RXFR and National Disability Insurance Agency (NDIS)
[2024] ARTA 188
•16 October 2024
RXFR and National Disability Insurance Agency (NDIS) [2024] ARTA 188 (16 October 2024)
Applicant/s: RXFR
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/3546
Tribunal:Member A. C. Williams
Place:Hobart
Date:16 October 2024
Decision:The Tribunal varies the decision under review made on 28 April 2023 such that, under section 33 of the National Disability Insurance Act 2013 (Cth), the statement of participant supports specifies:
(a)The reasonable and necessary supports that will be funded include 56 hours of speech therapy and occupational therapy support.
(b)The reasonable and necessary supports that will be funded include an additional three hours per day of support worker assistance.
(c)The date by which the CEO must reassess the plan is 12 months after the date of this decision (reassessment date).
(d)All other reasonable and necessary supports in the statement of participant supports are to be funded on a pro-rata basis until the reassessment date.
(e)The management arrangements for the plan are not changed and those arrangements apply until the reassessment date.
..................................[signed]......................................
Member A. C. Williams
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of supports to allow for additional funding for weekly speech and occupational therapy and an increase in support worker hours – decision under review varied.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)National Disability Insurance Scheme (Supports for Participants) Rules 2013
Secondary Materials
National Disability Insurance Scheme Operational Guideline
Statement of Reasons
BACKGROUND
The Applicant
The Applicant (RXFR) is a 9-year-old and boy lives with his mother (Ms XVCP), father (Mr XVCP) and an older brother who is aged 18 years. The family reside in a small regional town in Tasmania. RXFR has been diagnosed with Level 2 autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD), Oppositional Defiance Disorder (ODD), Chromosomal Deletion ((8P22), Global Developmental Delay, symptoms of anxiety and depression, and a mild to moderate Expressive and Receptive communication deficit.
The Applicant attends a local primary school. He has an assistance dog funded through Guide Dogs Australia and is supported at school by a full-time education assistant.
RXFR became a participant of the National Disability Insurance Scheme (NDIS) on 10 May 2021 based on the impairments associated with his ASD.
Since then, he has received funding through the Scheme under a series of one-year plans.
On 29 March 2023 a plan (Plan) was entered into between RXFR and the National Disability Insurance Agency (NDIA) under the s 33 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the Act’). The Plan succeeded the previous two earlier plans. The Plan covered the period between 29 March 2023 and 29 March 2024 (the original decision).
Ms XVCP sought an internal review of the Plan by the Respondent and on 28 April 2023 a delegate of the Chief Executive Officer (the CEO) of the National Disability Insurance Agency advised they had affirmed the original decision.
On 22 May 2023, Ms XVCP then applied to the Tribunal seeking a review of the original decision.
In her application she stated why she considered the original decision was wrong:
The NDIS made the incorrect decision not to approve the requested supports for [RXFR], as they are thoroughly explained and recommended in the multitude of specialist reports. The requested supports are the increased funding for allied health and the increased daily support hours.
It appears that the NDIS did not correctly interpret or use the specialist reports when considering the decision. For example, the NDIS have advised that the Behaviour Support Practitioner is responsible for working with [RXFR] on sensory regulation, however this is the domain of the Occupational Therapist. There is voluminous evidence regarding the change in [RXFR]’s circumstances that was provided to the NDIS at this time, and previously through 2022, which justifies the need for further support hours.
On 28 March 2024 a plan variation under s 47A of the Act was actioned which extended the plan for a 12-month period from 29 March 2024 to 29 March 2025.
RXFR’s NDIS plan provided total funding of $218,356.23 across the following categories of support.
Core Supports budget General Funding inclusive of:
Assistance with daily life: $138,487.98
Assistance with social & community participation.
$18,651.00Consumables
$3,365.04Total $160,503.12 Capacity Building Supports Budget
Improved Life Choices (CB Choice & Control)
$ 1,485.75 Improved Daily Living Skills
Behaviour Support $ 1,485.75 $19,398.96
$26,954.40
Support Coordination and Psychosocial Recovery Coaches
$10,014.00 Total
$57,853.11
The Applicant’s Plan and Stated Goals
According to the Respondent[1] RXFR’s plan comprises the following:
·100 hours of capacity building including 30 hours each of speech pathology and occupational therapy, as well as 40 hours for RXFR’s guide dog that can be used flexibly.
·35 hours each week for support workers to assist with activities of daily living, as well as 300 hours for social, community and civil participation.
[1] Respondent’s post-hearing submissions, 1.
Section 33 of the Act specifies matters that must be included in a participant’s plan. They include the participant’s statement of goals and aspirations prepared by the participant, and the statement of participant supports, prepared with the participant and approved by the CEO, that specifies both the general supports that will be provided to or in relation to the participant by the Agency, and the reasonable and necessary supports that will be funded under the NDIS pursuant to s 34 of the Act. The Support Rules were made for the purposes of ss 33 and 34 of the Act.
The NDIS plan approved on 29 March 2023, which is the subject of this review, specified the following “goals I want to work toward during this plan”.
·[RXFR] will successfully engage with his capacity building supports.
·Ms [XVCP] would like for him to be able to develop his ability to self-regulate his behaviour and engage with his family and friends.
·Ms [XVCP] would like for him to use appropriate communication skills when interacting with his friends.
·Ms [XVCP] would like for him to transition to his own bed in his own room and sleep through the night.
·Ms [XVCP] would like for him to understand personal boundaries and dangers when at home, school, and the community. She would also like for him to develop his social skills and awareness.
Before proceeding to outline the evidence before the Tribunal, it is important to outline RXFR’s family’s personal circumstances as this may have some bearing on my findings concerning certain individual criteria set out in s 34(1) of the Act.
In this regard both RXFR’s mother and father and his older brother have medical conditions or disabilities that impact their capacity to provide RXFR with the supports he needs.[2]
[2] Joint Tender Bundle (‘JTB’) 572.
Ms XVCP’s medical issues are as follows:
·Level 2 ASD
·ADHD
·Degenerative Lumbar Disc Disease reported to be affecting all lumbar discs from L1-L5 inclusive with nerve impingements at L4- L5 and L5-S1.
