document R8 Tab 6, Joint Hearing Tender Bundle 2381; Transcript 288.
[138] In fact, Dr Jones testified that the reference was an error and considered that it should more properly refer to either their 2011 or 2016 paper. He could not explain the error; Transcript 172-174.
I am concerned that the manner in which the BASES position paper is structured may lead parents to think that EIBI (Early Intensive Behavioural Intervention) and ABA are synonymous rather than the former being a treatment applying the latter, that its contents are endorsed by Dr Leif and not the view of Dr Jones alone, and that the ‘20 hours’ figure is supported by the papers cited. I am also concerned that Dr Jones was unable to explain where he got the figure ‘2 years’ from.[139]
[139] Transcript 175.
The Position Paper and Dr Jones’ philosophy is also, in several respects, inconsistent with the Autism CRC National Guidelines, approved by the National Health and Medical Research Council on 6 December 2022. For example, with respect to Recommendation 56 under ‘Good Practice Points’, the Guideline states:[140]
[140] Exhibit R2 Document R8 Tab 7, Joint Hearing Tender Bundle 2394-2539 at 2496-2497.
56.3Practitioners should inform parents that there is no set number of hours per week of practitioner delivered child-directed supports that leads to the best outcomes for all children.
56.4Practitioners should be aware that research evidence does not support the concept that supports delivered in greater amounts consistently lead to better child and family outcomes.
56.5The amount and duration of support provision should take into consideration the child’s right to education; their right to relax, play and choose to join in a wide range of leisure activities, and their individual preferences for each.
…
56.8Practitioners should be aware that members of the autistic and autism communities have expressed concerns and/or reported based on personal experience that supports delivered in insufficient amounts can have detrimental effects on children’s learning, participation, and wellbeing, and the wellbeing of the family in the short- and long-term.
56.9Practitioners should be aware that members of the autistic and autism communities have expressed concerns and/or reported based on personal experience that supports delivered in large amounts and/or high intensities can have detrimental effects on children’s learning, participation, and wellbeing, and the wellbeing of the family in the short- and long-term.
[emphasis added]
Third, I am concerned that some of the achievements under intensive ABA therapy may have been exaggerated. Dr Jones was cross-examined at some length on reports of the Applicant’s progress. As an example, at one point, in the Progress Report of 20 October 2022 he recorded that therapy was being delivered at 16 hours, reduced to 10 for funding reasons, increased to 12 hours for nine weeks, and then restored to 16 hours at the request of the parents, and finishes by saying:[141]
(Interestingly, it was while [the Applicant] was receiving around 16 hours per week that we saw a dramatic improvement in his learning – in his learning to vocally imitate especially.)
[141] Exhibit R2 Document A14, Joint Hearing Tender Bundle 184-198 at 189.
He accepted that he did not present any data to corroborate that assertion, and that it was ‘just correlational’ and ‘[t]hat emergence of vocal imitation, that might’ve happened even if we’d stayed at that 12 hours per week … I cannot say with my hand on my heart it was due to increasing teaching intensity, but it’s a possibility’.[142]
[142] Transcript 250.
I appreciate that the assessment of gains in children with the challenges that the Applicant presents may not be a precise science. But presenting progress in a manner which suggests that increased hours resulted in this modest – albeit for the Applicant significant – achievement is unhelpful for the parents and others in assessing whether they should fund additional therapy.
Lastly, I am concerned about the level of collaboration between Dr Jones and Mr Q in their dealings with the Respondent, the Tribunal, and potential witnesses. The extent of this collaboration was revealed by documents produced under a summons directed to BASES issued at the request of the Respondent. Mr Q opposed the summons being issued.[143]
[143] Transcript 79, 86, 103-110.
Emails obtained as part of that material reveal frequent exchanges between Dr Jones and Mr Q, including: Mr Q providing Dr Jones with copies of the Respondent’s submissions to the Tribunal for Dr Jones’ comment; Mr Q asking Dr Jones for advice on how to respond to correspondence and submissions; Mr Q asking Dr Jones to review and make changes to draft correspondence and documents; Dr Jones offering to read drafts and prepare drafts; Dr Jones suggesting changes to drafts; and discussion between Mr Q and Dr Jones on tactics to adopt in dealing with the Respondent.
When cross-examined on this, Mr Q admitted that because of the pressures on the family he sought assistance from Dr Jones to ‘proofread’ his letters and other documents to the Tribunal and Respondent, to ‘update’ the wording so that Mr Q’s message could be ‘delivered clearly’. He denied that Dr Jones assisted him with writing documents, and that he only assisted him by ‘editing’.[144] Mr Q said that when he became aware of the Respondent’s concerns about Dr Jones’ level of involvement, he sought and subsequently received legal advice. He was advised to the effect that he should not receive help from Dr Jones if Dr Jones was to be relied on as an ‘independent witness’. He stopped doing so by 27 April 2023.[145]
[144] For example, Transcript 79-82, 104-106.
[145] Transcript 105-108.
My impression of Mr Q was that he was reluctant to accept some propositions notwithstanding evidence in support of them, was at times evasive and, in his approach to the proceedings before the Tribunal, was prepared to some tailor matters to suit the objective of obtaining more ABA.

