Scaramella and National Disability Insurance Agency (NDIS) - [2025] ARTA 870

Scaramella and National Disability Insurance Agency (NDIS) [2025] ARTA 870 (1 July 2025)
Applicant:Romina Scaramella by her plan nominee, Rosanne Scaramella
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/5940

Tribunal:General Member F Robertson
Place:Perth
Date:1 July 2025[1]
[1] Page 88 was altered on 2 July 2025 under s 114(1) of the Administrative Review Tribunal Act 2024 (Cth) to correct an obvious error.
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with an order that the following additional reasonable and necessary supports are to be included and funded under the National Disability Insurance Scheme:
(a)the provision of 1:1 care by Rosanne Scaramella to be funded in an amount of $2,360.94 per week for the duration of the plan;
(b)1:1 high-intensity support worker assistance for 72 hours per week
(c)4 hours of nursing care for specialist input and support
(d)$5,500.20 per year for continence aids
(e)$1,500.00 for communicative and cognitive equipment
(f)48 hours for a registered nurse to provide support and guidance to support workers under a delegated model of care;
(g)Funding for behavioural support, being 45 hours of specialist behavioural intervention, and 20 hours of training in behaviour management strategies; and
(h)50 hours of Specialist Support Coordination to replace the current 24 hours for Support Coordination, Level 2.

………[SGD]…………………………………………….
General Member F Robertson
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Reasonable and Necessary Supports – Where participant has profound and complex disabilities including Autism, Type 1 Diabetes, and Epilepsy - Getting the NDIS Back on Track Amendments – Transitional Rules - Family Members as Paid Supports
FAMILY MEMBERS AS PAID SUPPORTS – Income Replacement – Whether payment to a family member for providing support constitutes "income replacement" under Rule 5.3(b) of the NDIS Support Rules and Schedule 2 of the Transitional Supports Rules – Proper construction of "income replacement" – Distinction between funding a 'support' for a participant and providing a general income subsidy
PLAN NOMINEES – Duties of a plan nominee under s 80 of the NDIS Act and the Nominees Rules – Conflict of interest – Where plan nominee is also the proposed paid support provider – Interpretation of Rule 5.12 and 5.13 of the Nominees Rules – Whether conflict of interest is an absolute bar to funding arrangement – Finding that conflict must be 'managed' rather than avoided entirely – Interaction between nominee duties and assessment of reasonable and necessary supports.
DELEGATED MODEL OF CARE – appropriateness of support workers administering Schedule 4 medication (Insulin) – Interaction between NDIS framework and state legislation –Medicines and Poisons Act 2014 (WA) – unnecessary to come to a definitive conclusion
SOCIAL SECURITY ACT - Whether supports are more appropriately funded through other systems – Consideration of Carer Payment under the Social Security Act 1991 – Distinction between funding for disability-specific supports required by a participant and income support for a carer
SUPPORTS FUNDED – Specific supports found to be reasonable and necessary – Funding for 1:1 care by plan nominee – Funding for additional 1:1 high-intensity support workers – Specialist Support Coordination – Behavioural support and training – Nursing care for specialist input and supervision under a delegated model of care – Continence aids – Assistive technology
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Health Practitioner Regulation National Law (Western Australia) Act 2010 (WA)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth)
National Disability Insurance Scheme (Nominees) Rules 2013 (Cth)
Social Security Act 1991 (Cth)
CASES
BHXJ and National Disability Insurance Agency [2023] AATA 513
CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) (2012) 297 ALR 289
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
EXBL and National Disability Insurance Agency [2024] AATA 1543
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Russo v Aiello (2003) 215 CLR 643
Young and National Disability Insurance Agency [2014] AATA 401
SECONDARY MATERIALS
Including Specific Types of Supports in Plans Operational Guidelines – Sustaining Information Supports
National Disability Insurance Scheme (Supports for Participants) Rules 2013
NDIS Pricing Arrangements and Price Limits 2024-2025
Statement of Reasons
BACKGROUND

The Applicant, Romina Scaramella, (‘Romina’)[2] has been a participant in the National Disability Insurance Scheme (‘NDIS’) since 13 September 2018.
[2] Romina and her mother, Rosanne, share a surname. In these reasons, I refer to Romina and Rosanne by their first names and intend no disrespect in doing so. With Rosanne’s consent, this is how they were referred to during the hearing and I have continued to so in these reasons for clarity and to avoid confusion arising from their shared surname.
Romina is 26 years old and lives with her parents and her younger adult brother in their home.
Romina has significant intellectual, cognitive, sensory, and psychosocial impairments attributable to autism spectrum disorder (Level 3) (‘ASD’), Intellectual Disability, Type 1 Diabetes, Epilepsy, Coeliac Disease, Anxiety, and Obsessive Compulsive Disorder (‘OCD’).
Romina’s mother, Rosanne Scaramella, (‘Rosanne’) is her guardian, primary carer, and NDIS plan nominee, appointed under s 86 of the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’). Rosanne was registered as an enrolled nurse in July 1992, although her last registration date was July 2012. Rosanne currently provides around-the-clock intensive care to Romina within the family home.
Romina’s father works full time and provides minimal support and assistance to her activities and daily living. Romina’s brother is 21-years-old and works four days a week. He also provides limited assistance to Romina to assist Rosanne.
On 1 March 2023, the Agency received a Change of Situation Form on behalf of Romina, requesting that Rosanne be paid to provide support from NDIS funds (‘Requested Support’).[3]
[3] J1, T4.
On 23 March 2023, a delegate of the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (‘Agency’) decided to decline the Requested Support (‘Original Decision’).[4]
[4] J1, T7.
On 1 June 2023, the Agency received a request on behalf of Romina for internal review of the Original Decision.[5]
[5] J1, T10.
On 7 August 2023, a delegate reviewed the Original Decision, determining that the Original Decision should be varied, but not in respect of providing funding for the Requested Support (‘Internal Review Decision’).[6] This resulted in a new NDIS Plan being approved for Romina that, among other things, did not include funding for Rosanne to provide support to Romina. The declined funding was in respect to the following supports:
(i)funding to enable Rosanne to be paid as a support worker for Romina;
(j)an increase to Romina’s core consumables budget;
(k)funding for prepared meal delivery; and
(l)an upgrade from Level 1 to Level 2 transport funding.
[6] J1, T2.
On 25 August 2023, Rosanne commenced a review application on behalf of Romina to the then Administrative Appeals Tribunal (the ‘AAT’).[7] On 14 October 2024, the AAT was abolished and replaced by the Administrative Review Tribunal (the ‘ART’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the ‘Transitional Act’), an application for review to the AAT that was not finalised before 14 October 2024 is taken to be an application for review to the ART. The Transitional Act gives the ART the authority to continue and finalise any aspect of a review not already completed by the AAT.
[7] J1. T1.
Romina’s most recent statement of plan supports (‘SOPS’) includes, but is not limited to:[8]
(a)$108,190.04 for core supports, to be used flexibly, which can include funding to engage support workers to provide assistance with daily living activities, as well as to provide assistance with participating in community based activities and to build and maintain friendships. The Funding for core supports is to include:
(i)$4,720.63 for disability needs; and
(ii)$200.00 for low-cost assistive technology;
(b)$1,784.00 for transport to access community activities; and
(c)$5,819.70 for an occupational therapist to assess and provide strategies to increase independence in living skills.
[8] J1, T1A, pp 6-14.
Following the filing of the application, the Respondent has offered to include in the SOPS funding for the additional supports:
(a)1:1 high-intensity support worker assistance for 18 hours per day;
(b)Night-time sleepover support (inactive);
(c)24 hours of nursing care for specialist input and support;
(d)$5,500.20 per year for continence aids;
(e)$1,500.00 for communicative and cognitive equipment;
(f)48 hours for a registered nurse to provide support and guidance to support workers under a delegated model of care;
(g)Funding for behavioural support, being 45 hours of specialist behavioural intervention, and 20 hours of training in behaviour management strategies; and
(h)50 hours of Specialist Support Coordination to replace the current 24 hours for Support Coordination, Level 2.
Rosanne, as the NDIS plan nominee, has rejected the Respondent’s offer to increase the funding for supports in the SOPS.
Rosanne is seeking that the SOPS be varied to include that she be personally paid funding from the Core Supports budget, on the basis that she be paid for 38 hours a week as a 1:1 high-intensity support worker, as provided for in the NDIS Pricing Arrangements and Price Limits (‘Revised Requested Support’).
RELEVANT LAW AND GUIDELINES
A participant’s plan should, so far as reasonably practicable, be individualised and be directed by the participant.[9]
[9] National Disability Insurance Scheme Act 2013 (Cth) s 31.
Section 32 of the NDIS Act provides that the CEO of the Agency is required to facilitate the preparation of a participant’s plan. Section 33 of the NDIS Act provides that the plan must include the participant’s statement of goals and aspirations, and a SOPS prepared with the participant and approved by the CEO. It is noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the CEO.
The phrase ‘reasonable and necessary supports’ is not defined in the NDIS Act, but its meaning can be determined with the assistance of the provisions at ss 33 and 34 of the NDIS Act. As Mortimer J said in McGarrigle:[10]
Section 13 expressly indicates that a ‘support’ might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also ‘support’ - whether by way of services of activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word ‘support’ must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will ‘fund’ a support. The Agency cannot ‘fund’ funding.
…
Whether a support is ‘reasonable’ requires a different assessment to whether a support is ‘necessary’. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in ss 34(1)(a), (b) and (d). The word ‘reasonable’ would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase ‘reasonable and necessary supports’.
[10] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [88], [91] (‘McGarrigle’).
The Full Court of the Federal Court of Australia, in WRMF,[11] made the following observations about the meaning of ‘reasonable and necessary supports’:
[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.
[11] National Disability Insurance Agency v WRMF (2020) 276 FCR 415 (‘WRMF’).
Against this background, s 34(1) of the NDIS Act establishes mandatory criteria that must all be satisfied before the decision maker can be satisfied that a support is reasonable and necessary. As a consequence of the commencement of the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) on 3 October 2024, s 34(1) of the NDIS Act now provides:
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:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(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 an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
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)(aa) to (f).
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Support Rules’) prescribe further criteria and matters to which regard must be had when applying these tests. Among other things:
(a)in deciding if a support is effective and beneficial,[12] the decision maker must consider available evidence of the support's effectiveness, which can include published literature, expert opinion, and the lived experience of the participant or their carers;
(b)in deciding what is reasonable to expect families to provide,[13] the decision maker must consider matters including any risks to the wellbeing of the participant or their carers, the suitability and capacity of the family to provide the support, and the impact on the participant's independence; and
(c)a support will not be funded[14] if it is likely to cause harm, is not related to the disability, duplicates other supports, or relates to day-to-day living costs not attributable to the disability.
[12] National Disability Insurance Scheme (Supports for Participants) Rules 2013, s 34(1)(d).
[13] National Disability Insurance Scheme (Supports for Participants) Rules 2013, s 34(1)(e).
[14] See National Disability Insurance Scheme (Supports for Participants) Rules 2013, s 34(1)(f).
Finally, the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Supports Rules’) expressly exclude certain supports from being considered NDIS supports. Notably, Rule 5.3(b) of the Transitional Support Rules provides that a support that consists of ‘income replacement’ will not be funded, and Item 24 of Schedule 2 lists ‘income replacement’ as something that is generally not a NDIS support.
Funding of supports and ‘income replacement’
The Transitional Supports Rules modified the operation of s 34 of the NDIS Act by excluding certain supports from inclusion in SOPS. Schedule 2 to the Transitional Supports Rules outlines supports that are generally not considered NDIS supports.
Item 24 of Schedule 2 of the Transitional Supports Rules provides that ‘income replacement’ is not a NDIS Support. Rule 5.3(b) of the Transitional Support Rules provides that ‘a support that consists of income replacement’ is a support that will not be funded or provided as a NDIS support.
The Agency has referred to the Including Specific Types of Supports in Plans Operational Guidelines – Sustaining Information Supports (‘Guidelines’). While the Guidelines do not have statutory force and are not binding on the Tribunal, they should be applied unless there is good reason not to do so.[15] The Guidelines provide that the Agency will only fund family members to provide supports in exceptional circumstances.[16] It gives three examples of what might constitute ‘exceptional circumstances’, but does not limit it to those examples.[17]
[15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. However, see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
[16] Including Specific Types of Supports in Plans Operational Guidelines – Sustaining Information Supports, [11.1].
[17] Including Specific Types of Supports in Plans Operational Guidelines – Sustaining Information Supports, [11.1]. See Klewer and National Disability Insurance Agency [2022] AATA 566, [165].