·Depression and Anxiety
·Osteoarthritis in the hip, back and knee
·Prolapse internal and external haemorrhoids
·Insomnia
·Chronic pain
·Pernisios anaemia
·Right patellofemoral mal-tracking
·Pernicious Anaemia
Ms XVCP is also a participant in the NDIS and has her funded supports. She frequently mobilises in a wheelchair.
Mr XVCP has anxiety and depression, Post-Traumatic Stress Disorder (PTSD) and an injury to his left hand which has required frequent surgery and restricts its level of function.
Ms XVCP advised Ms Petrovska that RXFR’s brother has the following medical conditions:
·Level 2 ASD
·ADHD
·Brown Syndrome (legally blind in left eye)
·Learning difficulties speech and language delay with executive functioning difficulties
·Nocturnal enuresis
·Anxiety and depression
·Chronic insomnia
An application has been lodged with the Respondent seeking access to the scheme for RXFR’s brother.
Prior to the hearing, the Respondent lodged with the Tribunal a joint tender bundle containing all relevant information provided by both parties in this case.[3] In reaching its conclusion, the Tribunal has considered the evidence taken during the hearing together with the evidence set out in the bundle (which included the documents provided by the Respondent under s 37(1) of the AAT Act) and other documentary exhibits tendered during the hearing.
[3] JTB (n 2).
ISSUES FOR DETERMINATION
In this matter, there are two issues to determine, namely whether the requested additional hours for occupational and speech therapy and the additional three hours per day of support worker assistance are reasonable and necessary supports under the Act.
LEGISLATIVE FRAMEWORK
The objects of the Act are set out in s 3. Section 3(1) of the Act provides:
The objects of this Act are to:
(a)in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b)provide for the National Disability Insurance Scheme in Australia; and
(c)support the independence and social and economic participation of people with disability; and
(d)provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e)enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f)facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g)promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(f)raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and
(g)in conjunction with other laws, give effect to certain obligations that Australia has as a party to.
Preparation of a participant’s plan
The CEO must facilitate the preparation of a plan for the participant under the Act (s 32), having regard to the principles relating to plans specified in s 31. A participant’s plan must include the participant’s statement of goals and aspirations and a statement of participant supports (s 32). The plan must specify the following matters (s 33(2)):
(a)the ‘general supports’ (as defined in subsection 13(2)) (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 NDIS; and
(c)the date by which, or the circumstances in which, the Respondent must review the plan under Division 4; and
(d)the management of the funding for supports under the plan (see also Division 3); and
(e)the management of other aspects of the plan.
Section 34(1) of the Act identifies what constitutes a ‘reasonable and necessary support’ for the purposes of the Act and provides as follows:
Reasonable and necessary supports
1For 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.
2The 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 Act allows for NDIS rules to be prescribed establishing a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided, or for declaring reasonable and necessary supports or general supports to be provided or funded, either generally or for prescribed participants. Rules have been prescribed and are in force, being the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Rules). The Tribunal also notes the Operational Guidelines – Planning (Chapter 10) published by the NDIA on 13 September 2016.
National Disability Insurance Scheme Rules (Supports for Participants) Rules 2013
In making the assessment of whether a support is reasonable and necessary according to s 34(1), the National Disability Insurance Scheme Rules (Supports for Participants) Rules 2013 (the Rules) must be taken into account.
Relevant to this review are Rules 3 and 5 of the Supports Rules which provide as follows:
Value for money
3.1 In 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);
......
(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
3.2 In 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.
3.3 In 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.
General criteria for supports
5.1 A 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.
5.2 The 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.
5.3 The following supports will not be provided or funded under the NDIS:
(c)a support the provision of which would be contrary to:
…
(ii) a law of the State or Territory in which the support would be provided
THE PARTIES POSITION
Respondent
The Respondent set out its position in its Statement of Facts, Issues and Contentions (SOFIC) dated 21 May 2024.
Regarding the requested additional hours for occupational and speech therapy, and after canvassing the existing evidence, the Respondent noted as follows:
The Respondent accordingly contends that the current Statement of Participant Supports, and the allowance of fortnightly occupational therapy and speech pathology, is sufficient to meet the Applicant’s goals having regard to current evidence. The material before the Tribunal does not establish that an increased level of support (e.g. weekly over fortnightly) as sought by the Applicant is evidence based. There are significant gaps in the evidence, including in relation to why therapy continues to be undertaken by telehealth. Rather than persisting with telehealth at a higher frequency, the Applicant may achieve more functional benefits, at a lower cost, by returning to in-person therapies.
In all circumstances the Tribunal could not be positively satisfied that increasing the supports in the plan meets the following criteria in the Act:
(a)The evidence does not establish that the increased 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 (s34(1)(c));
(b)The evidence does not establish that the increased support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (s34(1)(d); and
(c)On current evidence the increased support is precluded by Rule 5.1(c) on the basis that it duplicates supports delivered under funding provided by the Respondent in the current statement of participant supports.
Regarding the requested additional 3 hours funding for support works from Monday to Friday the Respondent summarised its position as follows:
The Respondent contends that the level of supports sought by the Applicant – being an increase of support worker hours from 5 hours a day to 8 hours a day – is excessive, goes beyond what is reasonable and necessary and does not satisfy the following criteria:
(a)The evidence does not establish that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice (s34(1)(d));
(b)The evidence does not establish that 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 (s34(1)(e));
(c)The evidence does not establish that the support is e and is not more appropriately funded or provided through other general systems of service delivery; and
(d)On current evidence the support is precluded by Rule 5.1(b) on the basis that it is not related to the Applicant’s disability
Applicant
While Ms XVCP did not provide a formal Statement of Facts, Issues and Contentions she did respond to the Respondent’s SOFIC in an email dated 27 May 2024:
As per [RFXR]'s NDIS Plan in T docs T11(page 220) capacity building funding previous did allow for weekly speech and occupational therapy sessions, as well as the funding for his autism assistance dog. In T docs T12 (page 233) the NDIS reduced this funding by cutting the requested supports for occupational and speech pathology in half only allowing the for fortnightly sessions with 4 hours for reports and no time for specialists to communicate and work together across a multi-disciplinary team. This decision directly went against the specialist recommendations. The gross medical and therapist recommendations all support with great evidence why this is reasonable, necessary, and recommended for [RXFR] being such a complex case with great impact on his everyday life functional ability and dependency against what a child of his age is meant to be able to do.