I need only refer to three examples: the Respondent’s request for an independent assessment by Dr Maclean; Mr Q’s opposition to the Respondent’s request for a summons directed to BASES to produce documents; and the drafting of reports being sought from paediatricians.
Refusal of independent assessment by Dr Maclean
As noted above,[146] Mr Q refused to permit an independent assessment of the Applicant by Dr Maclean. He was entitled to do so, and the Tribunal so advised him when his refusal was agitated before the Tribunal on 6 September 2022. He was also told that the lack of such an assessment may be the subject of comment by the Respondent and the Tribunal may be without evidence it may find helpful.
[146] Paragraph 14.
Mr Q asserted in his evidence that he considered that an independent assessment as requested by the Respondent would have been stressful to both his wife and his son. He said that he advised Dr Jones of this during an occasion when Dr Jones was visiting. He said that his wife was not in a condition to be able to answer questions that may be asked, and that he could not engage with the assessor without his wife.[147] Accordingly, he did not want an assessment and told Dr Jones accordingly.
[147] Transcript 115.
Mr Q was shown an exchange of emails on 8 July 2022. The first was from him to Dr Jones at 10:51 AM attaching a copy of an updated Statement of Issues from the Respondent and reading:
Hi Max,
We got another statement of issues. They are just trying to delay the process by creating unnecessary questions.
Regards…
to which Dr Jones responded at 11:35 AM as follows:[148]
Gosh – this is a lazy revised SoI [Statement of Issues] isn’t it? They’ve asked very simple questions regarding your (and [the Applicant’s]) weekly schedule and warned that they will arrange for [the Applicant] to be assessed by an independent “behavioural paediatrician” at some unspecified date after the Case Conference on 02/08/22. You’re right that this amounts to no more than another delaying tactic.
…
With respect to signalling their intention to seek an independent assessment, I think you’re well placed (with your medical degrees and current position) to tackle them head on about this. First, there is no such specialty known as "behavioural paediatrics” in Australia. (The RACP lists 35 specialities within paediatrics, each with an associated advanced training program here: We can only presume that the lawyer meant to write “developmental paediatrician”. However, one such professional has already assessed [the Applicant]; namely, when he obtained a formal diagnosis of ASD. We challenge the usefulness of obtaining another dev paed’s [developmental paediatrician’s] opinion of the severity of [the Applicant’s] autism. How is this going to assist the Registrar considering this case? There are long waitlists for such appointments and NDIA must be aware of this, so this seems like just another delaying tactic … and for no good reason.
If I were you, I’d be making these types of arguments in a letter tabled in advance of your Case Conference in about 3 weeks.
[Tribunal’s emphasis added]
[148] Exhibit R5 email from Dr Jones to Mr Q dated 8 July 2022, Extracts from Summonsed Documents 1090.
Mr Q claimed that he told Dr Jones that he would not agree to an assessment, having regard to his wife’s welfare, about a week before Dr Jones’ email.[149]
[149] Transcript 117.
Dr Jones, in his evidence, saw an independent assessment as ‘adding little value’, his ‘understanding’ being that it would be a diagnostic assessment which would only confirm that the Applicant had autism. The basis for that ‘understanding’ was that the assessment would be carried out by Dr Maclean, a paediatrician, and would be no more than ‘another diagnostic assessment’:[150]
[150] Transcript 290.
DEPUTY PRESIDENT: Wouldn’t it have been of assistance perhaps, if the agency was seeking such an assessment, to have an independent assessment by someone unconnected with [the Applicant] who could give an objective view?
Dr JONES: Yes, maybe.
DEPUTY PRESIDENT: What do you mean, ‘maybe’?
Dr JONES: You know – – -
DEPUTY PRESIDENT: That’s what an independent medical assessment is all about, isn’t it?
Dr JONES: Yes, it is. Yes, it is.
DEPUTY PRESIDENT: Someone that is unconnected with the treatment of the particular patient?
Dr JONES: Yes. That’s it.
DEPUTY PRESIDENT: In order that they can bring an objective and fresh point of view – – -?
Dr JONES: That is a fair point.
…
DEPUTY PRESIDENT: Well, they may not understand all the detail, but it allows someone that is disinterested – I’m not saying uninterested – – -?
Dr JONES: Yes, with no – – -
DEPUTY PRESIDENT: – - – but disinterested in the outcome?
Dr JONES: – - – conflict of interest, sure.
…
DEPUTY PRESIDENT: So did that not occur to you at the time that that may be why the NDIA was seeking an independent assessment?
Dr JONES: Well, again, it was – I mean I’ve seen these before in the past, and it’s been no more than another diagnostic assessment.
DEPUTY PRESIDENT: Well, it may be, may be not … But your judgment as a professional was that there was no value in it, and that’s what you advised [Mr Q]?
Dr JONES: Well they were saying there was no value in it, and I was supporting that.
I do not accept Mr Q or Dr Jones’ evidence on this point. The ample, other, evidence of Mr Q consulting Dr Jones over the course of the proceedings before and after this occasion leads to the inference that Mr Q sought Dr Jones’ tactical counsel as to whether he should agree to an independent assessment. There is no suggestion in the email exchange about a previous conversation touching on concern about Mrs Q’s mental or physical well-being; indeed, the tone of the correspondence is that there is enough evidence to establish their position, that an assessment would add nothing more to the Applicant’s diagnosis, and that the request was a ‘delaying tactic’. The casual and repeated references to ‘we’ suggests a close alignment of interests that is reinforced by other correspondence.
I am satisfied that, if Dr Jones had counselled that an independent assessment would do no harm to the case they were seeking to present, and may be to the Applicant’s advantage by confirming the desirability of the supports being sought, Mr Q would have agreed to one. As it is, Dr Jones endorsed – if not encouraged – Mr Q’s refusal to allow the Applicant to be independently examined and assessed by Dr Maclean. The result is that the Tribunal is invited to rely on Dr Jones’ professional opinion as to the need for and likely efficacy of doubling ABA hours.
Opposition to the Respondent’s request for a summons directed to BASES to produce documents