In WRMF[18] the Full Court observed:[19]
The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community, and to do so on the basis of the values set out in the objects and guiding principles clauses of the Act, as well as the values set out in s 17A of that Act …
[18] National Disability Insurance Agency v WRMF (2020) 276 FCR 415.
[19] National Disability Insurance Agency v WRMF (2020) 276 FCR 415, [141]-[151].
Both adjectives qualify the noun ‘support’, but they do so as a composite phrase.[20]
[20] National Disability Insurance Agency v WRMF (2020) 276 FCR 415, [150].
The Full Court of the Federal Court of Australia considered the meaning of ‘reasonable and necessary supports in WRMF:
… the phrase connotes supports which meet a threshold which justifies – by reference to the context, objects and guiding principles of the Act and the facts of the case – the expenditure of public funds for that support, for a particular participant.[21]
[21] National Disability Insurance Agency v WRMF (2020) 276 FCR 415, [151].
When addressing the Support Rules in McGarrigle, Mortimer J relevantly states:
The [Support Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement … some policy decision-making about the nature and extent of supports to be provided or funding under the NDIS.[22]
[22] McGarrigle v National Disability Insurance Agency [2017] FCA 308, [43].
Section 44 of the NDIS Act provides for the circumstances in which persons must not manage NDIS funding. Relevantly, that includes where the management of funding by that person would present an unreasonable risk to the participant.[23]
[23] National Disability Insurance Scheme Act 2013 (Cth), s 44(1)(b).
Plan nominees
Rosanne is Romina’s plan nominee under s 86 of the NDIS Act. As such, she is subject to the National Disability Insurance Scheme (Nominees) Rules 2013 (Cth) (‘Nominees Rules’). Rule 5.12 of the Nominees Rules states:
A Nominee has a duty to the participant to:
(a)Avoid or manage any conflict of interest in relation to the nominee and the participant; and
(b)Inform the CEO of any such conflict of interest as it arises.
Further, r 5.13 of the Nominees Rules states:
Without limiting paragraph 5.12, a conflict arises if the nominee is, in a professional or administrative capacity, directly or indirectly responsible for, or involved in, the provision of any services for fee or reward to the participant.
THE ISSUES ARISING
Broadly speaking, the issues to be determined by in this review application are:
(a)whether the Revised Requested Support amounts to income replacement for Rosanne, and if so, whether the use of NDIS funds for this purpose is impermissible under the provisions of the relevant Support Rules;
(b)If the answer to (a) is no, whether the Revised Requested Support would result in Rosanne being unable to comply with her statutory duties as the NDIS Plan nominee, such that the funding in the SOPS should not be utilised for the Revised Requested Support;
(c)If the answer to (b) is no, whether the Revised Requested Support meets the criteria of being a reasonable and necessary support, as required by s 34(1) of the NDIS Act;
(d)If the answer to (c) is yes, whether the Revised Requested Support is most appropriately funded through another system of service delivery or support services; and
(e)whether a delegated model of care, where a registered nurse supervises the administration of Insulin to Romina, contravenes, or has the potential to contravene, the Medicines and Poisons Act 2014 (WA) (‘Medicines and Poisons Act’), and if so, the effect of such a conclusion.
However, my task also includes looking at all of the reasonable and necessary supports for Romina, including those supports raised in the course of the proceedings.[24] I must remake the decision to come to the correct or preferable decision on the evidence before me.[25]
[24] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[25] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
THE HEARING AND EVIDENCE BEFORE THE TRIBUNAL
The hearing was held by video on 16 and 17 April and on 23 May 2025. Understandably, Romina did not attend the hearing, but was represented by Rosanne, who gave evidence. The Respondent was represented by Ms Jennifer Flinn of counsel, instructed by Ms Jane Thomson of Moray & Agnew Lawyers.
The parties compiled a Joint Tender Bundle, which the Agency filed on 3 April 2025. The Joint Tender Bundle, save for various interaction notes, was tendered as Exhibit J1.
During the hearing, I did not allow Rosanne’s objection to the tender of ‘interaction notes’, which she objected to on the basis that her consent was not obtained to take notes of her telephone calls with the Agency and admitted them into evidence. For reasons that I explained at the hearing, I did not accept that the Agency was required to obtain consent to make ‘notes’ of a telephone call with Rosanne. I was also satisfied that the notes were business records within the meaning of the Evidence Act 1995 (Cth) and was satisfied that, in all the circumstances, it was evidence that I should admit in the proceedings.
That said, in any event, having admitted that material and considered it, I do not consider that anything turns on this evidence.
The Applicant called the following witnesses to give oral evidence:
(a)Rosanne;
(b)Dr Peter McCarey, Romina’s General Practitioner;
(c)Ms Kylie Pates, Romina’s Occupational Therapist; and
(d)Ms Debbie Titterington, who is a Support Coordinator that has worked with Rosanne and Romina.
The Respondent called Dr Stephen Thornley, an endocrinologist, as a witness.
Evidence of Rosanne
Rosanne is Romina’s mother. In addition to providing oral evidence, she has provided two detailed carer impact statements outlining the extent, complexity, and intensity of the care she provides to Romina.[26] Her evidence provides a comprehensive account of Romina’s daily routine, the risks associated with her care, and the basis upon which she seeks to be funded as a paid support provider.
[26] J1, T12, pp 117-120.
Rosanne’s role caring for Romina
Rosanne is Romina’s sole carer and appointed guardian. She reports providing full-time, high-intensity care that begins each day between 4am and 5am, and continues until midnight, with overnight monitoring and medical interventions. Her account reveals that Romina’s case involves:
(a)frequent blood glucose monitoring, often every 10 to 30 minutes depending on the circumstances and Romina’s blood sugar variability;
(b)administration of insulin injections, both long-acting and fast-acting, with dosing adjusted based on real-time glucose readings, physical activity, and behavioural triggers;
(c)delivery of anti-epileptic medications in precise oral doses to prevent seizures, which must be given under close supervision to avoid choking;
(d)meal preparation tailored to coeliac disease and carbohydrate content, with food weighed, portioned, and presented in a consistent order to meet rigid behavioural routines; and
(e)full assistance with all personal care, including toileting, bathing, hair and skin care, dressing, and oral hygiene, in line with Romina’s sensory sensitivities and OCD.
Romina is described as non-verbal, reliant on sign language and augmentative and alternative communication (‘AAC’), and unable to self-report or recognise symptoms of hypo- or hyperglycaemia. Rosanne states that her ability to identify changes in Romina’s condition is based on long-term observation and behavioural cues, such as yawning or zoning out.
Romina’s needs
Rosanne’s evidence was that there is a need for real-time clinical judgement in managing Romina’s brittle diabetes. She described the risks of insulin stacking, the importance of precise carbohydrate-insulin balance, and the necessity of behavioural management to avoid medical emergencies. She reported that Romina’s HbA1c readings have remained within the target range since diagnosis, attributing this to her own vigilance and medical background.
She explained that environmental disruptions, emotional distress, or deviations from routine can result in significant behavioural dysregulation, leading to dangerously fluctuating blood sugar levels. Meltdowns, anxiety, and obsessive routines are claimed to acutely affect Romina’s physiological stability.
Romina’s blood sugars are monitored throughout the night at intervals between 20 minutes to two hours. Rosanne stated that she averages three hours of sleep per night, interrupted by testing, insulin administration, or corrective feeding (e.g. measured amounts of lemonade or biscuits). Rosanne actively monitors Romina’s blood sugar levels during the night.
Rosanne described extensive efforts to engage private support workers and providers. Rosanne claimed that over 30 support workers were interviewed, but none were found suitable. The identified issues included lack of English proficiency, insufficient training in diabetes and coeliac disease, and high staff turnover. Attempts to use provider services failed due to billing errors, inconsistent communication, and an inability to provide staff with the required qualifications or continuity. Nursing agencies, including Silver Chain, were unable to guarantee adequate care standards.
Rosanne claimed that any external worker would still require her guidance and supervision to perform tasks safely, increasing rather than reducing her workload and stress. She stated that only her presence guarantees Romina’s safety and emotional stability.
Rosanne’s evidence also discussed the emotional impact that caring for Romina has on her, including the impact on her son and husband. Her son, who lives with Attention Deficit Hyperactivity Disorder and anxiety, attempts to assist but lacks the expertise to manage Romina’s diabetes. Her husband is medically unfit and is unable to contribute to or engage in Romina’s care. Additionally, Rosanne described how Romina exhibits an obsessive fixation on her brother’s whereabouts, triggering significant behavioural and physiological responses when he is absent.
Rosanne’s evidence provided a detailed, firsthand insight into the sustained, specialised, and complex nature of the care she delivers. Her account supports the proposition that the intensity of Romina’s needs exceeds what can reasonably be met through informal supports, and that her qualifications, experience, and relationship with Romina uniquely position her to deliver care safely and effectively. She asserts that replacing her with unfamiliar or rotating staff would increase risk and degrade the quality of care Romina receives.
Evidence of Alicia Gorman, Speech Pathologist
Ms Alicia Gorman (‘Ms Gorman’) provided written reports dated 30 March 2017, 8 May 2017, and 25 February 2019. Her evidence outlines the nature and progression of the Applicant’s communication difficulties, behavioural responses to distress, and the increasing complexity of her support needs following her diagnosis of Type 1 diabetes.
In her initial assessments, Ms Gorman described Romina as a young woman who, upon completing high school, was exploring post-school options. At that time, Romina communicated through a combination of Key Word Sign, gestures, vocalisations, and body language. Ms Gorman observed that Romina could become highly distressed when not understood, at times screaming or hitting herself. Attempts to engage Romina using communication books or devices were largely unsuccessful, with Romina showing a preference for written communication. Romina was able to identify 25 out of 26 uppercase letters and could select responses from a choice of written words, albeit with variable accuracy. Based on these observations, Ms Gorman developed a therapy plan focused on improving Romina’s comprehension and expression through written language, and implemented a literacy program to be used with support workers.
Following further sessions, Ms Gorman reported positive outcomes. The use of social stories had successfully supported Romina’s understanding of routine and event changes. Feedback from Romina’s support workers and family indicated that written communication was a particularly effective mode of engagement. A structured language and literacy program had been established and was reportedly well received by Romina. However, Ms Gorman noted that continued support and updates to the program would be required to maintain Romina’s progress.
In her report dated 25 February 2019, Ms Gorman described the additional challenges arising from Romina’s diagnosis of Type 1 diabetes, layered upon her existing disabilities, including ASD. Romina’s high anxiety and behavioural rigidity had previously precluded visitors to the family home for a three-year period. The family had observed intense distress responses when Romina’s routines or environment were altered, including the removal of all food from the house and refusal to attend venues based on visual changes.
According to Ms Gorman, Romina had not only communication difficulties but also required consistent reassurance and structure to manage her anxiety. She described Romina’s reliance on Rosanne, not only for emotional regulation but also for interpreting her non-verbal cues during episodes of medical distress. Of particular concern was Romina’s inability to self-report symptoms of hypo- or hyperglycaemia. Ms Gorman indicated that Rosanne’s familiarity with Romina’s behavioural patterns was essential to identifying and responding to these episodes.
Ms Gorman noted that Romina’s blood sugar levels required manual testing every 30 minutes during the day and as frequently as every 15 minutes when low. During the night, Rosanne was required to conduct tests at two-hour intervals. Attempts to transition to a Continuous Glucose Monitor had not been successful due to Romina’s severe sensory sensitivities. These demands significantly impacted Rosanne’s ability to maintain regular sleep and employment.
While Romina had demonstrated progress in communication, particularly by using electronic devices and structured written prompts, Ms Gorman emphasised that her needs remained highly demanding and often exceeded what one person could manage alone. She recommended a comprehensive package of multidisciplinary support, including nursing support for diabetes management, and highlighted the importance of consistency and familiarity in staffing to minimise distress and support ongoing development.
In summary, Ms Gorman’s evidence supports the conclusion that Romina’s communication and behavioural needs are complex and highly sensitive to change. Rosanne has played a central role in both implementing and facilitating communication strategies and in managing the medical demands associated with diabetes. Ms Gorman’s evidence also points to the risk of harm if those supports are not delivered by appropriately trained and familiar individuals.
Evidence of Kylie Pates, Occupational Therapist
Ms Kylie Pates (‘Ms Pates’) provided written and oral evidence to the ART. Her written evidence comprises two comprehensive letters of support, dated 16 November 2023 and 27 February 2024. She also gave oral evidence at the hearing on 23 May 2025.
In her written evidence, Ms Pates indicated her focus was on Romina’s complex disability-related support needs. She advocated for adjustments to Romina’s SOPS, including the approval of Rosanne as a paid support worker.
During cross-examination, Ms Pates confirmed she authored the letter of support dated 16 November 2023, and was aware it was for the AAT proceedings. She stated she had been provided with the statement of issues by Rosanne or Legal Aid. Ms Pates described the purpose of the letter as advocating for increased support and funding adjustments in Romina's NDIS plan, viewing such advocacy based on her clinical evidence as part of her professional role. She confirmed she was not provided with the AAT's guidelines for expert evidence before providing this letter.
Ms Pates also confirmed preparing a second report dated 20 April 2023, approximately three months after her Functional Capacity Assessment (‘FCA’) of 23 January 2023. This was because a plan review using the first FCA resulted in an underfunded plan. The support coordinator, Ms Debbie Titterington (‘Ms Titterington’), asked her to review functional information for a s 100 request, based on NDIS feedback about underutilisation of Romina's previous plan and a need to address meal preparation. Ms Pates stated her conclusions and recommendations regarding supports remained the same between these two reports.
Ms Pates confirmed her last face-to-face consultation with Romina was on 10 March 2025. Her previous consultation was in 2023, and she explained the gap was due to parental leave. Her last report was dated 16 November 2023. Rosanne had requested her to give evidence, but they had not discussed Rosanne’s evidence beforehand, and Ms Pates had not seen it.
Romina’s Diagnoses, Functional Limitations, and Behaviours
In her written reports, Ms Pates outlined Romina’s diagnoses and explained how these conditions interact to significantly impair Romina’s physical, cognitive, behavioural, and communicative functioning. She stated Romina is non-verbal, unable to safely engage in self-care or meal preparation, and requires constant one-to-one support for all aspects of daily living.
In her oral evidence, Ms Pates described Romina’s significant difficulties with changes to her routine and the introduction of new individuals into her home. She stated Romina experiences distress even if new individuals are known to her if their presence is new within that day's cycle. During Ms Pates' visit on 10 March 2025, Romina initially permitted entry but then became extremely controlling. Ms Pates explained Romina considers her home her safe area and has difficulty with others in her space.
Ms Pates elaborated that Romina communicates non-verbally, often using physical touch and redirection, such as placing hands on Ms Pates or moving her between rooms. She stated Romina does this to guide Ms Pates through what Romina perceives as the routine for the visit, frequently trying to expedite Ms Pates' departure. This behaviour requires significant redirection and explanation, primarily from Rosanne, to set expectations. Ms Pates observed Romina will try to rush conversations to regain control of her environment and that if support is provided for extended periods, Romina's need to control her environment and the people within it tends to increase.
Ms Pates described her attempts to resist Romina's efforts to rush interactions by using redirection and engaging Romina in her interests. She noted Romina's capacity to accept this varies, but often she is not receptive. When Romina becomes escalated, she exhibits increased vocalisations and rushing behaviours, and may step into one's personal space, though Ms Pates clarified Romina is not aggressive, and she did not feel her wellbeing was at risk. The main concern, Ms Pates stated, is the impact on Romina and her distress. Therapeutic skills can sustain engagement for only a very short timeframe; the longest session Ms Pates had with Romina was about an hour, which she considered a ‘very good day’.
Ms Pates observed on her last visit that Romina was notably calmer and more receptive than when she was supported by someone other than Rosanne previously. She explained that Romina needs to be aware of, and in control of, everyone's location and activities within the house. The presence of additional people increases Romina's anxiety, leading to more OCD-based patterns as she tries to control her environment more. Ms Pates attributed Romina's calmer state during that visit to fewer people being in her space.