Local Occupational Therapy is not available at this time and [RFXR] is on multiple waitlists since commencing supports with Chloe Morgan. Multiple specialists have great success with RFXR over telehealth for years. What Chloe had mentioned was in regard to the direct consequence to the aftermath of that traumatic incident in the previous change of circumstances request which affected her both in session and telehealth. His behaviour practitioner in is NSW, his respiratory specialist is in Victoria, and have successfully done telehealth with [RFXR] over the past 5 years. So, it is completely misrepresented to claim telehealth does not work for [RXFR].
Throughout this case, we are all aware that the NDIS have not funded weekly supports for [RFXR] for Occupational Therapy. Even their own independent assessment recommendation states they recommend weekly supports for [RFXR]'s needs. A child cannot and should not be blamed or penalised for not using funding that does not exist or specialist availability. What Ms Levie wrote regarding 40 minute sessions with [RFXR] was charged as 1 hour sessions. This remaining 20 minutes per session was used for note writing, session planning and discussions with parents. She also recommended weekly sessions. Not fortnightly.
The behaviour practitioner also supported weekly Occupational Therapist sessions at 60 hours allowing for report writing and communication with the rest of the multidisciplinary team. None of the evidence that is clearly advocating for weekly sessions, including their own independent assessment supports the NDIS deciding to reduce this funding against medical advice. It also goes against all worldwide evidence that supports the importance of correct and needed early intervention for children with disability. Which ironically the NDIS claims to support publicly.
Applicant’s Evidence
The following documents were submitted to the Tribunal on behalf of the Applicant:
·Summary of Supports by Guide Dogs Australia dated 14 March 2022
·Summary of Supports by Guide Dogs Australia dated 13 February 2023
·Report of Dr Joseph Bowers Senior Clinical Psychotherapist dated 14 February 2023
·Behaviour Support Plan prepared by Dr Bowers dated 19 April 2023
·Report of Joshua Hoy Occupational Therapist dated 15 August 2023
·Summary of Goal achievements from Guide Dogs Tasmania dated 21 August 2023
·Letter from Dr Bowers dated 28 August 2023
·Ms RXFR’s response dated 14 September 2023
·Email from Dr Bowers dated 13 February 2023
·Zanit Burden Interview 27 March 2024
·Behaviour Support Plan dated 1 March 2024
·DSW guidelines for working with RXFR dated 26 March 2024
·NDIA AAD report and quote from Guide Dogs Tasmania dated 27 February 2024
·PEDI-CAT report dated 5 April 2024
·Plan Review Report of Dr Dwayne Andrew Kennedy dated 26 March 2024
·Sensory profile report dated 28 March 2024
·Speech Pathology Report of Nicole Brennan dated 27 March 2024
·Supplementary OTR report Matthew Wong dated 9 April 2024
·Syamilah Salim Occupational Therapist Functional Capacity Assessment dated 12 April 2024
·Support Coordinator Report
Respondent’s Evidence
Ms Karol Petrovska was engaged by the Respondent to provide an Independent Medical Examination (IME). Ms Petrovska provided a report dated 20 November 2023.
She was not able to conduct a functional assessment in RXFR’s home environment. She therefore based her recommendations on:
·analysis of the medical evidence concerning RXFR’s medical conditions,
·consideration of the home environment and available supports; and
·maximising RFXR’s safety, independence, and well-being in day-to-day activities
In terms of her recommendations, Ms Petrovska restricted these to the frequency of occupational therapy sessions noting that recommendations as to other therapies (i.e. speech therapy, behaviour therapy) should more appropriately be made by specialists in those fields.
In terms of occupational therapy Ms Petrovska noted:
I believe RFXR would benefit from weekly occupational therapy. Regular intervention on a weekly basis would provide a more concentrated and effective treatment program. Weekly sessions are not unusual and are supported by the literature. Several weekly sessions are also a common occurrence when there is a child with several diagnoses and severe symptoms.[4]
[4] JTB (n 2) 576.
Ms Petrovska stated that she agreed with the recommendations provided by Ms Susan McLevie, Occupational Therapist dated 27 January 2023.[5] Ms McLevie in her report recommended that RXFR participate in weekly Occupational Therapy sessions as well as four hours for reporting and liaison with stakeholders and a further four hours for support worker training.[6]
[5] Ibid 577.
[6] Ibid 45.
She also stated that while there was significant potential for beneficial outcomes of weekly sessions, the anticipated functional outcomes after 12 months were difficult to predict and would require a further reassessment at that time.[7]
[7] Ibid 577.
Ms Petrovska further provided recommendations concerning before and after school care and weekend supports as follows:
Constant morning and afternoon support before and after school during school term and full day support on weekends, school and public holidays from a qualified carer to support RXFR to engage in his activities of daily living and to implement home programs as prescribed by RXFR’s treating therapists.[8]
[8] Ibid 570.
Ms Petrovska, in her report, responded to several targeted questions from the Respondent. These were as follows:
(a)In relation to her recommended frequency of Occupational Therapy sessions, Ms Petrovska stated:
I am only able to comment on aspects that sit within my area of expertise as an Occupational Therapist. I believe RXFR would benefit from weekly Occupational Therapy. Regular intervention on a weekly basis would provide a more concentrated and effective treatment program. Weekly sessions are not unusual and are supported in the literature. Several weekly sessions are also a common occurrence when there is a child with several diagnoses and severe symptoms.[9]
[9] Ibid 576.