In October 2022 the Respondent sought the issue of a summons directed to BASES to produce diverse records and correspondence. The question of whether the summons should be issued was the subject of an interlocutory hearing on 2 November 2022.[151] Mr Q argued on the Applicant’s behalf. He wrote several letters to the Tribunal outlining his objections to the summons. His objections were several-fold, in substance arguing the relevance of the material being sought, the breadth of the material being sought, that there was already enough material before the Tribunal on the issues and, that if anything further was required, it need only be asked for and BASES would provide it. He took particular exception to the request for ‘any brochures, marketing material or information provided to the parents’, contending that they were not relevant to the case: he had conducted his own research into BASES and had received no brochures or marketing material.
[151] QLYQ and National Disability Insurance Agency [2022] AATA 4384.
At the substantive hearing, Mr Q was cross-examined on the correspondence between him and Dr Jones. He was asked if he wanted to add anything to his answers, and averred that:[152]
Yes. See, I will say, I mean I’ll repeat one statement, the fact that we have provided all this material to the agency is self-indicate [sic] that we have nothing to hide.
[152] Transcript 121.
It was pointed out to him that he had opposed the summons. He claimed that his opposition to the summons was ‘[b]ecause we thought it’s delaying the process’.[153]
[153] Transcript 121.
In fact, and unknown to the Tribunal at the time, it was Dr Jones who advised Mr Q to oppose the summons and advised Mr Q what arguments to present in opposition to it.[154] Dr Jones denied having written the submissions, but it is plain from the documents produced under summons that he made substantive and extensive changes to Mr Q’s drafts, effectively rewriting them.[155]
[154] Transcript 271-272.
[155] Exhibit R5 SM1 340-344, Extracts from Summonsed Documents 6551-6554.
Dr Jones claims he advised Mr Q to oppose the summons ‘[b]ecause that is a lot of work. And it took me a whole lot of time … it imposes unnecessary delay’.[156]
[156] Transcript 271.
It is notable that Dr Jones did not apply to have the summons set aside based on arguments of oppression, in preference to using Mr Q as his agent. It is also notable that the level of interest taken by Dr Jones in the conduct and progress of the Applicant’s case, and the degree to which he and Mr Q collaborated, would not have been available to the Respondent had opposition to the summons succeeded: indeed, his role in opposing the summons may not have come to light.
Drafting of reports being sought from paediatricians
Mr Q testified that he had spent some 15 months sending Consultant Paediatrician Dr Karande research literature and other material on ABA with a view to persuading him to write a letter of recommendation that the Applicant should receive additional ABA hours.[157] Dr Jones provided the material.
[157] Transcript 110-114.
In response to a copy of a letter sent to him by Mr Q on 21 September 2022, Dr Jones emailed:[158]
This is tricky because we need to re-write the author’s statements to suit our purposes but not so much that he refuses to make the changes. How about suggesting this to him? They would be changes to only the second paragraph.
[suggested wording provided]
Note that the final sentence (in bold) has NOT been changed. It’s word-for-word what another Pead [paediatrician] wrote in one of those letters, but that’s okay – they could all be referencing the same website for Paeds I guess.
Hopefully, your Paed will see you as a father just doing the best for his son and wanting to help the Paed with clear statements and plenty of evidence to support them.
Good luck.
[158] Exhibit R5 Document SM1, Extract from summonsed material 716.
On 17 October 2022 Mr Q, apologising for not having done so sooner, sent to Dr Jones a copy of Dr Karande’s letter to the Agency dated 20 September 2022. The next day, Dr Jones responded:[159]
Wow! You’ve helped Dr Karande write a near-perfect letter to the NDIA. Good for you [Mr Q]. It was worth persisting with him I reckon. It will be interesting to see how [name of the then lawyer for the Respondent] responds to this new piece of evidence.
[159] Exhibit R5 Document SM1, Extract from summonsed material 987.
On 20 September 2022, Dr Karande had written to the Agency in the following terms:[160]
Dear NDIA Planner,
This is to confirm that [the Applicant] has been diagnosed by myself with ASD level 3 severity, Language impairment and GDD.
[The Applicant] has been having ABA therapy for Autism, which is the evidence-based treatment for severe ASD and I recommend the ongoing ABA therapy for [the Applicant] with appropriate intensity of 20 hours per week for his condition.
The published research in peer-reviewed journals clearly supports the use of ABA as a part of early intervention for Level 3 Autism. Considerable published research (and some government-commissioned literature reviews) identifies the number of hours per week of 1:1 ABA as a critical determinant of the outcome generated by this intensive therapy. Better outcomes are achieved with more hours per week and at least 20[161] hours per week has been recommended by Australian researchers (Prior & Roberts, 2012; Roberts and Williams, 2016). The goal of the therapy is to close the developmental gap and to restore the patient to what has been his developmental trajectory, had he not suffered from the condition of Autism. The intensity and the duration of the therapy should be adjusted to achieve this aim.
The long term costs to the community of caring for [the Applicant] throughout his life, as a consequence of not providing for his adequate intervention at this critical time would be substantially more if he misses on the ASD specific therapies and early intervention for GDD. The interventions that may well make him independent and not in need of community support.
Thanks for your ongoing involvement in [the Applicant’s] care. Kindly do not hesitate to call and discuss if needed.
[Tribunal emphasis added]
[160] Exhibit A1 Document A11, Joint Hearing Tender Bundle 168-169.
[161] Dr Jones’ suggested wording in his email to Mr Q of 21 September 2022 was ‘25 hours per week’.
Dr Jones’ explanation for all this was that he was asked by Mr Q for a succinct statement about the evidence supporting intensive ABA. Mr Q told him that he had provided Dr Karande with reports, videos of sessions with the Applicant, and copies of research papers but, while Dr Karande was supportive, he was ‘feeling quite overwhelmed’ by the material, wanted guidance to know how other paediatricians might summarise the research, and asked for some key references. Dr Karande did not contact Dr Jones and Dr Jones had not personally spoken to Dr Karande.
Initially, Dr Jones’ evidence was that he had not seen the letter that Dr Karande had in fact sent, and that he had no interest in seeing its final form – as far as he was concerned ‘I’d done my bit’.[162] However, when shown the emails of 17 and 18 October he said his recollection was wrong.[163] Mr Q’s evidence was that Dr Jones had congratulated him because he was aware of the work that Mr Q had put in and was ‘very excited’.[164]