The April 2023 report, as confirmed in cross-examination, noted Romina displays multiple behaviours of concern, such as perseverating behaviours, that require interventions from supports. Ms Pates suggested psychological support would be better placed to address perseverating behaviours as they relate more to Romina's OCD.
High-Intensity Support Needs and Diabetes Management
Ms Pates’ written evidence categorised Romina’s supports under the NDIS High Intensity Support Descriptors. These include subcutaneous injections for insulin administration; complex bowel care, managed exclusively by Rosanne due to behavioural refusals and sensory aversions; and seizure monitoring and emergency response, requiring familiarity with Romina’s presentation and prompt intervention.
In her oral evidence, Ms Pates stated that Romina's Type 1 diabetes diagnosis and its fluctuating nature have impacted her ability to work towards her NDIS plan goals. Her day-to-day presentation, influenced by her diabetes, significantly affects whether goals can be worked on at any given time.
During cross-examination, Ms Pates confirmed her January 2023 report noted Romina received five to eight insulin injections daily and was typically compliant when her mother provided them. Ms Pates acknowledged she should have expanded on this in the report. She has witnessed Romina being unreceptive to support workers attempting injections, necessitating Rosanne to step in, attributing this to sensory impact and Romina's desire to control who implements her routine. Ms Pates stated she has no experience in, nor was she taught as an Occupational Therapist, how to make someone more receptive to an insulin injection. She is not aware of other Occupational Therapists who assist with subcutaneous injections, stating this is typically handled by diabetic management professionals, though Occupational Therapists might collaborate on sensitivities.
Skills of Support Workers
In her written evidence, Ms Pates expressed the view that support workers, even when trained, do not possess the specific skills or consistency required to manage Romina's high-intensity conditions effectively, particularly given the behavioural risks associated with insulin errors or misinterpreted seizure activity.
Under cross-examination, Ms Pates accepted that a high-intensity support worker would have the necessary skills to provide Romina with physical assistance for personal care, meal preparation, transportation, community access, and active overnight support. However, she would not accept that a high-intensity support worker has the skills to test Romina's sugar levels. She did accept that individuals with no medical training, such as Mr Scaramella or Romina's grandmother, can test Romina's blood sugar levels.
Rosanne as a Paid Support Worker and Carer Impact
Ms Pates’ written evidence described Romina’s reliance on Rosanne as her primary and consistent caregiver as essential. She noted Rosanne provides all high intensity supports, including personal care, diabetes management, seizure monitoring, behavioural regulation, and assistance with community access. Rosanne also attends to sleep routines, bowel care, and administers insulin. Rosanne’s prior experience as an Enrolled Nurse is regarded in the written evidence as integral to the quality and safety of care Romina receives.
Consequently, Ms Pates recommended in her written reports that Rosanne be approved as a paid support worker, describing this arrangement as necessary and appropriate. She relied on Rosanne’s dual role as guardian and former nurse, her intimate knowledge of Romina’s needs, and the failure of previous attempts to involve external support workers due to skill mismatches as justification. Ms Pates asserted in writing that without Rosanne’s involvement, there is a 'real chance of serious harm' and neglect. She submitted that Rosanne's responsibilities exceed what could reasonably be expected of an informal support and that compensation would alleviate carer burnout, ensure continuity of care, and improve support sustainability.
During cross-examination, Ms Pates confirmed that her January 2023 FCA stated Rosanne's inability to engage in paid employment had ‘severely impacted the sustainability of the family unit and the family home’, based on Ms Scaramella's report to her. In the January 2023 FCA, Ms Pates observed an opinion that Rosanne's long-term provision of high-intensity overnight support was not sustainable and placed her at 'significant risk' of carer burnout. The caregiver strain index, on which Rosanne scored highly, measures the impact of providing care. Ms Pates stated Rosanne later reported her burnout was more related to organising and monitoring services, rather than direct care, and believed her strain would be significantly reduced without these organisational tasks. Ms Pates acknowledged some questions in the index related directly to physical care. When asked if 18 hours a day of high-intensity support would reduce Rosanne's burnout risk, Ms Pates said, in relation to Romina's needs, ‘no’, and then ‘I could not say’.
Regarding overnight sleepover support, Ms Pates understood Romina would not be receptive and would seek her mother regardless of other supports being present; she was not aware if this had been trialled.
In relation to observations in her written report about efforts to explore support worker involvement, Ms Pates confirmed in cross-examination that she did not personally undertake these efforts or approach companies, as it was not her role. Her knowledge was based on advice from the support coordinator and Rosanne, and the history of service cessations. She has no direct knowledge of provider policies regarding diabetes management tasks, nor which specific providers were approached.
In relation to comments in her report about ‘notification of conflict of interest’, Ms Pates stated these were based on the statement of issues provided to her. She explained OTs must ensure clients/families are aware of responsibilities regarding supports and potential conflicts, particularly for nominees. She accepted it was not within her OT expertise to comment on Rosanne's understanding of NDIS ethical considerations, though she did bring the general concept of conflict of interest to Rosanne's attention.
Capacity Building, Other Therapies, and Community Access
Ms Pates expressed her opinion in her written evidence that Romina is unlikely to ever build capacity to independently manage her diabetes, tolerate an insulin pump, or engage in independent meal preparation, due to sensory aversions, cognitive impairments, and rigid behaviours.
During cross-examination, Ms Pates confirmed that information in her January 2023 FCA, about Romina receiving positive behaviour intervention for several years prior to her Type 1 diabetes diagnosis and thriving as a result, was reported to her by Rosanne and the support coordinator, Ms Titterington. At the time of that report, Romina was not receiving positive behavioural support or speech pathology due to COVID-19. Ms Pates believed it would be beneficial for Romina to restart speech pathology but stated it was not her place to say if restarting positive behavioural support would be beneficial now.
The April 2023 report, as Ms Pates agreed in cross-examination, referred to Romina’s engagement in various community activities prior to COVID-19 restrictions. Ms Pates agreed it would be beneficial for Romina to re-engage in similar activities from an occupational therapy and therapeutic perspective.
Assistive Technology, Equipment, Transport, and Meal Support
Ms Pates’ written evidence included detailed recommendations for low-cost assistive technology, such as a communication device and app (Proloquo2Go), sensory tools, visual schedules, daily living aids (like non-slip mats, absorbent floor pads), and bathroom safety items and adaptive eating equipment. She opined in favour of an annual low-cost assistive technology budget of $1500, plus separate provisions for device maintenance, highlighting these tools as essential to support Romina’s participation, reduce anxiety, and accommodate sensory sensitivities.
Ms Pates also supported increased transport funding due to Romina’s inability to use public transport, the need for consistent private transport for medical appointments, and rising fuel and vehicle maintenance costs. She further recommended meal delivery services due to Romina’s strict dietary requirements (diabetes and coeliac disease) and her inability to safely engage in meal preparation. As noted earlier, her second report of April 2023 was, in part, to address NDIS feedback concerning meal preparation.
Complex diagnoses and functional limitations
Ms Pates outlined Romina’s diagnoses and explained how these conditions interact to significantly impair Romina’s physical, cognitive, behavioural, and communicative functioning. Romina is non-verbal, unable to safely engage in self-care or meal preparation, and requires 24/7 one-to-one support for all aspects of daily living.
Romina’s reliance on Rosanne as her primary and consistent caregiver is described as essential. Ms Pates noted that Rosanne provides all high-intensity supports, including personal care, diabetes management, seizure monitoring, behavioural regulation, and assistance with community access. She also attends to sleep routines, bowel care, and administers insulin. Rosanne’s prior experience as an Enrolled Nurse is regarded as integral to the quality and safety of care the applicant receives.
Criticisms of Ms Pates’ evidence
The Respondent submitted that the evidence of Ms Pates should be given little weight, contending that she acted as an advocate for Romina and gave opinions outside her area of expertise.
I have carefully considered this submission. It is not uncommon for treating health professionals to express strong views in support of the needs of their patients, particularly those with profound disabilities. I accept that Ms Pates gave her evidence in a manner that showed considerable concern for Romina’s well-being.