(b)In relation to the anticipated benefits and functional outcomes, Ms Petroska stated:
The expected benefits of the recommendations in 4(d) support consistent therapeutic input for RXFR to actively engage in therapeutic and learning processes focused on achieving the goals in his NDIS Participation Plan. Weekly sessions offer a greater opportunity to maintain a level of continuity. It will also assist RXFR’s parents and support worker to maintain consistent application of a home and school program as recommended by the Occupational Therapist.
While the evidence suggests there is great potential for the effectiveness of Occupational Therapy for children with disabilities10, anticipated and/or expected functional outcomes after 12 months are difficult to predict. Re-evaluation of RXFR’s function should occur after a 12-month period.
While the evidence suggests there is great potential for the effectiveness of Occupational Therapy for children with disabilities, anticipated and/or expected functional outcomes after 12 months are difficult to predict. Re-evaluation of RXFR’s function should occur after a 12-month period.[10]
[10] Ibid 577.
(c)Regarding whether RXFR has had previous sufficient opportunity to engage in intensive therapy Ms Petrovska stated:
I believe RXFR has not had sufficient opportunity to engage in intensive therapy and requires weekly sessions to increase the potential for further improvements.[11]
[11] Ibid 577.
(d)In responding to whether there was a risk of potential duplication of support she wrote:
I do not believe there is potential duplication of supports between qualified therapists that apply evidence-based techniques within their area of expertise. I can only comment on the potential areas of improvement that RXFR may achieve with Occupational Therapy treatment as that is within my area of expertise. Occupational Therapy can assist with achieving:
·Increased independence in personal care
·Development of fine and gross motor control
·Sensory processing skills to decrease the impact of high sensitivities and seeking behaviours
·Cognitive functions such as problem solving, impulse control, memory and attention
·As suggested in 4(e), anticipated and/or expected functional outcomes after are difficult to predict. Re-evaluation should occur after a sustained period of consistent exposure to therapy.[12]
[12] Ibid 578.
(e)Concerning RXFR’s anticipated level of support, she wrote:
RXFR requires constant supervision, assistance and prompting provided by a support worker before and after school and full day support during weekends, school and public holidays to perform all tasks that would otherwise be expected of a typical 9-year-old. This is due to RXFR’s difficulty with:
·Emotional regulation
·Flexibility of thinking
·Executive functioning
·Socialisation
·Fine motor coordination and fine motor planning
Sensory processing[13]
[13] Ibid 579.
(f)Concerning the tasks RXFR required more support with, and his parent’s capacity to provide such support, Ms Petrovska wrote:
The reports provided indicate RXFR requires support for the following:
• Emotional regulation
• Flexibility of thinking
• Executive functioning
• Socialisation
• Fine motor tasks
• Sensory processing
These challenges preclude RXFR engaging in age-appropriate tasks as identified in Question 3.
I do not believe RXFR’s parents are able to provide the constant support and intervention required given RXFR’s profound challenges and the significant disabilities his parents, in particular his mother, experience and their need to also support RXFR’s older brother.
Responding to those targeted questions, relating to the requested increased support worker hours, Ms Petrovska indicated that she did not consider RXFR would become dependent on them. She stated that their constant presence would aid in applying the home programs and strategies prescribed by his therapist.[14]
EVIDENCE IN SUPPORT OF THE APPLICANT’S POSTION
[14] Ibid 577.
Ms XVCP’s Evidence
Ms XVCP gave her evidence by video link.
She said that her son currently attends school 4 days per week. He attends with his assistance dog and has a dedicated teaching assistant.
During the course of giving her evidence, Ms XVCP was asked by the Respondent’s Counsel about her older son who is now aged 18. She told the Tribunal that he is in the process of applying for the NDIS based upon his disabilities. She told the Tribunal that her older son has no role in providing care for RXFR.
The respondent’s Counsel asked if Ms RFXR would be open to providing her older son’s medical records which might substantiate his disabilities and care needs. Ms RFXR queried the relevance of that information to RXFR’s care needs and also indicated that there was already a great deal of evidence on RFXR’s matter which addressed the other family members medical and other issues and the affect they had in their capacity to provide care to RFXR.
The Respondent’s Counsel ultimately did not press the point.
Ms XVCP told the Tribunal that Mr XVCP has a serious injury to his left hand which affects his ability to grasp and hold objects and perform a number of household tasks; he required a number of operations on his hand. He also has a diagnosis of Post-Traumatic Stress Disorder.
His conditions have severely limited his ability to provide physical assistance to both her and RFXR primarily due to his restricted capacities in his left hand.
Ms XVCP has funding for a support worker for 40 hours each week which is shared between her and RFXR.
Her older son has multiple medical diagnoses and resulting disabilities. She has lodged an application to the NDIA seeking access for him into the scheme. He needs to have significant assistance from her and her husband with a range of daily tasks.
The Respondent’s Counsel in his questioning of Ms XVCP asked as to whether there was an Occupational Therapist report concerning Ms XVCP’s older son. And that such a report would assist the Tribunal in assessing how much assistance Mr and Ms XVCP’s provide their older son.
In terms of her own physical capacities Ms XVCP suffers from chronic pain and can only do a limited number of household tasks. She requires daily assistance from her support workers in household tasks and personal care including showering, toileting and getting dressed.
She had surgery on her knee, in May this year, and is still engaged in a rehabilitation program which will need to be extended over eighteen months due to her limitations arising out of the interaction with her bilateral nerve impingement in her spine.
Ms Karolina Petrovska’s evidence
Ms Petrovska also gave her evidence by video link in the second day of the hearing.
After addressing several administrative matters relating to some minor amendments to her report, she then provided her oral evidence.
Ms Petrovska was asked what she considered was the most appropriate manner to conduct occupational therapy assessments or sessions.
She indicated that ideally these should be face face-to-face, however in the absence of clinicians being available in the area, telehealth sessions would be the next best option.
She said that there would be some aspects of conducting such sessions remotely that may prove challenging. This would perhaps include providing support in a standby fashion, in a face-to-face environment, and work with RXFR to use the strategies that occupational therapists use to support, perhaps, a sequencing challenge that RXFR might have, or behavioural regulation that RXFR might have.
Ms Petrovska was asked if conducting occupational therapy sessions solely by telehealth may have limited therapeutic benefits.