[162] Transcript 277.
[163] Transcript 279.
[164] Transcript 114.
The disparity in dates suggests either that Dr Karande had already sent his letter by the time Dr Jones received a copy of the one the subject of his comment of 22 September; that Dr Karande’s letter he received on 17 October was back-dated to 20 September; or, as claimed by Mr Q, the discussion about re-writing a paediatrician’s letter was with regard to some other paediatrician, not Dr Karande.[165] Nevertheless, as it happens, the passages emphasised above reflect part of what Dr Jones had suggested as changes.[166] It is also troubling that it was thought proper to ‘guide’ a medical professional to write letters of emphatic support for a treatment or therapy with which he was unfamiliar, and present it as independent evidence.
[165] Transcript 113.
[166] Exhibit R5 Document SM1, Extract form summonsed material 716, 717.
I acknowledge Dr Jones’ actions may have been motivated by a genuine desire to help the Applicant and his father, however the evidence before me leads me to conclude that Dr Jones is a witness far from disinterested in the outcome, is committed to the provision of as much ABA therapy as parents can afford or the NDIA can be persuaded to pay for, and is prepared to work behind the scenes to attempt to secure such funding.
In the circumstances, I consider that I cannot rely on Dr Jones’ evidence where it is not supported by other information, and I do not find Dr Jones’ evidence of the benefits of additional hours of ABA to be helpful or persuasive.
The Respondent contends that Mr Q, if not coached in what to say to the Tribunal, has sought and received advice from Dr Jones in preparing for the hearing. I agree. Dr Jones has a plain financial interest in advocating for ABA as the best prospect to assist the Applicant’s situation. Mr Q’s desperation to help his son and the results that he has seen to date have convinced him that there is a sound basis for Dr Jones’ advocacy of as many hours as Mr Q and his wife and the NDIS are prepared to pay for. To maximise gaining funding, Mr Q has been prepared to be counselled and advised by Dr Jones as to the content and style of letters and communications and as to the approach Mr Q should take to dealing with the Agency and others. Most disturbingly, Mr Q has been used to try and block the production by way of summons of proof of such relationship and other material pertinent to the issues before the Tribunal, and to tailor evidence.
Dr Karande was not called as a witness. The Tribunal is left with his recommendation of 20 September 2022, which is untested. It appears that it took some 15 months to obtain, and that the material he was relying on was provided by Dr Jones and Mr Q. I doubt the extent to which his recommendation of additional hours of ABA is truly his and properly informed. I place no weight on his recommendation.
Dr Erin Leif, ABA Practitioner
Like Dr Jones, Dr Leif is an Australian board-certified behaviour analyst. She has a PhD in behavioural analysis from the Western New England University in Massachusetts.[167] The PhD program is designed for students to achieve a ‘BCBA-D’ certification with the Board.[168]
[167] Transcript 305, 327.
[168] Transcript 327-328.
Dr Leif’s certification is from the Association for Behaviour Analysis Australia (ABAA), an organisation whose membership is voluntary. She is both a member and on its board.[169] The ABAA engages in ABA advocacy work in Australia.[170]
[169] Transcript 326-327.
[170] Transcript 327.
Dr Leif had previously worked as an ABA practitioner in a business called ‘Lizards’. She has not been involved in the clinical delivery of ABA therapy since 2018, when she became a senior lecturer at Monash University.[171] There she teaches the university’s Master of Applied Behavioural Analysis for students to become ABA practitioners. She also trains ABA practitioners.[172]
[171] Transcript 329.
[172] Transcript 305, 328.
Dr Leif is the vice-president of an organisation known as ‘Autism Pathways’, which provides training in ABA, runs conferences about ABA, makes submissions about ABA to governments and funding bodies, and generally advocates for ABA. She has run webinars to assist parents obtain funding for ABA therapy from the NDIS. She is involved with a publication from Autism Pathways providing information to parents seeking funding from the Scheme.[173]
[173] Exhibit R4; Transcript 329-334.
Dr Leif is not a medical practitioner and does not have qualifications in medicine or as a paediatrician.[174] She does not possess any qualification recognised by AHPRA.[175]
[174] Transcript 328.
[175] Transcript 327.
Dr Leif has never met the Applicant. Her only dealings with his family have been correspondence with respect to a report she had written, and to engage her assistance for the hearing.[176] Dr Leif did not have any of the material provided in this case.[177] She had no knowledge of the Applicant’s developmental progress from the interventions he had received from, or the quality of the services he had been provided by, BASES.[178]
[176] Transcript 306.
[177] Transcript 317.
[178] Transcript 334.
The report she had supplied, and which was received in evidence, was one dated 27 July 2022 addressed ‘To Whom It May Concern’. It was originally compiled and provided as an information resource to Legal Aid Western Australia with respect to the ‘science and professional practice of behaviour analysis’. It outlines the history of ABA therapy, what it involves, refers to research about the efficacy of ABA, and identifies considerations in deciding the intensity of intervention (hours per week of direct therapy) and the number of months or years of therapy.[179] The report was not a systematic review of research, and Dr Leif conceded that there are likely pieces of research that are relevant to ABA that are missing.[180] Under cross-examination, it was put to her by Counsel for the Respondent that her references to research ended at 2016, and that she had ‘cherry-picked’ what to include as an advocate for ABA. She responded:[181]
Yes. Okay, so I am a board-certified behaviour analyst. My entire career has been about the, I guess, study of behaviour and understanding applied behaviour analysis was a scientific discipline. And understanding what the research tells us about the potential efficacy of ABA-based interventions. So I think that there’s no way to separate. Obviously, I’m an advocate for the science that I practice, just like a doctor would be an advocate for medicine. A teacher would be advocate for education. I do agree, yes. But am I an advocate for high-intensity early intensive behavioural intervention for every single child, irrespective of their unique presentation? Absolutely not. I am an advocate for clinicians making informed decisions about individualising programs in ways that benefit children.
[179] Exhibit A1 Document A7, Joint Hearing Tender Bundle 126-159; Transcript 306-308, 334-335.
[180] Transcript 347.
[181] Transcript 348.