However, having observed her give evidence and having reviewed her detailed reports, I am not satisfied that this concern undermined the objectivity or substance of her clinical assessments. Her opinions were grounded in her direct observations of Romina during multiple FCAs, and her conclusions regarding Romina's high-intensity support needs and the risks associated with inadequate care were consistent with, and corroborated by, the extensive medical evidence from Romina’s treating specialists and the independent opinion of Dr Thornley. For these reasons, I am prepared to give Ms Pates’ evidence substantial weight.
Evidence of Ms Titterington
Ms Titterington was Romina’s Support Coordinator who, among other things, prepared a letter to the Agency on Rosanne's behalf in late 2023.
Ms Titterington appeared before the Tribunal to give oral evidence on 23 May 2025. In her oral evidence, Ms Titterington stated that Rosanne had used Avivo, a support agency, for ‘a long while’. She encountered multiple problems with Avivo, including persistent errors with invoicing, such as billing for dates when services were not provided and incorrect costings. Ms Titterington also stated that Avivo was often unable to provide suitable replacement support workers if one of Romina’s two main support workers was unavailable.
Ms Titterington described the impact on Rosanne over the ten years of Avivo's involvement as ‘dreadful’. She stated Avivo caused drama and stress, making Rosanne cry daily, rather than alleviating pressure. She also noted a high turnover of Avivo’s coordinators, who often seemed unfamiliar with Romina’s case files, support needs, diabetes, and allergies. Ms Titterington found this concerning given Romina's level of care needs.
Ms Titterington observed that when Avivo services ceased and no support workers were attending the home, there was less stress in the family and a more peaceful environment. She observed that Rosanne exhibited less anxiety, and a routine was established, which helped Romina experience less anxiety and fewer challenging behaviours. The home environment was calmer.
Ms Titterington detailed that she had discussions with Rosanne about various providers who might possess the necessary skills to support Romina. Multiple organisations were contacted by both Rosanne and Ms Titterington to assess their suitability. The outcome of these contacts was that none of the providers approached had support workers experienced or medically trained enough to provide the level of care Romina required to ensure her safety. Ms Titterington recalled an instance where Rosanne interviewed support workers from an agency; one applicant had a disability and lacked the necessary medical knowledge and understanding of Romina's behaviours.
Ms Titterington gave evidence that she explored approximately eight providers on behalf of Rosanne, including Avivo. She clarified that the lack of ‘medical qualifications/training’ in support workers referred to their insufficient understanding of Romina's unstable blood sugar levels, how to respond to high or low blood sugar levels and, in some cases, poor English comprehension. She noted that Romina cannot monitor her own levels. The concern related to both a lack of experience and insufficient training or qualifications. Workers also lacked an understanding of Romina’s behaviours and how to manage escalations. Ms Titterington expressed the view that to care for Romina safely, a support worker would need prior training in diabetes management, including understanding blood sugar levels and administering injections, rather than just on-the-job learning. She stated this would require more skill than a standard Level 3 support worker could offer.
During cross-examination, Ms Titterington stated she would need to check her case notes for the exact dates she approached the eight providers but offered approximate years as 2021 and 2022, with some notes dating from August 2022. She mentioned that access to older notes from a previous system, LiTech, is difficult. She confirmed she has not contacted any providers on behalf of Romina in the last two years.
Ms Titterington did not participate in the interviews Rosanne undertook for support workers. She confirmed that before the disagreement with Avivo, the agency had provided services to Romina for ten years. This support was primarily delivered by two support workers whom Ms Titterington claimed Rosanne had initially found, interviewed, and trained. One of those workers had to cease due to refusing to receive a COVID-19 vaccination and the other worker, Ms Titterington says she understood, found alternative employment. She has no knowledge of whether Rosanne attempted to employ these workers directly. Ms Titterington believed these two workers were engaged as high-intensity support workers but was not certain. They had provided support for ‘many years’.
Ms Titterington confirmed her signature on a Change of Circumstances form dated 1 March 2023 and recalled filing it. The information in the form was based on what Rosanne provided. She acknowledged that the last time she had contacted a provider was in 2022, while this form was dated March 2023.
Ms Titterington gave evidence about a phone conversation with an NDIS planner on 20 March 2023. She confirmed telling the planner during that conversation that ‘there were many providers available to support the participant in all areas, but the mother rejects the option’.
Ms Titterington confirmed that an email sent to her and Rosanne on 23 March 2023 outlined the Agency's reasons for declining the change of circumstances form. Rosanne discussed these reasons with her, including the 'real risk of significant harm' through carer burnout and conditions for informal carers providing support. Responding to the suggestion that Rosanne ‘has provided informal supports because of [her] preference’ and was because Rosanne was ‘not comfortable with other paid workers’, Ms Titterington’s evidence was that she had advised Rosanne that the NDIS approving a family member to provide supports using NDIS funds is extremely unusual. She stated it is typically reserved for extreme circumstances, such as Indigenous people in remote areas with no other support networks.
Rosanne asked Ms Titterington to prepare a letter to the Agency dated 23 November 2023 to advocate for Rosanne to be able to support Romina herself. The letter discussed issues with Avivo and concerns about supporting Romina during the COVID-19 pandemic, referring to the period of lockdown and NDIS vaccination rules. Ms Titterington clarified that a support worker having a COVID-19 vaccination did not remove all barriers to providing support. Other barriers included a lack of knowledge and care skills for Romina's diabetes, coeliac disease, and 'significant harm' related to behaviours of concern, which require specific understanding and training.
Ms Titterington stated she has not provided active support coordination services for Romina for the past two years. This was because the family was engaged in the AAT process, and she felt there was not much she could do without a plan to implement or providers to connect with. She did not recall Rosanne contacting her between January and March of 2025 for service provider contact details. Ms Titterington could not recall the last time she had a conversation with Rosanne for the purpose of arranging or coordinating supports, stating it had ‘been a long while’. It has also ‘been a while’ since she submitted a Support Coordination Implementation Report to the Agency for Romina, due to the AAT process and difficulties finding a suitable provider.
Ms Titterington described Support Coordination Implementation Reports as feedback to the Agency on plan implementation, supports sourced, what is working, and Romina’s progress with her NDIS plan, using an Agency template. These reports detail engagement, goals, next steps, and referrals.
Ms Titterington confirmed she had Rosanne's signed consent to discuss and act on Romina's behalf with the NDIS when she engaged with the planner. Ms Titterington confirmed that neither she nor her agency, Intelife, are registered as Level 3 Specialist Support Coordinators. Her agency decided against pursuing this pathway. Rosanne had informed her that the Agency had offered funding for a specialist support coordinator. Rosanne did not ask Ms Titterington for assistance in finding or engaging a specialist support coordinator.
Endocrinology evidence
Romina has a confirmed diagnosis of Type 1 Diabetes mellitus, established following an acute presentation with diabetic ketoacidosis in November 2017. This diagnosis, along with its management, is comprehensively documented across multiple reports and letters from her treating endocrinologists at Fiona Stanley Hospital, including registrars and senior consultants such as Dr Nely Khatri, Dr Timothy Lin, Dr Della Dedic, Dr Danish Mahmud, Dr Gregory Ong, and Dr Gerry Fegan.
The clinical evidence indicates that Romina’s diabetes management is significantly complicated by her co-existing disabilities. She is non-verbal, has ASD, epilepsy, coeliac disease, and iron and vitamin D deficiencies. Her inability to communicate hypoglycaemic symptoms and her heightened sensory sensitivities have shaped the manner and intensity of her treatment.
Initial hospital records confirm that Romina presented with a severe metabolic disturbance consistent with diabetic ketoacidosis. Her blood glucose at presentation was markedly elevated, ketone levels were high, and her acid-base status was deranged. She was initiated on insulin therapy and began close outpatient follow-up through the hospital’s endocrine clinic.
Subsequent endocrinology reviews over several years document a structured and highly vigilant management regimen implemented almost entirely by Rosanne. Insulin regimens were gradually adjusted and included a shift from NovoMix to a basal-bolus strategy using Levemir and NovoRapid, later titrated to specific carbohydrate counts per meal. These adjustments were guided by frequent blood glucose testing, reportedly undertaken up to 14 times per day, including multiple tests overnight. Rosanne’s concerns about undetected hypoglycaemia, given Romina’s communication barriers, were consistent across all reports. Several clinicians described Rosanne’s vigilance as the primary factor preventing adverse glycaemic events.