In response she said that while that was possible, there would be several strategies that could be employed including providing information and training to behavioural support workers and others, including carers, who could then implement those strategies.
She agreed with the proposition that while RXFR was waiting to be allocated an Occupational Therapist who could work with him face to face, having an experienced disability support worker in combination with supportive parents working with Occupational Therapists (‘OTs’) and speech pathologists would be the next-best practice.
In this regard she said that she had not seen evidence that indicated that this approach was not being followed by RFXR’s current therapists, family, and support workers.
Ms Petrovska was then asked about what she referred to in her report as to RXFR requiring constant support and what that may entail.
In response, she indicated that improvements could not be achieved solely from the OT sessions but required ongoing home programs and implementation of strategies recommended by an OT.
These could be provided by both family and external workers; however it was important that the strategies are consistently provided and not simply left to the family creating a risk of carer fatigue.
She was asked about her view of the adequacy of the current five hours a day of support workers and whether any gaps between these could be best provided by his family.
In response she said that she considered that there were significant gaps in that support and that it was important to minimise the impact of that care upon his family.
Ms Petrovska was asked about her recommendation of weekly OT sessions between 30 and 60 minutes and how that might tally with the observation in Ms McLevy’s report that RXFR’s attention span was limited to 40 minutes.
In response, Ms Petrovska stated that she had put in a range of times for the therapy sessions to take place, to take account of RXFR’s potential improvement in his ability to concentrate over time.
Ms Petrovska was asked if she had considered what the appropriate frequency of speech therapy sessions should be. In response she indicated that would be out of her area of expertise, however based upon her experience, it would not be unusual for the speech sessions to also be held on a weekly basis. She also noted however that these two therapists would work closely and collaborate, and her expectation would be that they would stay in communication to ensure that their respective strategies were aligning.
Respondent’s Submissions
On 16 August 2024, the Respondent provided written submissions addressing the evidence before the Tribunal.
In relation to the requested weekly Occupational Therapy and Speech Therapy sessions the Respondent submitted the following:
·There are no clinical progress reports (as opposed to assessment reports), nor responses to the targeted questions, from either a speech pathologist or occupational therapist. All reports have been assessment reports. In this regard, it is noted the applicant has had at least four occupational therapists in the last two years and two speech pathologists.
The applicant’s Individual Learning Plan (‘ILP’), filed after the hearing, refers to an OT report from Cocoon Paediatrics. Ms Morgan (whose report is at JTB12 – 13) was the applicant’s OT at Cocoon Paediatrics in 2022. Given the date of the recent ILP, it appears that there may be a further report available that has not been produced to the Tribunal in this proceeding.
·Interventions continue to be by telehealth exclusively, despite the limitations identified in the materials and the importance of in-person sessions identified by Ms Petrovska. It is unclear to what extent this arrangement is based on provider availability on the one hand, and the applicant’s preferences (expressed as choice and control by Ms XVCP) in relation to which providers are considered “suitable”. In relation to speech pathology, there is no report recommending weekly speech pathology, including in the sense of weekly one-hour sessions. As set out in the Respondent’s SOFIC, Ms Amberg recommended ‘regular’ speech pathology and Ms Brennan recommends a total of 50 hours per week, but this is inclusive of a range of things beyond direct therapy. Similarly, Ms Salim recommended 40 hours per week of OT which again cannot be a recommendation for 1-hour weekly sessions.
·Accepting that the dog Vinnie is not a total substitution for occupational therapy, it is contended that there remains an element of support duplication. This is because:
(e)Ms Salim identifies the goal of sleeping in his own bed and emotional regulation;
(f)Sleeping in his own bed was essentially achieved with help of the assistance dog Vinnie; and
(g)Vinnie is also reported to be assisting with behavioural regulation and support with daily activities.
·Additionally, the latest report from Guide Dogs Tasmania recommends 30 hours per year for capacity building. This would leave at least 70 hours in the current 100-hour budget for occupational therapy and speech pathology (noting that this budget can be used flexibly and the evidence of Ms XVCP that Guide Dogs Tasmania attends infrequently).
·Given Ms Petrovska’s “range” of 30 to 60-minute sessions per week (reflective of the applicant’s limitations in capacity to consistently concentrate), and the fact that the applicant has been receiving benefit through a combination of fortnightly OT and speech pathology and the provision of the assistance dog, it is contended that the remaining 70 hours would likely be sufficient to enable weekly sessions of direct therapy to occur, even if not one-hour sessions weekly.
·Finally, consistent with early intervention principles (and Ms Petrovska’s evidence), it is to be expected that as time goes on, the applicant’s need for OT and speech pathology will reduce.
·In all of these circumstances, those identified at [37] – [44] of the respondent’s SFIC, and the evidentiary issues outlined above, it is contended that the Tribunal cannot be positively satisfied that additional funding for OT and speech pathology is reasonable and necessary.
In relation to the request for an additional three hours per day in support worker assistance the Respondent made several submissions.
Firstly, Ms Salim had recommended (in her report of 12 April 2024) that support worker hours be 36 hours per week which essentially was the same amount currently funded.[15]
[15] JTB (n 2) 521.
Secondly, there appeared to be a significant overlap between the supports provided by Ms RXFR’s support workers, and that provided by RXFR’s father and no explanation as to how these supports could not be reorganised to provided support for RXFR in the morning.
In addition, these matters could have been addressed by an in-person functional assessment or by the provision of responses from the occupational therapist.
RXFR’s school could potentially provide an after-school care program for RXFR based upon material the respondent had received.
CONSIDERATION
Are the requested weekly occupational therapy and speech therapy sessions, reasonable and necessary?
General Observations
Before addressing the specific criteria of section 34(1) of the Act, i.e., value for money, effective and beneficial, and duplication of existing supports, it is necessary to place these additional requested supports in their proper context.
RXFR has several diagnoses, all of which interact and have a significant affect upon his emotional, cognitive, sensory, behavioural capacities.