Dr Leif testified that ABA is a framework for skill building which can be effective for children with a range of different disabilities.[182] It is often categorised as a single type of intervention, and an alternative to (say) speech therapy, whereas ABA ‘when used as is a framework, might incorporate a variety of different approaches, teaching strategies, behaviour support strategies, to address skills across different developmental domains’.[183] Autism is one of the areas where ABA has been most widely applied and researched for early intervention.[184] ABA is funded by insurance companies in the United States of America. She asserted that research had shown that ABA-based early interventions has shown better outcomes than speech or occupational therapy.[185]
[182] Transcript 309.
[183] Transcript 323-324.
[184] Transcript 309.
[185] Transcript 309.
Dr Leif opined that based on the studies she had seen, ‘children who experienced the higher intensity of ABA based interventions had generally better outcomes and for those studies that measured things like transition out of the ABA program into more … mainstream school, or mainstream service settings, … had a higher likelihood of being able to transition into mainstream school or to … less intensive community-based support over time’.[186] She would say that ‘more hours are beneficial when the quality of those hours is good’.[187] Further, Some comparison studies have found that gains in IQ have been ‘statistically significant and higher for children in the ABA, or the higher intensity intervention group, than for children in control or comparison groups, which may include access to lower intensity intervention or different types of intervention’.[188]
[186] Transcript 310.
[187] Transcript 311.
[188] Transcript 311-312.
However, statistical analyses and comparisons need to be treated with caution, ‘because what we’re generally looking for in Applied Behavioural Analysis is something called social significance, which is the degree to which the behaviour change is viewed as meaningful and important by the child in the family and it could be that a behaviour change that might not show up on a standardised test as being statistically significant is incredibly important to the family’.[189]
[189] Transcript 312.
Whether a child would benefit from additional hours depended on the child’s unique response to intervention and how the child is benefiting from the program of intervention.[190]
[190] Transcript 314.
Given that ABA is a framework for delivering a range of different educational and behavioural support strategies, she considered that there was no reason that ABA could not be effective where the child has autism, intellectual disability, and other co-occurring conditions, but she was not aware of any research that looked at the special chromosomal condition with which the Applicant has been diagnosed. There is no research either way.[191]
[191] Transcript 323.
Dr Leif was involved in the drafting of a 52-page document published by Autism Pathways when it was known as ABiA, the Autism Behavioural Intervention Association, intituled ‘Navigating the NDIS – How to get the funding your child needs’ and made available to parents on its website.[192] The document was intended as a general overview of ABA, the practice and program components, and some of the research concerning ABA.[193] It did not refer to any research after 2016.[194]
[192] Exhibit R4; Transcript 330, 332-333.
[193] Transcript 335.
[194] Transcript 338.
Dr Leif did not think that IQ was a great measure and did not reflect skills that were meaningful. It was not a worthwhile objective for ABA rather than to improve measurable skills.[195]
[195] Transcript 350.
Although Dr Leif was satisfied that ABA will provide benefits under the right circumstances to the right person, the boundaries of what constitutes sufficient and optimal intensity of the intervention can only be ‘estimates’ and would vary from case-to-case and, in effect, by trial-and-error.[196] She also accepted that there was a risk of a service provider overestimating and exploiting circumstances, and ‘over servicing’ clients, where there is no check or measure other than the service-provider’s self-assessment.[197]
[196] Transcript 352.
[197] Transcript 353.
I consider that Dr Leif’s evidence is supportive of the benefits of ABA. But as it is of a general nature it does not assist me in determining the number of hours, or intensity, of the therapy that is reasonable and necessary in this case.
Dr Micheal Paige Sandbank
Dr Micheal Sandbank is an Assistant Professor at the Department of Occupational Science & Occupational Therapy, School of Medicine at the University of North Carolina. She has a PhD in Special Education, specialising in studying autism and early childhood special education, early development and, particularly, language and communication. Her career began as a teacher at the New England Center for Children, an ABA-based residential school for children and adolescents on the autism spectrum. She taught special education and obtained her Masters in Special Education and subsequently her Doctorate. She also completed training in applied behavioural analysis as part of that.[198]
[198] Transcript 185.
In 2017 Dr Sandbank was the lead research investigator for ‘Project AIM’ (Autism Intervention Meta-analysis). Project AIM involved a comprehensive meta-analysis of all available studies in respect of children up to eight years of age, with ASD, and tested the effect of non-pharmacological interventions on any outcome for these children. Project AIM was selected as one of the Top 20 Advances in Autism Research in 2020 by the Interagency Autism Coordinating Committee of the US Department of Health & Human Services.[199]
[199] Exhibit R2 Document R3, Joint Hearing Tender Bundle 1697.
In November 2021, Project AIM updated its investigation by identifying and analysing any further studies undertaken post-2017.
As the lead researcher of Project AIM Dr Sandbank has read and analysed the full set of available experimental or quasi-experimental group studies in respect of early non-pharmacological interventions for children with ASD, some 290 reports, published before November 2021. In addition, and prior to providing her report to the Tribunal, Dr Sandbank conducted a further search for any relevant studies published after November 2021 and prior to the hearing.
The purpose of the meta-analyses is to provide a quantitative summary of the entire set of the available research studies on interventions for children with ASD, which includes considering whether an intervention is effective for improving an outcome for a child with ASD, and how effective the intervention is. In doing so, Dr Sandbank identified substantial flaws in the methodology of many of these studies, thereby limiting confidence in the respective findings.
