SSYL and The CEO, National Disability Insurance Agency (NDIS)

[2025] ARTA 388

SSYL and The CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 388 (16 April 2025)

Applicant/s:  SSYL

Respondent:  The CEO, National Disability Insurance Agency

Tribunal Number:                2022/6615

Tribunal:General Member N Purcell

Place:Sydney

Date:16 April 2025

Decision:The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) remits the decision under review for reconsideration in accordance with the following directions:

The existing 21 days of Short Term Accommodation (STA) be amended in the Applicant’s Statement of Participant Supports (SOPS) to include 15 days at the weekday, 3 days at the Saturday rate and 3 days at the Sunday rate (including adjustments for public holidays);1.   

Behaviour support plan and behaviour support interventions be removed from the Applicant’s SOPS;2.   

The ‘45 hours - Other professional’ supports be replaced in the Applicant’s SOPS with a stated support of ‘45 hours - Occupational Therapy’;3.   

Current funding for support worker assistance be replaced in the Applicant’s SOPS at the standard rate as follows:4.   

First 6 months (including adjustments for public holidays):a.   

9 hours per day (Monday to Friday)i.   

5 hours per day (Saturday and Sundays)ii.   

Second 6 months (including adjustments for public holidays):b.   

6 hours per day (Monday to Friday)i.   

4 hours per day (Saturday and Sundays)ii.   

The new plan includes a requirement that the Applicant’s provider of meal delivery service satisfies the criterial in the Transitional Rules (Schedule 1, clause 1, Item 23) such that the food and ingredient component can be separately identified from the meal preparation and delivery component;5.   

All other reasonable and necessary supports in the existing statement of participant supports, excluding any one-off assistive technology already funded, shall be replicated for a period of 12 months until the reassessment date.6.   

The management of funding for all other reasonable and necessary supports under the Applicant’s plan is to remain the same as the current plan.7.   

The date by which the Respondent will review the Applicant’s plan is 12 months after the day on which the reasonable and necessary supports are included in the Applicant’s statement of participant supports.8.   

....................[SGD]....................................................

General Member N Purcell

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – transitional supports rules – Functional Neurological Disorder – Autism Spectrum Disorder – Complex Post Traumatic Stress Disorder – request for increased support worker assistance – behaviours of concern – question of family violence – Rule 5.1 – reliance and dependency – loss of independence.

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)

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 (Supports for Participants) Rules 2013 (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.

CASES

Beezley v Repatriation Commission [2015] FCAFC 165

Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
McGarrigle and National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
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] AATA 179; (1979) 2 ALD 634

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

SECONDARY MATERIALS

Operational Guidelines – Reasonable and Necessary supports, 22 September 2024.

Statement of Reasons

INTRODUCTION

1. The Applicant is a 34 year old man who became a NDIS participant in 2021 on the basis that he met the access criteria under section 21 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) in relation to impairments attributable to Autism Spectrum Disorder (ASD) Level 2, Complex Post Traumatic Stress Disorder (C-PTSD) and Functional Neurological Disorder (FND).

2. The Applicant was born in south-east Asia and migrated with his family to Australia when he was about 12. He has travelled back and forth between Australia and his country of origin over the years and reports experiencing significant childhood trauma. He met his wife in 2017 through a church and they married in 2020 before settling in a regional Victorian town. The Applicant is currently not employed but previously engaged in volunteer work with a major international fashion brand over a 7-year period while living in Melbourne.

3. His application for review focused on requests to increase support worker assistance from 9 to 12 hours per day at the higher intensity rate and increased hours of psychology and behaviour support.

   DECISIONS UNDER REVIEW

4. On 17 March 2022, a delegate of the Chief Executive Officer (CEO) of the Respondent approved a statement of participant supports under section 33(2) of the NDIS Act.[1] On 30 May 2022, the Applicant requested an internal review of the decision pursuant to section 100(2) of the NDIS Act.[2] On the 27 July 2022, the delegate made a decision to vary the statement of participant supports (reviewable decision).[3] On 12 August 2022, the Applicant filed an application seeking external review by the Administrative Appeals Tribunal (AAT) pursuant to section 100(6) of the NDIS Act.

   [1] T14 of JHB.

   [2] T10 of JHB.

   [3] T2 of JHB.

5. On 8 March 2024, the AAT remitted the matter to the Respondent for reconsideration under section 42D of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Respondent subsequently approved a new statement of participant supports for the period 18 March 2024 – 18 March 2025 (Current Plan). By virtue of section 103(2)(e) of the NDIS Act, the decision to approve the statement of participant supports in the current plan is subject to the Tribunal’s review.

6. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, SSYL’s application was automatically transferred to the ART.[4]

   [4] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).