RFXR’s complex and severe disabilities should be best addressed through consistently provided and targeted therapies in a multi-disciplinary and collaborative framework. These would include at least, occupational therapy, speech therapy and specialist behaviour support therapy, planning and training of RXFR’s informal supports, educators, and support workers.
The Tribunal notes that according to Ms XVCP, her son’s previous plan to that the subject of this case had funding for weekly speech and occupational therapy. This has also been referred to in some of the specialist reports. The Tribunal accepts that this was the position prior to the current plan.
There has been a consistent pattern of specialist medical evidence, over the past two years, recommending an increase in the frequency of these therapies or at least a return to that which had previously been funded.
These recommendations need to be placed in the context of a recent escalation of RXFR’s behaviours, seeming to have had their origin in allegations of sexual and other forms of abuse made against one or more former support workers.[16]
[16] JTB (n 2) 421, Dr Joseph Bowers response to targeted questions.
This has had a marked effect on RXFR and while some of his behaviours of concern have reduced, there is still more work to address his various deficits.[17]
[17] Ibid.
The other context of importance here, is the limitations of his family unit to provide the informal supports that one would normally expect such a unit to provide. There is significant documentary evidence (including an occupational therapist’s functional assessment) as well as Ms XVCP’s own testimony as to her impairments and how they affect her abilities as an informal care giver.
Once again, the alleged paucity of evidence addressing such limitations was the subject of adverse commentary from the Respondent in its final submission. It was submitted that there was no evidence from RXFR’s father or objective evidence as to his impairments or his functional capacity.
This is despite Ms XVCP providing in her oral evidence as to her partner’s injuries, treatment history, resulting impairments and their resulting limitations as they manifest for him on a daily basis.
The Tribunal, in its role as an independent decision maker, may obtain this evidence in the manner it considers appropriate. It also must be mindful of not placing too great an evidentiary burden on any party, let alone an unrepresented applicant who has already provided detailed evidence concerning the matters before it. The same observation can be made about material relating to RXFR’s older brother who is in the process of seeking access to the scheme due to his own disabilities and alleged impairments.
I consider that there was sufficient evidence provided which gave a clear picture of the limitations of Mr XVCP and RXFR’s older brother in acting as informal care givers.
The Respondent, throughout the hearing and in its post-hearing submissions, has consistently sought to make an issue of the limitations of therapy sessions conducted via tele-heath as well as the probative value of assessments conducted in this manner.
Apart from ignoring the impact on the provision of face-to-face service delivery, due to the only recently concluded Covid Pandemic and related shutdowns as well as the chronic shortage of suitably qualified and experience allied health professionals in regional and remote areas such as where RXFR and his family live, the Respondent’s submissions are, in the Tribunal’s view, misguided and not borne out by the evidence.
The evidence before me does not lead me to believe that the current preponderance of therapy sessions, being conducted via tele-health, is due to a preference on the part of Ms XVCP.
The question of the relative merits and benefits of in-person assessments and therapy sessions was put to Ms Petrovska during the hearing.
In her evidence Ms Petrovska stated that while face to face sessions would be preferable, sessions conducted remotely could still be useful and effective.
Similarly, the Respondent’s submission that evidence obtained via this method should be afforded little weight, is to my mind incorrect, particularly when Ms Petrovska’s opinion in this regard is accepted, which I do.
The Respondent, in its final submission, also seemed to seek to draw a distinction between clinical progress reports and assessment reports and drew the Tribunal’s attention to the absence of responses to the targeted questions provided to the occupational and speech therapists.
There is a significant amount of longitudinal evidence provided over a two to three-year timeframe from the multiple therapists and other providers assisting with RXFR’s care. In particular, there are the various reports provided by Dr Joseph Bowers the Senior Clinical Specialist Counsellor/Psychotherapist, who is overseeing RXFR’s specialist behaviour management plan. These reports have the benefit of being informed by input from RXFR’s parents, therapists, school, and support workers and provide a great level of detail of his overall presentation, the behaviours of concern and the steps being taken to address them.
Before addressing the reasonable and necessary criteria, I will need to address what would be an appropriate frequency of support for both occupational therapy and speech therapy.
With regards to occupational therapy, there appears to be consistent recommendations (including that provided by Ms Petrovska) that therapy sessions should be held on a weekly basis.
I consider fifty hours per annum to be appropriate in terms of those therapy sessions.
It is also appropriate to add to these sufficient hours for report writing and collaboration with other therapists, to ensure consistency and coordination in therapy methods and outcomes.
In this regard, I consider two hours for report writing and four hours for communication and collaboration with therapists and other stakeholders appropriate.
With regards to the requested increased speech therapy hours, there are a range of recommendations. In this regard Ms Amberg in her report recommended ‘regular’ speech therapy,[18] and Ms Nicole Brennan recommended 50 hours.[19]
[18] JTB (n 2) 37.
[19] Ibid 512.
Ms Petrovska indicated in her report that, in terms of the recommended frequency of speech therapy, she would defer to the recommendations made by RXFR’s speech therapists.[20]
[20] Ibid 576.
However, Ms Petrovska indicated in her report that her view was that RFXR cannot currently meet the speech and language developmental milestones appropriate for his age, and further that he has not had the opportunity to engage in intensive sessions to increase the potential for further improvements.[21]
[21] Ibid 576-577.
While the latter observation would appear to be restricted to occupational therapy, it is also applicable to other therapies including speech.
Clearly, based on the evidence, the current fortnightly sessions are not aiding in achieving these improvements.
Taking account of the need for a multidisciplinary and collaborative approach between RXFR’s various therapists as well as the goal of consistency, highlighted by Ms Petrovska, any finding on the frequency of speech therapy sessions should also allow for both report writing and communication between those therapists.
I consider that Ms Brennan’s recommendation of 50 hours is the most relevant and also the most current. To that end, I would add the same four hours for communication and collaboration with other practitioners, and two hours for report writing, as I determined was appropriate for the occupational therapy.
Are the requested additional support worker hours reasonable and necessary?
The best starting point in assessing the need for this requested support, is to assess RXFR’s family’s capacity to provide the usual informal supports for a child of his age and actual capacities alongside the existing support worker hours currently funded.