Attempts to introduce Continuous or Flash Glucose Monitoring devices were unsuccessful due to Romina’s intolerance to adhesive devices. Despite this, clinicians noted Rosanne’s ability to detect and manage fluctuations in blood glucose levels effectively through traditional finger-prick testing. Glycaemic control, while not optimal, remained relatively stable with HbA1c levels ranging between 7.9% and 9.1% in subsequent reviews, an outcome described by treating clinicians as acceptable given the complexities involved.
Multiple reports also confirm Romina’s coeliac disease diagnosis in early 2019, based on positive serology. Rosanne initiated a gluten-free diet, which was reported to have a positive impact on both energy levels and blood glucose stability. Iron and vitamin D deficiencies have also been monitored and treated conservatively, with adjustments made to supplementation in response to side effects and seasonal changes.
The treating endocrinologists consistently expressed concern about the sustainability of the care arrangement. While commending Rosanne’s diligence, clinicians recognised the intensity of care required and the potential risks of burnout. Nonetheless, no concerns were raised about the appropriateness or safety of the care provided by Rosanne, and her familiarity with Romina’s medical and behavioural patterns was regarded as a key protective factor in achieving acceptable clinical outcomes.
In summary, the medical evidence from the treating endocrinologists confirms Romina’s diagnosis of Type 1 Diabetes and its management challenges. It highlights the complexity of care required, the importance of frequent monitoring, and the role of Rosanne as the central figure in a clinically stable, though highly labour-intensive, management plan. These reports do not dispute the need for high-intensity support but do not express a position on whether such care ought to be funded under the NDIS framework. Their value lies in corroborating Romina’s ongoing medical needs and the intricacies of her daily care.
Evidence of Dr Stephen Thornley, Consultant Endocrinologist
Dr Stephen Thornley (‘Dr Thornley’), a consultant endocrinologist with 28 years of experience and certification as an independent medical examiner, provided a comprehensive report dated 9 September 2024 following an in-person assessment of Romina at her home. His opinion was based on clinical observation, review of medical records, and an interview with Rosanne.
Diagnosis and clinical background
Dr Thornley confirmed that Romina has Type 1 Diabetes mellitus, diagnosed six years prior after presenting with diabetic ketoacidosis. This diagnosis was confirmed serologically through the presence of GAD antibodies. Romina also has ASD (non-verbal with sensory features), intellectual disability, epilepsy, coeliac disease, and severe anxiety with obsessive-compulsive behaviours. Dr Thornley personally observed behaviours consistent with OCD during the assessment, including strict adherence to routines and heightened anxiety in response to environmental changes.
Dr Thornley observed Romina to be non-verbal and unable to communicate symptoms of hypo- or hyperglycaemia. Dr Thornley agreed that Romina is entirely dependent on Rosanne for all aspects of diabetes management, including blood glucose monitoring and insulin administration.
Diabetes management and monitoring
Dr Thornley considered Romina’s current diabetes management regime appropriate and well-implemented. She follows a basal-bolus insulin regimen consisting of Levemir and NovoRapid, adjusted based on blood glucose readings and carbohydrate intake. Dr Thornley confirmed that this approach remains a gold standard treatment for Type 1 Diabetes. He did not recommend changes to the insulin types or regimen.
Rosanne monitors Romina’s blood glucose levels up to 30 times per day. While this frequency exceeds usual clinical recommendations, Dr Thornley considered it justified due to Romina’s inability to recognise or communicate glycaemic symptoms. He regarded this approach as a practical substitute for continuous glucose monitoring (‘CGM’), which Romina had trialled unsuccessfully due to sensory intolerance. Dr Thornley suggested that renewed consideration of CGM may be appropriate in the future, given technological advances, but noted that it would require specialist support and behavioural strategies to address Romina’s sensory aversions.
Notably, Romina has not experienced any severe hypoglycaemic episodes or hospital admissions for diabetic complications since her diagnosis. Dr Thornley attributed this outcome to Rosanne’s exceptional diligence in her management of Romina’s diabetes. He noted that overnight monitoring, including up to four checks per night, is necessary in Romina’s case given her inability to detect nocturnal hypoglycaemia and the absence of CGM.
Carer dependency and clinical risks
Dr Thornley emphasised that Romina requires constant supervision, including during the night. He stated that she must be observed continuously to ensure prompt identification and correction of glycaemic excursions. While he acknowledged that such intensive care would not be typical in a verbal or self-aware patient, he considered it clinically warranted in Romina’s unique circumstances.
In terms of broader care, Dr Thornley confirmed that Romina is fully dependent on Rosanne for medication management, meal preparation, toileting, and all personal care tasks. He witnessed Romina’s limited capacity for self-care and her inability to independently participate in diabetes-related activities, including blood glucose testing or insulin administration.
He did not observe any concerning behaviours during his visit but confirmed the presence of repetitive behaviours and sensory needs that would complicate any transition to unfamiliar carers. He also noted that the family is unable to take holidays due to Romina’s difficulty with environmental change.
Recommendations
Dr Thornley supported the continuation of the current basal-bolus insulin regimen, with a suggestion for periodic review by an endocrinologist and a diabetes educator, particularly one experienced with ASD and sensory disorders. He recommended twice-yearly endocrine review, but acknowledged the family’s difficulty accessing timely and consistent public specialist services.
Dr Thornley did not recommend insulin pump therapy, citing Romina’s likely intolerance due to sensory issues. He did recommend reconsideration of CGM use under professional supervision, noting potential benefits in reducing carer burden and enhancing glycaemic safety.
Dr Thornley did not consider additional specialist behavioural support necessary at the time, stating that Rosanne appeared well-versed in managing Romina’s ASD and OCD symptoms. He noted no medical correlation between Romina’s epilepsy and her diabetes.
During his oral evidence, Dr Thornley described Rosanne's management of Romina’s blood sugar as effectively replicating CGM through frequent finger-prick tests, which he noted could be up to 30 times a day. He considered this high frequency to be clinically justified because Romina is non-verbal and cannot communicate the symptoms of high or low blood sugar.
Dr Thornley’s oral evidence was that he was impressed with the clinical outcomes achieved under Rosanne’s care, stating that Romina had not suffered a single severe hypoglycaemic event since her diagnosis six years prior. He attributed this directly to Rosanne’s ‘exceptional diligence’ and skill, considering her HbA1c level of 8.3% to be ‘quite good’ in the context of her complex comorbidities.
When questioned about technological alternatives, Dr Thornley explained that CGM technology has advanced significantly, and that a newer device like an Omnipod insulin pump, which is smaller and has no tubing, could be a viable option to trial in the future. However, he noted that any such trial would be contingent on resolving a significant barrier that had arisen since his report; Romina had recently trialled a CGM and experienced superficial burns at the sensor site. He suggested this would need to be managed with the assistance of a specialist diabetes educator before such technology could be successfully implemented.
Dr Thornley drew a sharp distinction between the physical act of administering insulin and the clinical judgment required to calculate the correct dose. He stated he had no concern about a high-intensity support worker being physically able to administer a pre-calculated insulin dose using an insulin pen, describing the process as ‘quite straightforward’ and easy to learn.
However, he considered the calculation of the correct dose to be a far more complex task requiring nuance learned over time. He stated that Rosanne is ‘quite adept’ at adjusting for food intake and blood sugar levels, but that it is often ‘too complicated to expect a carer with no health background to factor in both carbohydrate intake and the prevailing blood sugar’. When asked how long it would take another carer to acquire Rosanne’s skill, he described the process as ‘variable’ and ‘not so straightforward’, requiring extensive training and oversight. He candidly explained that in his opinion, ‘I don't think any carer, to be honest with you, is going to do as good a job as Rosanne has done’, citing her extensive prior nursing experience and her ability to manage after-hours emergencies as significant factors influencing the positive nature of her ongoing care of Romina.
In summary, Dr Thornley’s evidence supported the conclusion that Romina’s diabetes is complex but well-managed under Rosanne’s care. He confirmed that Romina’s inability to communicate glycaemic symptoms requires exceptional vigilance and continuous supervision. While not recommending immediate changes to her care regime, he identified avenues for future optimisation through specialist review and reconsideration of CGM, subject to sensory tolerability.
Technical Advisory Practice and Innovation Branch evidence
The Agency relied on documents from the Technical Advisory Practice and Innovation Branch (‘TAPIB’), a unit within the Agency. A TAPIB advice is an internal clinical or technical opinion prepared by a TAPIB advisor to assist Agency staff in assessing whether particular supports requested by a participant are ‘reasonable and necessary’ under the NDIS.
TAPIB advices are typically provided by clinicians or technical specialists within the Agency in response to requests for guidance regarding complex or exceptional support proposals. They are often used to evaluate:
(a)medical necessity and appropriateness of supports;
(b)alternative models of care (e.g. delegated care vs. direct clinical provision);
(c)whether exceptional circumstances exist to justify departures from standard NDIS practice, such as the funding of paid informal supports (i.e. family members as paid carers); and
(d)whether assistive technologies or behavioural interventions could reduce dependency or risk.
TAPIB advices are not binding decisions, but serve as an expert internal recommendation to inform decision-makers within the Agency. In this case, the TAPIB advice assessed Romina’s diabetes management, the role of Rosanne as a proposed paid support worker, and alternative support models such as a delegated model supervised by registered nurses. The advice also evaluates the suitability of assistive technology (such as continuous glucose monitors), and whether Rosanne meets the exceptional circumstances criteria required to fund informal supports.
I have taken the TAPIB advices into account, but I do not consider that they warrant significant weight. Those advices do not appear to have been prepared with the same level, or extent, of evidence that is before the Tribunal. Additionally, I consider it more appropriate to place greater weight on the evidence of the various medical practitioners who gave expert evidence in the proceedings as opposed to the TAPIB advices.
Evidence of Dr Anthony Alvaro, Consultant Neurologist
Dr Anthony Alvaro (‘Dr Alvaro’) provided a letter dated 30 September 2020 following his clinical review of Romina, who was accompanied by Rosanne and her carer. His report confirms a longstanding diagnosis of epilepsy, which is managed in the context of Romina’s broader medical and developmental profile, including ASD, intellectual disability, coeliac disease, and Type 1 Diabetes.
Dr Alvaro recorded that Romina experienced her first epileptic seizure at the age of nine. These episodes included collapse and convulsions, sometimes with orolingual trauma. She was seen by a paediatric neurologist at that time and commenced on the anti-epileptic medication Keppra. Although no diagnostic investigations were performed, an increase in her medication dosage resulted in cessation of seizures by the age of thirteen. Rosanne has occasionally observed what may be absence-type seizures or ‘staring episodes’, although these have not been formally investigated.
A further generalised seizure occurred approximately three months prior to the consultation with Dr Alvaro. This episode took place after Romina missed her morning dose of Keppra and experienced disrupted sleep due to overnight blood sugar testing. She was observed to have a generalised convulsion while seated at the dinner table and exhibited postictal drowsiness. Her blood glucose levels at the time were reportedly within the normal range. She was subsequently admitted to Fiona Stanley Hospital by ambulance and underwent blood tests. In response to this episode, her Keppra dosage was increased from 1100 mg to 1250 mg twice daily. Dr Alvaro noted that there had been no further seizures or side effects since this adjustment.
Dr Alvaro conducted a brief examination and found Romina to be pleasant and cooperative, although non-verbal. No neurological abnormalities were identified on physical examination. He attributed the recent seizure to provocation by a missed dose of medication and sleep deprivation, rather than a deterioration in her underlying condition. He advised that the current dosage of Keppra should be maintained, and that the addition of a second anti-epileptic drug may be considered only if unprovoked seizures recur.
Dr Alvaro’s evidence supports a diagnosis of epilepsy that is currently well-managed with medication, contingent on adherence and adequate sleep. Romina’s risk of seizure recurrence appears to be elevated during periods of non-compliance or physical stress, particularly sleep disruption, which is itself linked to the demands of her diabetes management. The neurologist’s findings reinforce the need for consistent and vigilant caregiving, particularly overnight, to manage the interplay between her multiple health conditions.
Dr Alvaro did not give oral evidence.
Evidence of Ms Nicole Blackburn
The Agency relies on the evidence of Ms Nicole Blackburn (‘Ms Blackburn’), a Senior Physiotherapist/Principal Therapist. She did not give oral evidence and was not cross-examined.
Functional capacity and daily care requirements
Ms Blackburn’s assessment detailed Romina’s extensive daily support needs. Romina requires hands-on assistance for all activities of daily living, including personal hygiene, dressing, grooming, toileting, and menstrual care. She cannot manage her medications, finances, meal preparation, household tasks, or transport independently. She is unable to identify or respond to personal safety risks and is vulnerable without constant supervision.
Ms Blackburn notes that while Romina demonstrates physical mobility within the home and is capable of ascending stairs using a handrail, she has no road safety awareness and cannot be left unsupervised in the community. Her emotional regulation is fragile, with environmental stimuli, changes to routine, or minor disruptions potentially triggering meltdowns involving self-injurious behaviours.
Ms Blackburn also opines that Romina’s diabetes management is a central concern. Ms Blackburn confirms that Romina is unable to recognise or communicate hypo- or hyperglycaemia and is wholly dependent on others for monitoring, insulin administration, and dietary management. This care is described as high-intensity, with multiple injections daily and overnight interventions required. Rosanne continues to sleep beside Romina to monitor her glucose levels and intervene, as necessary.
Observations on family and informal supports
Ms Blackburn noted that Rosanne is Romina’s primary carer and provides the majority of her care across a 24-hour period. She reports receiving approximately two to three hours of uninterrupted sleep each night and is experiencing significant carer stress. Romina’s father provides minimal support and has been diagnosed with major depression. Ms Blackburn acknowledges the cultural expectation of maternal caregiving in the family’s Italian background, but expresses concern about the sustainability of the current informal support arrangement.
Romina’s grandmother occasionally assists with insulin administration but is sometimes refused entry by Romina. A small team of external support workers is involved on a part-time basis, although it is noted that Rosanne retains a high level of involvement and oversight.
Recommendations
Ms Blackburn recommended an extensive package of formal supports to address Romina’s needs, including:
(a)35 hours per week for personal care and 2 hours per week for domestic assistance;
(b)12 hours per week for community access;
(c)8 hours per week for skill-building in communication and social interaction using her AAC device;
(d)up to 75 hours per year of therapeutic supports, including speech pathology, occupational therapy, physiotherapy, podiatry, diabetes education, and epilepsy management; and
(e)a level two transport budget and increased funding for consumables and assistive technology.
Ms Blackburn recommended increased support coordination hours to assist the family in managing the complexity of the plan and provider relationships.
Importantly, Ms Blackburn expressed the view that while Romina is highly reliant on Rosanne, she should be supported to gradually accept care from non-family members to reduce carer burden and increase her long-term resilience. She acknowledged, however, that this transition must occur cautiously to avoid distress and escalation in behaviour.
Ms Blackburn concluded that Romina will require high-intensity, 24/7 support indefinitely due to the combination of her disability and health-related conditions. She expressed concerns about the sustainability of the current care arrangement and recommends an urgent plan review to ensure the continuation and expansion of formal supports, with the goal of maintaining Romina safely in her family home.
Evidence in respect of continence needs
Romina’s continence needs are addressed in multiple clinical assessments and supporting reports provided by continence nurses, including a primary report prepared by Ressy Mathew dated 11 May 2023, and subsequent clarifications and recommendations dated