7. The Respondent contends the following supports are reasonable and necessary, as reflected in the Applicant’s current statement of participant supports:

   Current supports in Applicant’s plan

   (a)9 hours per weekday of support worker assistance (comprising 2 hours for self-care activities and 5 hours for community access);

   (b)5 hours each Saturday and Sunday with community access (comprising 2 hours for self-care and 3 hours for community access);

   (c)21 days of short-term accommodation / respite;

   (d)$7,122.15 per year of transport supports;

   (e)$3, 675 per year of meal preparation and delivery (comprising $15 per meal x 5 meals per week x 49 weeks);

   (f)64 hours of Speech Therapy;

   (g)45 hours of Occupational Therapy (OT) (referred to as ‘other professional’);

   (h)50 hours of Physiotherapy;

   (i)50 hours of Psychology;

   (j)12 hours of Exercise Physiology;

   (k)20 hours support worker assistance per year for ‘shadow shifts’ / training of new support workers;

   (l)Level 1 Positive Behaviour Support package – 65 hours per year, comprising:

   (i)45 hours of Specialist Behavioural Intervention Supports; and

   (ii)20 hours to develop Behaviour Management including training and behaviour management strategies. [5]

   [5][5] A1 of JHB, p9.

   Issues in dispute

8. The issue before the Tribunal is whether the Applicant satisfies the criteria of the National Disability Insurance Scheme (‘the NDIS’ or ‘the scheme’) in accordance with sections 33 and 34 of the NDIS Act in relation to the following requested supports:

   (a)12 hours per day of funding for 1:1 support worker assistance (Monday to Friday including adjustments for public holidays);

   (b)6 hours per day of funding for 1:1 support worker assistance (Saturday and Sunday including adjustments for public holidays);

   (c)Support worker assistance funded at the higher intensity rate;

   (d)Positive Behaviour Support – 150 hours per year (including that the funding be self-managed);

   (e)Psychologist – 104 hours per year; and

   (f)The existing 21 days of STA be changed to include 15 days at the weekday rate, 3 days at the Saturday rate and 3 days at the Sunday rate.

9. At hearing, the Respondent acknowledged there was an administrative error with respect to how STA was included in the Applicant’s statement of participant supports and conceded that the 21 days of STA should have included 6 days at weekend rates. The Tribunal agrees this was an appropriate concession and has made orders allowing for weekend rates and public holiday rates as necessary.

10. However, the Respondent contends that the balance of the requested supports are not reasonable and necessary pursuant to the legislative framework.

    The hearing

11. The Applicant was represented by his wife at hearing. He had previously received legal advice and representation from multiple lawyers at Villamanta Disability Rights Legal Service Inc during 2023. Victoria Legal Aid took over carriage of the matter in November 2023 and ceased to act on 29 October 2024.  The Respondent was represented by Ms Julie Buxton of Counsel and instructed by Maddocks lawyers.

12. The hearing was conducted by video over 3 days. The following witnesses gave oral evidence at the hearing:

    (a)the Applicant

    (b)the Applicant’s wife

    (c)the Applicant’s Behaviour Support Practitioner (BSP), Ms Teresa Robertson

    (d)the Applicant’s Occupational Therapist (OT), Dr Katherine Gill

    (e)Independent OT, Ms Alicja Ploszaj.

13. The Applicant’s wife was not permitted to listen to the Applicant’s evidence because she was also giving oral evidence on his behalf.

14. In arriving at its decision, the Tribunal has considered all the written evidence provided in the joint hearing bundle (admitted and marked ‘JHB’) and the oral evidence given at the hearing. The following documents were also admitted into evidence:

    ·CV of Ms Alicja Ploszaj, OT – E1

    ·Respondent’s ‘Clarification of matters sought by the Tribunal’, dated 13 March 2025 – E2

    ·Behaviour Support and Restrictive Practices – NDIS Commission, fact sheet – E3

    ·NDIS Pricing Arrangements and Price Limits 2024-25 Version 1:3 (1 October 2024) – E4.

    ·Applicant’s closing written submissions – E5

    ·Respondent’s closing written submissions – E6

    ·Copies of 2 passports from the Applicant’s country of origin (marked E7 and E8).

15. The Tribunal will refer to the evidence that is directly relevant to the determination of this matter, including an assessment of the weight that should be given to the evidence.

16. The parties were permitted 2 weeks to file written closing submissions, with the Applicant reminded that submissions were an opportunity to address the Tribunal on evidence or issues raised during the hearing in support of the requested supports and any legal argument. The Tribunal places limited weight on new evidence introduced in the Applicant’s submissions as this was not tested during the hearing.

    Role of the Tribunal

17. The Tribunal’s role is to make the correct or preferable decision based on the material before it.[6] In reviewing the decision:

    [6] Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J).

    (i)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[7] and

    [7] See Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

    (ii)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[8]

    [8] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].

18. The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.

    RELEVANT LAW

19. The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.

20. A participant’s plan must include a statement of participant supports, approved in accordance with section 33 of the NDIS Act, and any rules made under the NDIS Act.