Dr Sandbank prepared two reports for this matter, the first dated 6 October 2022[200] and the second 20 July 2023.[201] Neither expresses an opinion on the Applicant, rather they are analyses of the research literature about ABA and its effectiveness.[202]
[200] Exhibit R2 Document R3, Joint Hearing Tender Bundle 1697; Transcript 185.
[201] Exhibit R2 Document R9, Joint Hearing Tender Bundle 2540; Transcript 185.
[202] Transcript 185.
In her first report, Dr Sandbank opines that:[203]
… when considered in total, the available clinical research is mixed in both quality and conclusions, and does not satisfactorily establish that more intensive supports are unilaterally more effective than less intensive supports. Specifically, it does not establish that 20+ hours per week of early childhood intervention is unilaterally more effective than less intensive supports, such as 5 and 15 hours per week.
[203] Exhibit R2 Document R3 2, Joint Hearing Tender Bundle 1698.
The substance of her critique is that the various studies of ABA effectiveness reveal mixed evidence of quality and conclusions:[204]
… so there is evidence which suggests that greater intensities are associated with improved developmental outcomes. There’s also evidence which fails to find – or rather studies which fail to find evidence for that association. But there is also pervasive quality concerns. And so considering this … in totality, I don’t feel that it has satisfactorily been established that greater intensities will produce greater developmental gains and general improvements.
[204] Transcript 186.
By unilaterally, Dr Sandbank means:[205]
That greater amounts of intervention are not always or reliably more effective than lower amounts of intervention.
[205] Transcript 186.
As to whether the contrary is established, she stated:[206]
I’m not saying that the opposite is established. Similarly, we have evidence that – there are studies, for example, where children receive low intensity interventions and effects – there are effects as well. A lot of those studies suffer from similar quality concerns, but some of them do not. Some of them are actually very rigorous and compelling. And so I’m not saying the opposite. I’m saying that there is mixed conclusions and mixed quality across the board.
[206] Transcript 186.
Dr Sandbank noted two other difficulties in assessing the available research. One is the diversity of programs under the umbrella of ABA or early childhood intervention, which are ‘so varied across the world and also just within regions, from clinic to clinic, if its provided by a clinic’.[207] Another is the question of ‘intervention’ or ‘treatment’ ‘fidelity’; namely, not knowing whether those delivering therapy the subject of studies are properly administering the treatment they purport to be providing: ‘we don’t have a clear way that we can measure across studies how well are they adhering to what is known as an, ‘ABA’’.[208]
[207] Transcript 195.
[208] Transcript 189.
Among her observations are that:[209]
… it is very common for ABA researchers and practitioners – behavioural analysts – to believe very firmly that Applied Behavioural Analysis therapy is the only evidence-based treatment for improving outcomes for children on the autism spectrum. And I think that that is something that is frequently stated – and because it’s often… stated … it becomes an echo chamber, essentially, when one trustworthy person says this, another person says, ‘Okay, I trust them and they said it.’ And it becomes this oft repeated thing that folks often don’t think to question because it’s something that’s believed by a lot of people in the field.
[209] Transcript 194-195.
Dr Sandbank also advised:
(a)That some early intervention by way of ABA may be therapeutic but one is unable to identify a number of hours or intensity that would be a minimum threshold;[210]
(b)It is not easy to identify what one would look for in a particular case to determine whether additional hours of ABA therapy would be beneficial: ‘We would like clearer values that could guide clinical decisions. But we don’t have them.’;[211]
(c)One needs to consider not only the benefit of additional hours, but the potential loss. As intensity increases during a week, children lose opportunities to engage in other activities that are important in their development, such as attending school, spending time with the family and community, and other developmental opportunities; as well as rest and recreation;[212]
(d)It should be considered whether the child has time for rest and recreation and ‘just time to be a kid’.
(e)There is no ‘rule of thumb’ as to what to look for to decide whether more hours or frequency of therapy may be of benefit.[213]
(f)One must have regard to the ‘ceiling effect’, where a participant can’t get any higher, either because they are already doing well, or simply do not improve with intervention at certain ages.[214]
[210] Transcript 198.
[211] Transcript 198.
[212] Transcript 199: ‘So we’ve had examples in the United States, of clinics saying that caregivers should forego preschool for their children because they need to be in the clinic all day. That could be meaning that the child is going to be segregated and only with other children with disabilities instead of surrounded by their typically developing peers.’
[213] Transcript 199.
[214] Transcript 200.
Dr Sandbank, under cross-examination, advised that she did not know of any high-quality studies that document harm or significant negative effects for ABA.[215]
[215] Transcript 222.
As to Roberts and Williams (2016), Dr Sandbank points out that the most recent primary studies which informed their conclusions were published in 2012. With reference to the work of Project AIM, she estimated that Roberts and Williams’ conclusions were informed by approximately a quarter of the controlled group studies that have been conducted to date (viz: as at July 2023):[216]
While Roberts and Williams’ (2016) conclusions were broadly consistent with the available evidence at the time, the pace of discovery in the field of autism intervention has rapidly advanced. The available evidence has since quadrupled, and more recent reviews draw different conclusions than Roberts and Williams about what practices are evidence-based. More current reviews and corresponding conclusions have been offered by myself (Sandbank et al., 2020),[217] the Lancet Commission on the future of care and clinical research in autism (Lord et al., 2022)[218] and Australia’s most recent National Guideline (Trembath et al., 2022).[219]
[216] Exhibit R2 Document R8 5, Joint Hearing Tender Bundle 2544.
[217] Exhibit R2 Document R3 MS2 Dr Micheal Sandbank et al, ‘Project AIM: Autism Intervention Meta-Analysis for Studies of Young Children’ (2020) Vol 146 No 1 Psychological Bulletin 1-29, Joint Hearing Tender Bundle 1732-1760.