The evidence before the Tribunal is that overall, the family has significantly high care needs. There are currently two family members (RXFR and Ms XVCP) receiving supports under the NDIS. The Tribunal was told that RXFR’s older brother also has a number of physical and psycho-social disabilities, and an application has either already been lodged or is about to be lodged with the Respondent, seeking access to the scheme.
Mr RFXR also has limitations on his capacity to actively provide support to Ms RFXR and his two sons arising out of the serious injury to his left hand which severely limits his ability to pick up or grasp objects. He also has a diagnosis of Post-Traumatic Stress Disorder.
The overall family dynamic was addressed in Dr Bowers’ report of 4 March 2022 where he noted:
Related circumstances changing are that RXFR’s mother deals with a chronic health condition and disability status that has increased her limitations and capacities over the past year. RXFR’s father also battled mental health concerns and is at breaking point due to chronic stress and anxiety. The family placement for RXFR is under threat. [22]
[22] Ibid 14.
Ms Morgan made similar observations in her report of March 2022:
In the context of the substantial increase in social, emotional, and behavioural circumstances significantly limiting RXFR’s participation in daily occupations, a prompt increase in home-based support is recommended. Given that RXFR’s parents also manage their own chronic health conditions, co-morbidities and mental health challenged, it is not reasonable or safe to expect RXFR’s parents to provide the level of care that he currently requires. Without immediate and increased support, the health and wellbeing of the entire family unit is placed at risk, and the likelihood of carer burnout significantly increases.
I have already addressed the reasons why I have accepted the evidence before me as to Mr RFXR’s capacities and limitations in the absence of a formal capacity assessment.[23]
[23] See [111]–[114].
Overall, the clear and consistent impression provided by the clinical and other evidence, is that of a family unit with significantly reduced capacity to provide RXFR the support he requires, with insufficient funding for home-based supports to assist in this regard and leading to significant pressures with a strong probability of care burnout and risk of a potential relinquishment of his care.
I consider the following exchange, between the counsel for the Respondent and Ms Petrovska, of some benefit in framing RXFR’s care needs and the capacity of the family and the current support worker hours to address them:
Counsel: Thank you. And in your report, you also refer to RXFR requiring constant support needs. Could you just explain what you mean by constant support needs, and perhaps, although it’s ultimately a matter for you, it would be helpful to talk in terms of having someone present nearby, someone offering direct supervision, someone providing a higher level of support?
Ms Petrovska: Sure. So, it goes back to what I mentioned earlier, and that is unfortunately we’re not going to achieve improvements from 30 to 60 minutes of OT intervention only. It’s about implementation of home programs and consistent use of the strategies that the OT suggest would be best for RXFR. And I think what I’m very mindful of is that it’s helpful when families are able to implement those home strategies. But such were RXFR’s needs, from what I could read in the material that I had available to me, it’s a significant amount, and I would suggest that that goes beyond what was able to be provided by RXFR’s family, hence the recommendation for that constant care and support by a carer.
Counsel: Yes. What is the role for the informal supports like RXFR’ family in this particular situation?
Ms Petrovska: It’s about consistency. It is certainly about care, but the extent of the care is so significant that it shouldn’t be to the detriment of the family. The people providing the care in RXFR’s family – it shouldn’t be a detriment to their health and the health of other people in the household. And that’s the tipping point, from my perspective; is the intensive nature of the care that RXFR requires, and the intensive application of home programs and strategies warrant that additional layer of care beyond what the family can provide.
Counsel: So, is there still a role for the informal supports to be providing that in RXFR’ case?
Ms Petrovska: Absolutely, and it’s more around consistency and ensuring that everyone is on the same page about what works and what doesn’t work. What we don’t want to see is application of a home program by a carer, for example, that’s completely at odds with what the family is doing. So, it’s about consistency across the board and who RXFR interacts with.
Counsel: So, for instance, on a school day, the current situation is that there’s five hours of support workers that attend; RXFR is at school for six hours?
Ms Petrovska: Mmm
Counsel: Now, that would leave a gap of some hours on a day-to-day basis?
Ms Petrovska: M’mm.
Counsel: In your view, is that an appropriate point for the family to be participating in providing the supports?
Ms Petrovska: Again, it comes back to if it’s feasible and workable and not at the detriment of their health and the family’s health, then yes. But given RXFR’s needs, I suspect that that might fluctuate depending on, you know, his needs. So there may be gaps, and my recollection of the documents that I read in writing my report is that the size of the gaps were quite significant, and it’s about sort of minimising impact on the health and welfare of the family, family members in the home.[24]
[24] Transcript of proceedings, 94–95.
What is clear from this exchange, is the significant gaps in the capacity of the family’s informal and current funded supports in addressing these intensive support needs.
It is also clear from the above exchange that the requested additional support worker hours directly relate to RXFR’s disability.
It is also the case where, as Ms Petrovska observed, it is accepted that RXFR requires intensive level of care as well as the intensive implementation of the home programs recommended by his therapists. Ms Petrovska clearly indicated that such intensive implementation of the home programs was beyond what the family can provide.
Of equal importance to my mind, is maintaining the family unit and, as Ms Petrovska observed, minimising the impact on the family’s health and welfare.
Section 34(1)(c) value for money
Relevant to this assessment, Rule 3 of the National Disability Insurance Scheme (Supports for Participants) 2013 (‘Support Rules’) which provides as follows:
In 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:
(h)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(i)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(j)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);
(k)for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(l)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;
(m)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).
In relation to the question of life-stage improvement and long-term benefits these have been addressed in detail in the reports and assessments provided by the various clinicians, therapists, and the support coordinator amongst others.
Dr Bowers, in his responses to the Respondent’s targeted questions, addressed the need for consistent, multidisciplinary interventions over the course of RXFR’s childhood and potentially into young adulthood while also pointing to the significant improvement in the life outcomes such consistent support leads to.[25]
[25] JTB (n 2) 418.