1 March 2024 and 2 April 2024. Collectively, these documents outline Romina’s significant and ongoing bladder and bowel management requirements, driven by behavioural, cognitive, and medical factors.
Bladder and bowel incontinence
Romina experiences both functional and overflow incontinence. She is non-verbal, unable to consistently identify the need to use the toilet, and often refuses to do so for bowel motions. She wears pull-ups day and night for both bladder and bowel management. She is entirely reliant on Rosanne for all continence care, including prompting, cleaning, product changes, and hygiene.
The continence nurse notes that Romina generally uses the toilet for urination when prompted every two hours but often soils her pull-ups due to distraction or behavioural resistance. For bowel movements, she avoids toileting altogether and prefers to void into her pull-ups. She has frequent accidents – between two to five per day – and requires prompt cleaning to prevent skin breakdown, urinary tract infections, and social distress.
Product use and behavioural factors

There was no evidence presented at the hearing that Rosanne was currently receiving a Carer Payment, nor was there evidence regarding her eligibility, which can be means-tested. Indeed, if Rosanne is paid by the NDIS for providing 38 hours of support work to Romina, this earned income could potentially affect her eligibility for, or the rate of, any Carer Payment she might otherwise receive. This potential interaction further underscores that the schemes are designed to address different financial needs – the participant's need for funded supports against the carer's potential need for income support.
For these reasons, I am unable to be satisfied that the support provided by Rosanne, in the form of 38 hours per week of 1:1 high intensity support to Romina, is most appropriately funded through the Social Security regime in the form of a Carer Payment to Rosanne. In the unique and compelling circumstances of the present case, I am satisfied, and find, that the NDIS is the most appropriate system for funding these specific supports for Romina.
Conclusion on Issue 4
The Revised Requested Support is the provision of 38 hours per week of 1:1 high intensity support services directly to Romina, which are necessitated by her profound and complex disabilities. The Carer Payment is an income support payment provided to carers who are unable to engage in substantial workforce participation due to their caring responsibilities; its purpose is to assist with the carer's own living expenses.
Consequently, I am satisfied the Carer Payment system is not a ‘more appropriate’ system of service delivery or funding for the actual 1:1 high intensity support services that Romina requires. The Agency’s contention conflates two distinct concepts: the funding required for a participant's necessary disability supports and the income support that may be available to a carer.
Therefore, I find that the Revised Requested Support is not more appropriately funded or provided through the Carer Payment system or any other general system of service delivery or support services identified and instead find that it is most appropriately funded through the NDIS. I am satisfied that the requirement that the support is not more appropriately funded through other general systems is met.
Issue 5: whether the proposed delegated model of care will potentially breach the Medicines and Poisons Act?
Before dealing with this issue, I consider it necessary to say something about the submission that the Agency was taken by surprise by the contention that it was not lawful for high-intensity support workers to administer variable insulin dosages in Western Australia. As I indicated to counsel for the Agency at the hearing, my view was that the matter had been sufficiently raised by Rosanne, even if she did not make express reference to the Medicines and Poisons Act.
In this regard, I observe that the applicant’s Statement of Facts and Contentions, as well as Rosanne more generally, repeatedly raised during the review application that support workers were not ‘allowed’ or ‘could not’ administer insulin injections. More specifically, during her evidence, Rosanne expressly referred to Insulin’s status as a ‘Schedule 4’ medication and claimed that variable dosages of such a medication could only be determined and administered by a registered nurse.
However, the Agency appears to have considered the position taken by Rosanne to be limited to whether a high-intensity support worker has sufficient training to administer subcutaneous injections but overlooked the aspect of Rosanne’s case about the calculation of dosages not being permitted. In any event, both parties were given leave to file additional written submissions on this point. The Agency’s submissions were received on 10 June 2025 and the applicant’s submissions in response on 11 June 2025.
The Applicant’s submissions
The applicant submits that whilst support workers may lawfully possess insulin under