[218] Exhibit R3 Document 5 Catherine Lord et al ‘The Lancet Commission on the future of care and clinical research in autism’ (December 2021) Vol 399 Lancet 271-334 (attachment to Respondent’s briefing letter to Dr Sandbank), Supplementary Joint Hearing Tender Bundle 1237-1300.
[219] Exhibit R2 Document R8 Tab 7 Autism CRC ‘National Guideline for supporting the learning, participation, and wellbeing of autistic children and their families in Australia’ (December 2022), Joint Hearing Tender Bundle 2394-2539.
Dr Sandbank’s evidence was informative and persuasive. It confirmed the impression I have obtained from the evidence of Dr Jones and Dr Leif that there is no clarity as to the level of early childhood intervention, by ABA or otherwise, that can be considered as the ‘minimal’ or ‘optimal’ to provide benefits to this Applicant.
Dr Kenneth Maclean, Paediatrician and Clinical Geneticist
The Respondent called Dr Maclean, a paediatrician and clinical geneticist. He testified to having extensive experience in the care and assistance of children diagnosed with autism, global developmental delay and intellectual disabilities. As a geneticist, he also has expertise in the underlying genetic basis and nature of such conditions, the diagnostic approach and its interpretation, and the consideration of prognoses.[220]
[220] Transcript 367.
Dr Maclean acknowledged that ABA is an established and recognised therapy.[221]
[221] Transcript 388.
Dr Maclean prepared two reports for the review, dated 29 March 2023 (first report) and 24 May 2023 (second report) respectively.[222] He was the only medical practitioner who gave evidence. He gave carefully considered evidence, expressed measured opinions, and had regard to the available treating records and the available research, including that of Dr Sandbank. Importantly, he had no interest in the outcome of the review.
[222] Exhibit R2 Document R6, Joint Hearing Tender Bundle 2079-2138; Document R7, Joint Hearing Tender Bundle 2139-2207.
The Respondent had asked to have the Applicant assessed by Dr Maclean. As noted, Mr Q refused to allow it. Accordingly, Dr Maclean’s assessment and report was based on the files and information provided to him.[223] He explained in detail the sort of better insights he might have gained from the opportunity to not only assess the Applicant personally, but to speak to the Applicant’s parents.[224]
[223] Transcript 369.
[224] Transcript 369-371.
Dr Macleans, having reviewed the reporting from BASES and other reports about the Applicant’s developmental progress, was of the opinion that they demonstrated minimal gains with continuous ABA therapy.[225] In his first report. He opines:[226]
There are no clear grounds to recommend an increase in ABA therapy hours based on limited gains to date with regular intervention, the written conclusions of the therapists and the likelihood of significant cognitive impairment as a factor relative to rate of skill acquisition.
[225] Exhibit R2 Document R6 2130; Transcript 378.
[226] Exhibit R2 Document R6, Joint Hearing Tender Bundle 2131.
He could not support the conclusion that the achievement of milestones and maintenance of the skills that the Applicant has acquired are due entirely to the teaching provided by BASES staff. It could also relate to what is happening at home, parental modelling and reinforcement, age and maturation. He considered it difficult to understand how they can reach such as definitive conclusion.[227]
[227] Transcript 378.
As to other supports, he considered:[228]
The involvement of a speech therapist is recommended – 1 hour per week.
It is not possible to predict if a comparable outcome might be achieved with a keyworker model i.e. OT, SP and behavioural support.
There remains merit in continuing ABA and with commencement at school in 2024 in my mind, continuation at similar hours eg 10-12 ABA contact hours per week + speech therapy with review once established in the school setting.
[228] Exhibit R4 Document R6, Joint Hearing Tender Bundle 2136.
In his second report, Dr Maclean took into consideration advice from Mr Q, via the Respondent, that the Applicant was to be attending the pre-primary Education Support Centre at his local school from 2023, the same school where he had attended kindergarten. He would be attending school daily. The Respondent has also been informed that the Applicant was being picked up early for two hours of ABA at home, and that the family were focussing more on speech skills. Dr Maclean reported:[229]
As indicated previously and in considering the parent email, effectively a statement of issues, speech therapy one afternoon per week in the home is recommended as a key intervention.
It is not clear if any non-evidence-based co-interventions are continuing to be provided to the Applicant at the direction of the family (see page 37-39 of original report; email from Dr Max Jones to parents). Given the demands of a school day for a pre-primary age student, the primary focus on ABA and speech therapy, it is important to ensure that interventions are evidence-based and that the Applicant is not ‘overloaded’ such that fatigue or aggression hinder progress and diminish potentially meaningful gains from key interventions.
…
That the Applicant has been able to obtain a place at the [redacted] ESC is positive. It provides consistent opportunity to access to behavioural therapy intervention across the school-day five days per week. Provision of ABA in addition to this outside of school hours is likely to be of benefit with consistent access to therapy over the longer term. Intensification has had a limited impact or response to date. There is merit with ABA intervention 2-3 afternoons per week – allowing a focus on personal and domestic goals and support over the weekend – when the Applicant is not fatigued.
[229] Exhibit R2 Document R7, Joint Hearing Tender Bundle 2146-2147.
In the Applicant’s case, the chromosomal disorder and delays in early motor skills raises the question of a neurological disorder. The Applicant’s chromosomal abnormality is of a character associated with a large number of developmental disabilities, ranging from moderate to the severe. It may be genetic and may be inherited from either the father or the mother. It is not a treatable condition, but it is relevant to the therapy for the child’s development and assessment of any associated problems, for example seizures. It may have an impact on learning, which is important ‘because if we’re going to look at aiding a child’s learning, we want to make sure there’s not a barrier or a factor that would be impeding that … there are clinical implications that are really important for helping him with his development, learning and general health, as well as for the family’.[230] However, he was not saying that a child with a cognitive impairment should not get more hours of therapy because of that impairment and that therapy would not work.[231]
[230] Transcript 380.
[231] Transcript 394.