The important factor in all of this is ensuring a degree of consistency in the level and frequency of therapeutic and home-based supports. The nature and severity of RXFR’s impairments will take some time to be addressed and should not be the subject of annual reviews by the Respondent, particularly when there is clear evidence supporting their continuation.
There is no evidence before me that there exist comparable supports that would achieve comparable results at a substantially lower cost. It is clear from the evidence that only a multidisciplinary approach involving the therapists, RXFR’s family, his school and other providers of support will address this adequately.
I am therefore satisfied that the proposed additional therapy sessions and additional support worker hours represent value for money.
Section 34(1)(c) effective and beneficial
Relevant to this assessment is Rule 3.2 of the National Disability Insurance Scheme (Supports for Participants) 2013 (Cth)which provides as follows:
In 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:
(n)published and refereed literature and any consensus of expert opinion;
(o)the lived experience of the participant or their carers; or
(p)anything the Agency has learnt through delivery of the NDIS.
3.3 In 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.
Similar considerations apply to this requirement. The clinical evidence indicates that RXFR will respond well to being provided with additional therapy and support worked hours. The two increased supports are interrelated, in that the additional home-based support will provide the support workers with additional time to implement the training that the additional therapy hours will allow for.
Ms Petrovka referred to this in her report:
The expected benefits of the recommendations in 4 (d) support consistent therapeutic input for RXFR to actively engage in therapeutic and learning processes focused on achieving the goals in his NDIS Participation Plan. Weekly sessions offer a greater opportunity to maintain a level of continuity. It will also assist RXFR’s parents and support worker to maintain consistent application of a home and school program as recommended by the Occupational Therapist.
While the evidence suggests there is great potential for the effectiveness of Occupational Therapy for children with disabilities10, anticipated and/or expected functional outcomes after 12 months are difficult to predict. Re-evaluation of RXFR’s function should occur after a 12-month period.[26]
[26] JTB (n 2) 577.
In addressing the potential benefits and potential for duplication of supports Ms Petrovska further noted:
I can only comment on the potential areas of improvement that RXFR may achieve with Occupational Therapy treatment as that is within my area of expertise. Occupational Therapy can assist with achieving:
·Increased independence in personal care
·Development of fine and gross motor control
·Sensory processing skills to decrease the impact of high sensitivities and seeking behaviours, cognitive functions such as problem solving, impulse control, memory and attention
As suggested in 4(e), anticipated and/or expected functional outcomes after are difficult to predict.
Re-evaluation should occur after a sustained period of consistent exposure to therapy.[27]
[27] JTB (n 2) 578.
Ms Brennan in her report identified a range of benefits to RXFR in participating in regular speech therapy sessions including:
·Increasing awareness of his individual needs and developing his ability to articulate this to those closest to him.
·Developing emotional regulation and social cognition skills to support him in developing cognitive flexibility, capacity to cope with changes and transitions.
·Developing communication skills to support him in building and maintaining peer relationships.[28]
[28] JTB (n 2) 510.
I am satisfied that the weight of evidence establishes the requested therapy hours and related training of the family and support workers will be effective and beneficial.
Rule 5(1) Duplication of existing supports
Rule 5.1 of the Support Rules states that:
General criteria for supports
3A 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.
When the specific question of the potential for duplication of supports in the provision of occupational and speech therapy was put to Ms Petrovska, she stated the following:
I do not believe there is potential duplication of supports between qualified therapists that apply evidence-based techniques within their area of expertise. I can only comment on the potential areas of improvement that RXFR may achieve with Occupational Therapy treatment as that is within my area of expertise. Occupational Therapy can assist with achieving:
•Increased independence in personal care
•Development of fine and gross motor control
•Sensory processing skills to decrease the impact of high sensitivities and seeking behaviours
• Cognitive functions such as problem solving, impulse control, memory and attention
The same observation could be made concerning the additional support worker hours. As noted earlier, it is proposed that the occupational and speech therapists will liaise with each other and provide information and training to RXFR’s family, his teachers and other educational support providers and to the home-based support workers.
It is clear from the various reports that RXFR continues to have deficits in his spoken language and comprehension skills. Both Ms Brennan and Ms Petroska recommend that their therapies be provided in a collaborative manner with exchange of information between the therapists involved in his care and the provision of training to others.
As I have already observed at [130], I consider there is clear evidence that the requested support directly relates to RXFR’s disability.
I am therefore satisfied that the requested weekly sessions of occupational and speech therapy will not duplicate existing NDIS supports.
CONCLUSION
For the reasons set out above, the Tribunal is satisfied that the correct and preferable decision in this case is to set aside the decision under review and to direct that the following supports meet the requirements of a reasonable and necessary support as defined in the NDIS Act:
1)50 hours per annum of occupational therapy sessions as well as a further 4 hours for communication and collaboration with other allied health practitioners and 2 hours for report writing.
2)50 hours per annum of speech therapy sessions as well as a further 4 hours for communication and collaboration with other allied health practitioners and 2 hours for report writing.
3)An additional 3 hours per day of support worker hours for assistance in activities of daily living.
DECISION
Pursuant to section 105(b) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal varies the decision under review made on 13 June 2023 such that, under section 33 of the National Disability Insurance Act 2013 (Cth), the statement of participant supports specifies:
(a)The reasonable and necessary supports that will be funded include 56 hours per annum of speech and occupational therapy.
(b)The reasonable and necessary supports that will be funded will include an additional three support worker hours per day for assistance in daily living activities.
(c)The date by which the CEO must reassess the plan is 12 months after the date of this decision (reassessment date).
(d)All other reasonable and necessary supports in the statement of participant supports are to be funded on a pro-rata basis until the reassessment date; and
(e)The management arrangements for the plan are not changed and those arrangements apply until the reassessment date.
142. I certify that the preceding 141 (one hundred and forty -one) paragraphs are a true copy of the reasons for the decision herein of Member A. C. Williams
........................................................................
Associate
Dated: 16 October 2024
Date(s) of hearing: 24 & 25 July 2024 Date final submissions received: 16 August 2024 Applicant: Self-represented Counsel for the Respondent: Mr Joshua Lessing Solicitors for the Respondent: Moray and Agnew Lawyers
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