s 14(4) of the Medicines and Poisons Act, this does not extend to the safe or lawful administration of insulin to a patient with an unstable condition. The administration must be conducted in accordance with prescriber instructions; however, in practice, such instructions cannot anticipate the real-time adjustments required for brittle diabetes.
The Agency’s submissions
The Agency submits that although insulin is classified as a Schedule 4 medicine, this classification does not preclude possession and administration by a high-intensity support worker. The Agency refers to s 14(4)(e) of the Medicines and Poisons Act, which provides a defence to a charge of possessing a Schedule 4 poison if:
(e)the person is a carer of a person referred to in paragraph (d) (the patient) and has possession for the purposes of supplying or administering the poison to the patient in accordance with the instructions of the prescriber;
The Agency refers to the definition of ‘carer’ in s 14(5) as a person who assists in the healthcare of the patient, whether paid or not. The Agency submits that a paid support worker meets this definition and can therefore administer insulin if it is done in accordance with the prescriber’s instructions.
Consideration
The Agency’s submissions do not, with respect, engage with the critical distinction between the authority to possess a medicine and the authority to administer it. While s 14 of the Medicines and Poisons Act provides a defence for a carer possessing a Schedule 4 medicine, it does not, of itself, create a universal authority for any person meeting the definition of a 'carer' to administer that medicine in all circumstances. The authority to administer a poison is dealt with more specifically by other provisions in the Medicines and Poisons Act, notably ss 25 and 27.
It is important to appreciate that two distinct functions arise when it comes to the administration of insulin in Romina’s circumstances: the ‘calculation’ of the dose and the ‘administration’ of the injection. I accept the general proposition, advanced by the Agency, that a high-intensity support worker can be trained to safely administer a subcutaneous injection. However, the legal authority and clinical competence to calculate the amount of insulin to be administered are separate and critical questions. The central difficulty in this case arises from Romina's brittle diabetes, which requires real-time adjustments to dosage that, according to the evidence, cannot be captured in a static set of prescriber's instructions.
'Authorised Health Professionals' and the role of agency under s 27
The Medicines and Poisons Act establishes a framework where the authority to deal with medicines is primarily vested in ‘authorised health professionals’. An ‘authorised health professional’ is a ‘health professional’ who has a ‘professional authority’ to deal with a medicine in a particular way. A ‘health professional’ is defined as a person who is a registered health practitioner, or a member of a class of persons prescribed by the regulations. A high-intensity support worker is not a ‘registered health practitioner’ under the Health Practitioner Regulation National Law (Western Australia) Act 2010 (WA) and is not otherwise prescribed as a ‘health professional’. Therefore, a support worker is not an ‘authorised health professional’ and does not derive any personal authority to administer medicines under s 25 of the Medicines and Poisons Act.
However, this is not the end of the matter. Section 27 of the Medicines and Poisons Act is of direct relevance. It provides that an employee or agent of a health professional is authorised to do anything that the health professional is authorised to do (other than prescribe a medicine). Crucially, when an employee or agent does such an act, it is taken to have also been done by the health professional.
This provision provides a lawful pathway for the delegated model of care proposed by the Agency. Under this model, a registered nurse (who is an ‘authorised health professional’) can act as the principal. The registered nurse would be responsible for the clinical governance, including the complex ‘calculation’ function – that is, determining the correct variable dose of insulin based on Romina's real-time needs. The support worker could then be appointed as the agent of the registered nurse for the limited purpose of performing the physical ‘administration’ of that calculated dose. In this structure, the support worker is not exercising independent clinical judgment; they are acting as the hands of the registered nurse. The legal and clinical responsibility for the decision remains with the registered nurse.
The limits of the 'carer' defence in s 14
Viewed in this light, the Agency’s reliance on s 14(4)(e) is of limited assistance. That section provides a defence against a charge of unlawful possession of a Schedule 4 poison. It does not create a positive right for a carer to administer it. The requirement that administration be ‘in accordance with the instructions of the prescriber’ is important. As established in evidence, the dynamic decision-making required for Romina goes beyond simple compliance with a static instruction. The calculation of the correct dose is a clinical function that, in Romina's circumstances, must be performed by a health professional or by an agent acting lawfully under the direction of one pursuant to s 27.
Conclusion on Issue 5
I have some reservations that the delegated care model, as initially framed, sits somewhat uncomfortably with the Medicines and Poisons Act. However, on balance, I am persuaded that a support worker can lawfully administer insulin to Romina provided the arrangement is properly structured under s 27 of that Act.
The model requires a registered nurse, as an authorised health professional, to act as the principal. The nurse would retain the clinical responsibility for calculating the variable insulin doses. The high-intensity support worker would then act as the nurse’s agent, authorised only to administer the specific dose calculated by the nurse. This ensures that the clinical judgment resides with a qualified professional, while the physical task can be delegated. The funding for 48 hours for a registered nurse to provide this exact support, training, and guidance is therefore not only reasonable and necessary, but a legal prerequisite for the proposed delegated model of care to operate lawfully in Western Australia.
Issue 6: The balance of the supports
I am conscious that the Tribunal’s task in these matters is not to determine which party succeeds, but rather to remake the decision under review and arrive at the correct or preferable decision based on all the evidence before me. This requires me to consider the package of supports that is reasonable and necessary for Romina as a whole, including the additional supports raised by the Agency during these proceedings, which Rosanne had previously rejected.
Approach to the consideration of these supports
In the findings that follow, I have considered each of the remaining supports proposed for inclusion in Romina’s plan. For each support, I have assessed whether I am satisfied that all of the criteria in ss 34(1)(aa)-(f) of the NDIS Act have been met. I have also considered the impact of the Supports Rules and the Transitional Rules in reaching my conclusion on each of the remaining supports. For the sake of brevity, where my reasoning for a particular support relies on findings I have already made in Issues 1 to 5, I will refer to those earlier conclusions rather than repeating them in full.
1:1 high intensity support worker assistance
Having concluded that funding Rosanne to provide 38 hours of care per week is reasonable and necessary, it remains for me to consider what other high intensity support worker assistance is required to create a safe and sustainable plan for Romina. The Agency proposed 18 hours per day, or 126 hours per week, of such support. I consider this to be excessive at this stage, particularly having regard to the conclusions I have reached in relation to the payment of Rosanne for the support that she provides to Romina.
There was no evidence before me about how such a significant number of hours would be structured. Assuming a support worker is engaged for approximately 36-40 hours per week, the Agency’s proposal would likely require a team of at least four, and potentially up to six or more, rotating carers to cover shifts, periods of illness, and leave. Given the evidence of Romina’s extreme distress when dealing with unfamiliar people and changes to her routine, I am satisfied that introducing such a large team at once would be overwhelming for her and counter-productive to her long-term welfare.
Rather, I consider that a gradual and carefully managed increase in external support is warranted. In that regard, I consider that limiting the additional funded hours for 1:1 high intensity support to 72 hours per week is a more cautious and preferable approach. This would allow for the engagement of two primary full-time support workers, with capacity for a third to cover other periods. This provides a more stable and consistent team, which is critical for building the trust and familiarity Romina needs to feel safe.
It should be clear from the findings that I have already made that I have little hesitation in finding that the provision of 1:1 high intensity support is necessary to support Romina’s complex needs arising from her impairments. I am satisfied the criterion in s 34(1)(aa) is met.
I am also satisfied that this level of 1:1 high intensity support meets the remaining criteria for the following reasons:
(a)This support directly assists Romina's plan goals.[45] While it involves external carers, the inclusion of Rosanne as the anchor of the care team provides the stability Romina needs. This stable, blended team is a crucial first step towards building her capacity to accept support from others, which is a key component of her goals related to increasing independence and reducing reliance on her family.
(b)A safe, stable, and sustainable care environment is the essential foundation upon which any future social participation can be built. This support facilitates this by preventing the kind of crisis and carer burnout that would lead to Romina’s complete isolation. It creates the conditions of safety necessary to contemplate any future community access.[46]
(c)While this is a significant cost, it represents value for money when compared to the likely alternative of acute hospitalisation or institutionalisation should the current sole-carer arrangement with Rosanne collapse. It is also substantially less than the 126 hours per week proposed by the Agency. The benefit achieved – a safe, stable, and sustainable care environment that reduces risk to both Romina and Rosanne – is significant and justifies the cost.[47]
(d)I am satisfied that introducing a small, consistent team of highly skilled support workers to work alongside a participant’s primary informal carer is a recognised and effective model of good practice for complex and long-term care. It is beneficial because it mitigates the profound risks associated with sole-carer dependency and provides a more resilient and sustainable care model for the future.[48]
(e)This support appropriately recognises the limits of what can be reasonably expected of Rosanne. It is not reasonable to expect her to provide 24/7 high-intensity care indefinitely with no formal support. This funding provides a formal structure to supplement the extraordinary care she provides.[49]
(f)This is a core disability support, directly related to Romina’s personal care and safety needs. The support is designed to prevent harm to Romina that could arise from carer burnout or an unstable care environment. I am satisfied that the support is a NDIS support and is not otherwise excluded.[50]
[45] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(a).
[46] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(b)
[47] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(c).
[48] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(d).
[49] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(e).
[50] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(f).
Night-time sleep over support (inactive)
The Agency has proposed including funding for an inactive overnight sleepover support. At present, I am not satisfied that this support should be included in the plan in addition to the other supports I have found to be reasonable and necessary. Rosanne provides continuous overnight monitoring and care, a role which will continue as part of the overall support she provides as both Romina’s mother and as a funded carer. In the context of the significant package of supports already approved, which includes funding for Rosanne and 72 hours of external support, adding a separate inactive overnight support:
(a)does not represent value for money relative to the benefits and the alternative support already available, and as such I am not satisfied that s 34(1)(c) is met; and
(b)does not take account of the significant support that it is reasonable to expect Rosanne to continue to provide as Romina’s primary carer and mother, particularly given that her role is now formally recognised and funded in part. In these circumstances, I am not satisfied that s 34(1)(e) is met.
This support can be reconsidered at a future plan review if the circumstances change.
24 hours of nursing care for specialist input and support per year
I am satisfied that this support is reasonable and necessary. This funding provides for approximately 30 minutes of specialist nursing input per week. This is not for direct care, but for essential clinical oversight, consultation, and review of Romina’s complex health needs. I am satisfied this support satisfies each of the criteria in s 34(1) as it is necessary to ensure the care provided to Romina aligns with clinical best practice and addresses needs arising from Romina’s impairments;[51] supports her goal of maintaining health and safety;[52] enhances the stability of her care environment, which I consider is a precondition for social participation;[53] is a high-value preventative measure that represents value for money by preventing costly medical errors;[54] aligns with good practice for complex care;[55] provides a level of formal clinical governance that cannot reasonably be expected of a family member, even one with prior nursing experience;[56] and I am satisfied this is an NDIS Support.[57]
[51] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(aa).
[52] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(a).
[53] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(b).
[54] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(c).
[55] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(d).
[56] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(e).
[57] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(f).
$5,500.20 per year for continence aids
The evidence from the continence nurse assessments establishes Romina’s significant and ongoing need for a high volume of continence products due to her functional and overflow incontinence, which is directly linked to her cognitive and behavioural impairments. I am satisfied this support is reasonable and necessary. It is necessary to manage her impairment-related needs;[58] assists her goals of maintaining health and dignity;[59] is a prerequisite for any social participation;[60] is value for money when compared to the costs of treating infections and skin breakdown;[61] is the standard and effective method for managing such needs;[62] covers costs for disability-specific needs that are not reasonable to expect a family to bear;[63] and I am satisfied this is an NDIS Support.[64]
[58] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(aa).
[59] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(a).
[60] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(b).
[61] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(c).
[62] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(d).
[63] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(e).
[64] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(f).
$1,500.00 for communicative and cognitive equipment