The information about the Applicant’s developmental status suggests severe intellectual developmental delay, requiring a high level of support and a long-term view of developmental interventions. However, ‘intensifying his therapy is extraordinarily unlikely to result in rapid gains’.[232] There must be reasonable expectations regarding gains. Expanding on that, Dr Maclean advised:[233]
I think that ongoing therapy will result in gains but a doubling of therapy is … not going to lead to an exponential increase in response. … he’s attending school. He’s getting the opportunity for that. I guess – what am I thinking – in terms of hours, might be regular sessions throughout the week and on the weekend. So, and I would deem that as an intensive – still be an intensive approach.
[232] Transcript 381.
[233] Transcript 382.
Dr Maclean did not cavil at maintaining the current number of hours focussed on particular skills, rather than perfecting or maximising response to targets, and then gradually expanding those skills rather than increasing intensity through hours and frequency of intervention.[234] Hours should not interfere with normal socialisation and the contribution of the school.[235] Intensive therapy can be very fatiguing for a child, particularly so at the end of a school day. He considered, taking into account school hours and the expectations of the family, that intervention in the order of 10-12 hours per week is maximising resource utilisation. He did not see an increase to (say) 30 hours was going to give a response two or three times that of 10-12.[236]
[234] Transcript 382.
[235] Transcript 382.
[236] Transcript 383.
As for 20 hours, on top of a child having six hours of school, five days a week, would be ‘a lot of extra time and a lot of fatigue’ and not much ‘downtime’.[237] In short, he could not see a two-fold benefit from 20 as against 10 hours per week.[238]
[237] Transcript 383.
[238] Transcript 384.
Fatigue was a risk. It may manifest either as disengagement and behavioural difficulties in the home environment or, if he is comfortable at home, at school. It is a matter for judgment as to how much more one can ‘push’ a child without pushing them off the edge and having an adverse reaction. Therapy for 10 hours doesn’t necessarily mean 11 or 12 will be as efficacious: there may be in fact ‘a diminishing return on investment’ from the point of view of behaviour.[239]
[239] Transcript 402-203.
Dr Maclean was asked about his recommendation for speech therapy. He explained that a paediatric therapist is an expert in paediatric speech disorders; autism at its core is a speech and language disorder, together with social communication difficulties, and speech therapy is a cornerstone of management for children with autism; the usual approach to significant developmental difficulties is multidisciplinary rather than monotherapy; and he would expect an inclusive approach from an ABA therapist.[240]
ABA therapists have expertise. ABA therapists’ expertise actually seeks to cover more domains, and the particular expertise of a speech therapist I would view as superior when it comes to speech and language therapy in a child.
[240] Transcript 405-407, 408.
As noted, there are no reports before the Tribunal from the speech therapists that had been engaged for the Applicant and who, it was said, had not been able to achieve progress.
It is regrettable that Dr Maclean did not have the opportunity to assess the Applicant in-person and had to form his opinion only from the secondary materials available. However, his evidence complemented that of Dr Sandbank, and being disinterested in the outcome of this matter, was to be preferred to that of Dr Jones. I accept his opinion that although chromosomal disorder does not prevent the Applicant from achieving gains through EIBI or ABA, it may bear upon his response to therapy and be a barrier that needs to be recognised. I also accept the desirability that the focus of assisting the Applicant ought not be on ABA to the exclusion of other disciplines. I am concerned that Dr Jones promotes over-reliance on a familiar tool – that ‘to a man with a hammer, everything looks like a nail’ – and that there are no limits other than funding and hours in the day to what can and should be attempted by ABA.
CONSIDERATION
Section 34(1) of the NDIS Act requires a decision-maker, including the Tribunal, to be satisfied of each and all the prescribed criteria in order fund a reasonable and necessary support.
I shall address each in turn.
Section 34(1)(a): the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
Mr Q’s evidence of the gains that the Applicant has made satisfies me that early childhood intervention and behavioural intervention, in the form of ABA therapy, has been, and to some degree will continue to be, beneficial to the Applicant and will assist him to pursue his stated goals, objectives and aspirations.
Section 34(1)(b): the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
Mr Q’s evidence of the improvements in the Applicant’s skills and behaviour satisfies me that early childhood intervention and behavioural intervention has assisted the Applicant towards communication, social interaction, learning, mobility, self-care, and self-management. Further improvement by way of such intervention will be important to enable the Applicant to further develop those skills. I am also persuaded that such support in the form of the ABA therapy he has received has helped him acquire skills which, if further developed, can provide a foundation for facilitating his social and economic participation.
Section 34(1)(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;
I am not persuaded that the extra hours of ABA being sought represents value for money.
It is contended on behalf of the Applicant that doubling the number of hours will substantially increase (if not double) the outcomes, or that outcomes can be achieved sooner (if not in half the time).
I am not prepared to rely on the evidence of Dr Jones as to the results to be achieved through greater hours of therapy, and the evidence of Drs Leif, Sandbank and Maclean do not support the proposition that an increase in hours will result in substantially improved benefits. Such evidence as there is of likely gains by an increased number of hours is not convincing.
Dr Maclean suggests that 10-12 hours of ABA plus one hour of speech therapy per week may be efficacious. However, in the absence of further, objective, evidence as to the Applicant’s current situation, and of the possible risk of fatigue occasioned by schooling and therapy, I am not prepared to change the current level of supports.
Section 34(1)(d): the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
While I am satisfied early childhood intervention is likely to be effective and beneficial for the Applicant, I am not so confident in respect of the level of ABA therapy being sought. The Applicant’s case is founded on observed improvements after a period of intensive application of ABA therapy, supplemented by the advocacy of the service provider, BASES, through its principal Dr Jones. Leaving aside questions of self-interest, I am not satisfied on the material before me that a greater number of hours devoted to ABA therapy will necessarily result in a commensurate improvement of skills on the part of the Applicant.
I accept Dr Sandbank’s evidence that:
(a)When considered as a whole, the available clinical research is mixed in both quality and conclusions;
(b)The evidence does not satisfactorily establish that more intensive supports are, alone, more effective than less intensive supports. Specifically, it does not establish that 20-plus hours per week of early childhood intervention is unilaterally more effective than less intensive supports.
I also accept Dr Sandbank’s view that the available body of research evidence indicates that:
(a)There are no set number of hours per week of practitioner-delivered supports that lead to the best outcomes for all children; and
(b)The concept that supports delivered in greater amounts consistently leads to better child and family outcomes is not supported by the evidence.
Given the questions raised in the professional literature produced to the Tribunal, and the evidence of Drs Sandbank and Maclean, I am not satisfied that there is a current, clear, good practice regarding ABA therapy, and cannot be satisfied that an increase to 20 hours per week – let alone more – will be effective and beneficial.
I note that some functional skills have been said to be established. I am concerned that the focus by the Applicant’s family on ABA therapy, encouraged by the service provider, to the exclusion of other interventions which may now prove beneficial such as dedicated speech and occupational therapy, may not be to the Applicant’s advantage.
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 the community to provide;
Having regard to my findings with respect to section 34(1)(c) and (d), it is unnecessary to consider this further.
Section 34(1)(f): the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services …
If the other criteria are met, there is no evidence that the support being sought would be other than appropriately funded by the NDIS. In the circumstances, the question is moot.
CONCLUSION
Having regard to the above, I am not satisfied that the Applicant’s request for additional hours dedicated to ABA is a reasonable and necessary support that should be funded by the NDIS.
Accordingly, I affirm the decision under review.

I certify that the preceding 168 (one hundred and sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Mischin

..............................[Sgd]..........................................
Associate
Dated: 3 October 2024

Date(s) of hearing: 23, 24 and 25 January and 16, 17 and 18 July 2024

Date of final submissions: 26 June 2024

Applicant: In person
Represented by Mr Q

Counsel for the Respondent: Mr J Sproule
Instructed by Ms C Penny

Solicitors for the Respondent: Sparke Helmore

[2024] AATA 3518

3 October 2024

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Administrative Law

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Remedies

Date(s) of hearing:	23, 24 and 25 January and 16, 17 and 18 July 2024
Date of final submissions:	26 June 2024
Applicant:	In person Represented by Mr Q
Counsel for the Respondent:	Mr J Sproule Instructed by Ms C Penny
Solicitors for the Respondent:	Sparke Helmore