The evidence from Ms Gorman and Ms Pates clearly outlines Romina’s profound communication difficulties and her positive response to written and structured visual aids. This funding is for low-cost assistive technology, such as an AAC device and sensory tools, to support her communication and help her manage her environment and anxiety. I am satisfied this support is reasonable and necessary. It is necessary to address her non-verbal status and cognitive impairments;[65] directly assists her goals of building communication skills and independence;[66] provides the foundational tools for social participation;[67] represents value for money by reducing challenging behaviours that arise from an inability to communicate;[68] is an evidence-based and effective good practice intervention;[69] provides for specialised technology that a family cannot be expected to fund;[70] and is a core NDIS support.[71]
48 hours per year for a registered nurse to provide support and guidance to support workers under a delegated model of care
[65]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(aa).
[66]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(a).
[67]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(b).
[68]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(c).
[69]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(d).
[70]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(e).
[71]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(f).
I have considered whether, in view of my other conclusion, the quantum of hours that was proposed by the Agency should be reduced. However, given the support amounts to less than 1 hour per week, I am not satisfied that the quantum should be reduced at present.
I consider the support of a registered nurse is essential for the 72 hours of high-intensity support, that I have concluded ought to be included in Romina’s SOPS, to be implemented safely and effectively. It provides funding for a registered nurse to train, supervise, and provide guidance to the support workers who will be managing Romina’s complex health tasks. Subject to my findings on Issue 5 regarding the lawfulness of this model in Western Australia, I am satisfied this support is reasonable and necessary. It is necessary to ensure the safe delivery of care for Romina's impairments;[72] assists the goal of building a sustainable and competent care team;[73] is a prerequisite for that team to safely facilitate any community access;[74] is value for money as it enables support workers to perform tasks that would otherwise require more expensive, continuous nursing care[75]; is an effective, good practice model for managing complex health needs in the community;[76] provides a formal clinical supervision structure that is not reasonable to expect a family member to provide;[77] and I am satisfied this is an NDIS Support.[78]
[72]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(aa).
[73]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(a).
[74]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(b).
[75]          National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(c).
[76] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(d).
[77] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(e).
[78] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(f).
I am satisfied that 48 hours per year for a registered nurse to provide support and guidance under a delegated model of care ought to be included in Romina’s support.
Funding for behavioural support, being 45 hours of specialist behavioural intervention, and 20 hours of training in behaviour management strategies
Romina’s severe anxiety, OCD, and behavioural dysregulation are well-documented and present a significant barrier to her quality of life and the sustainability of her care. This support will fund a specialist to develop a positive behaviour support plan and train her carers in its implementation. I am satisfied this support is reasonable and necessary. It is necessary to address her complex behavioural needs arising from her impairments;[79] is essential for achieving goals related to independence and building her tolerance for new people and activities;[80] is critical for making any form of social participation more feasible;[81] is value for money compared to the significant costs of crisis management resulting from unmanaged behaviours;[82] is an evidence-based, good practice intervention;[83] requires specialist expertise that cannot reasonably be expected of a family;[84] and I am satisfied this is an NDIS Support.[85]
[79] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(aa).
[80] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(a).
[81] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(b).
[82] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(c).
[83] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(d).
[84] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(e).
[85] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(f).
I am satisfied that funding for behavioural support and management should be included in Romina’s SOPS as proposed by the Respondent.
50 hours of Specialist Support Coordination to replace the current 24 hours for Support Coordination, Level 2
The history of this matter demonstrates profound and persistent difficulties in sourcing appropriate providers and navigating the service landscape. Romina’s case is exceptionally complex, with high-stakes medical and behavioural needs that have resulted in market failure. I am satisfied that an upgrade to Specialist Support Coordination is reasonable and necessary. The complexity of Romina’s needs creates exceptional barriers justifying this higher level of support.[86] It is essential for achieving the goal of building a stable care team where other attempts have failed[87] and is the mechanism through which future social participation can be planned.[88] It represents value for money by increasing the likelihood of successfully establishing a sustainable plan and avoiding the high costs of plan failure.[89] For a case with this level of complexity and risk, it is the effective, good practice model.[90] I am satisfied that it is not reasonable to expect Rosanne to resolve the coordination challenges present here.[91] I am satisfied this is an NDIS Support.[92]
[86] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(aa).
[87] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(a).
[88] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(b).
[89] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(c).
[90] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(d).
[91] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(e).
[92] National Disability Insurance Scheme Act 2013 (Cth), s 34(1)(f).
I am satisfied that 50 hours of Specialist Support coordination should be included in Romina’s SOPS.
Duration of the plan and observations on the Romina’s future care
Counsel for the Agency submitted that the plan should be reviewed in 6-months’ time.[93] Rosanne submitted the plan should be reviewed after at least 12 months.[94]
[93] See transcript of the hearing on 23 May 2025, p 54.
[94] See transcript of the hearing on 23 May 2025, p 65.
Before determining the duration of the plan before a review, I consider it necessary to make some observations about Romina’s long-term care arrangements. The decision to fund Rosanne to provide a component of Romina’s care is a pragmatic one, based on the unique and exceptional circumstances that currently exist. While I have found that funding Rosanne to provide this component of care is reasonable and necessary in the present exceptional circumstances, this arrangement must be viewed as transitional, not permanent.
Throughout the hearing, Rosanne was reluctant to engage with the question of what would happen if she were to become unavailable to care for Romina, whether through ill health, accident, or eventually, death. While it is human nature to avoid contemplating such possibilities, it is a critical and unavoidable aspect of ensuring Romina’s lifelong wellbeing. The day will inevitably come when Rosanne cannot be Romina's primary carer. When that day arrives, steps need to be taken now to ensure the transition is not a catastrophic event for Romina, but a managed process for which the foundations have been carefully laid.
That preparation should begin now. The purpose of this plan, and specifically the decision to fund both Rosanne and a team of external support workers, is intended to create a stable environment in which Romina can be slowly and carefully supported to accept care from others.
To be clear, the package of supports I have determined to be reasonable and necessary is intended to work synergistically to achieve this transition. The funding for Rosanne’s care is intended to provide the foundational stability and safety that is the essential precondition for any change to be successful. It is from this stable base that the 72 hours of external support can be gradually and safely introduced.
The Specialist Support Coordinator will be important in this process as they will be tasked with sourcing a small and consistent team of appropriately skilled high-intensity support workers. Concurrently, the funding for specialist behavioural intervention is to be used to develop and implement proactive strategies to assist Romina in managing her anxiety and tolerating the introduction of these new carers into her life. I expect all parties, led by the Specialist Support Coordinator, to work collaboratively to execute this clear pathway towards diversifying Romina’s care.
In particular, I expect Rosanne, in her dual capacity as Romina’s mother and as a now-funded support provider, to use the next two years to make significant and demonstrable progress in reintroducing other support workers into Romina’s life. This role is part of the support that she will have to provide.
I consider a period of 6 months before any review is far too short to enable real and demonstrable progress to be made towards re-introducing other support workers into Romina’s life.
I will require that the SOPS be reviewed in two years. I consider that such a period is sufficient to ensure that Romina is properly cared for in the short term and that measurable progress can be made towards the re-integration of other support workers into Romina’s life whilst also enabling sufficient time for carers to potentially change and Romina’s responses to changes in her care to be documented by third parties, including the support workers involved in Romina’s behavioural support.
Rosanne should be under no illusion that at that time, I would expect that the CEO, in reassessing the plan, will give close consideration to the progress (if any) that has been made in diversifying Romina’s care team and reducing her sole reliance on Rosanne. Should this matter ever return to the Tribunal, this is an issue to which I would expect the Tribunal will undoubtedly give significant weight. In my view, the long-term goal must be to build a resilient and sustainable support structure around Romina that can endure long after any single individual is able to provide care.
DECISION
For the above reasons, the Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with an order that the following additional reasonable and necessary supports are to be included and funded under the National Disability Insurance Scheme:
(a)the provision of 1:1 care by Rosanne Scaramella to be funded in an amount of $2,360.94 per week for the duration of the plan;
(b)1:1 high intensity support worker assistance for 72 hours per week;
(c)4 hours of nursing care for specialist input and support;
(d)$5,500.20 per year for continence aids;
(e)$1,500.00 for communicative and cognitive equipment;
(f)48 hours for a registered nurse to provide support and guidance to support workers under a delegated model of care;
(g)Funding for behavioural support, being 45 hours of specialist behavioural intervention, and 20 hours of training in behaviour management strategies; and
(h)50 hours of Specialist Support Coordination to replace the current 24 hours for Support Coordination, Level 2.

I certify that the preceding 335 (three hundred and thirty-five) paragraphs are a true copy of the reasons for the decision herein of General Member F Robertson

...................[SGD].....................................................
Associate
Dated: 1 July 2025

336.    Dates of hearing:

337.    16-17 April; 23 May 2025

338.    Date final submissions received:

339.    11 June 2025

340.    The Applicant:

341.    Ms R Scaramella, as plan nominee for the applicant

342.    Counsel for the Respondent:

343.    Ms J Flynn of counsel

344.    Solicitors for the Respondent:

345.    Ms J Thomson, Moray & Agnew

336. Dates of hearing:	337. 16-17 April; 23 May 2025
338. Date final submissions received:	339. 11 June 2025
340. The Applicant:	341. Ms R Scaramella, as plan nominee for the applicant
342. Counsel for the Respondent:	343. Ms J Flynn of counsel
344. Solicitors for the Respondent:	345. Ms J Thomson, Moray & Agnew