21. The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions. The Act introduced a new section 10 regarding a definition of NDIS support and amended section 34(1)(f). These changes apply to the Applicant’s SOPS and must be considered by the Tribunal.[9]

    [9] Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement.

22. Subsection 34(1) of the NDIS Act now relevantly states:

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

    (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.

    (2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

23. The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[10] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[11]

    [10] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [202].

    [11] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

24. The term ‘reasonable and necessary support’ is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’) Mortimer J as she then was, made the following observations at [91] (prior to the recent amendments):

    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 s 34(1)(a) and (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”.

25. The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’) considered 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.[12]

    [12] WRMF at [149]-[151].

26. Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Relevant rules in the Applicant’s case include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’).

27. Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary including whether they represent value for money, are effective and beneficial having regard to good practice, take account of what is reasonable to expect families to provide and are most appropriately funded by the NDIS, rather than through other service systems.

28. Relevantly in this case, Rule 3.1 regarding value for money (section 34(1)(c)) states:

    3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

    (a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

    (b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

    (c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

    …

    (f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).[13]

    [13] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).

1. Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:

   3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

   (a) published and refereed literature and any consensus of expert opinion;

   (b) the lived experience of the participant or their carers; or

   (c) anything the Agency has learnt through delivery of the NDIS.

   3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

2. Rule 3.4 outlines the matters to be considered when assessing what is reasonable to expect families, carers, informal networks and the community to provide under section 34(1)(e).

   3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

   …

   (b) for other participants:

   (i) the extent of any risks to the wellbeing of the participant arising from the participant’s reliance on the support of family members, carers, informal networks and the community; and

   (ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

   (A) the age and capacity of the participant’s family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and

   (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and

   (C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and

   (iii) the extent to which informal supports contribute to or reduce a participant’s level of independence and other outcomes;

   (c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

3. Part 5 contains general criteria regarding supports and supports that will not be funded. Rules 5.1 and 5.2 provide:

   5.1 A support will not be provided or funded under the NDIS if:

   (a) it is likely to cause harm to the participant or pose a risk to others; or

   (b) it is not related to the participant’s disability; or

   (c) it duplicates other supports delivered under alternative funding through the NDIS; or

   (d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

   …

4. The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Supports Rules’) introduce several key changes. Schedule 2 of the Transitional Supports Rules stipulate supports that are not considered NDIS supports.

5. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[14] The Operational Guideline - Reasonable and Necessary Supports (22 September 2024) states that the NDIS principles set out in law indicate that reasonable and necessary supports should:

   -    support you to pursue your goals and maximise your independence

   -    support you to live independently and to be included in the community as a fully participating citizen

   -    develop and support your capacity to do things that help you participate in the community and in employment.[15]

   EVIDENCE

   [14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

   [15] Operational Guideline - Reasonable and Necessary Supports (22 September 2024), p17.

   Background

6. A significant number of reports were filed by the Applicant as part of these proceedings. While many of them were reasonably dated, some provided useful contextual and background information relevant to this application.

7. A 2023 behaviour needs assessment reported:

   From the age of 12, [the Applicant] reports that he was sent to Australia to live with his older siblings in which he lived a very isolated life without supports. While his siblings were studying and living their lives, [the Applicant] reports that he was left to care for himself, which included managing school, managing daily activities, and managing emotional wellbeing. All areas of [the Applicant’s] life suffered due to his disabilities and [the Applicant’s] inability to communicate meaningfully, and self-advocate for others to care for his own basic needs. [The Applicant’s] sister subjected him to a severely rationed and restricted diet of chicken nuggets and jam sandwiches.[16]

   [16] C29 of JHB, p347.

8. In August 2020, a consultant psychiatrist wrote:

   [The Applicant] moved to Australia when he was 10-11 years old and was living with his sister. He had issues with his sister too, and that resulted in an increase in his anxiety symptoms. However, he completed school and did a course in Food Technology and he was working for some time. Five years ago, he had a major fight with his brother which resulted in a major worsening of symptoms. He developed right-sided weakness and also have some difficulty in expressing his speech… I understand that most of the tests including the MRI scan and the neurologist review were normal.[17]

   [17] C6 of JHB, p218.

9. An undated carer statement by the Applicant’s wife said:

   I had known him for two and a half years before we married… During my first month of marriage in 2020, I realised I had to, for mine and [the Applicant’s] sake, get him help. [The Applicant] is physically depended (sic) on me for everything with a similar intensity to a five-year old on their parent… [The Applicant’s family] treat the Applicant as if he is an embarrassment rather than someone who needs support from them. So, they never allowed him to get extra help from the community…[18]

   [18] T3 of JHB, p78.

10. In March 2022, a Neuropsychologist reported that the Applicant’s answers on the WAIS-IV placed his overall Intelligence Quotient (IQ) at 96, or in the average range.

    His reading of single words and spelling of single words, lay within the Average range and his written maths lay in the High Average range. These basic academic abilities were above secondary school levels. He scored in the Low Average range, however, when required to answer verbally based arithmetic questions (without pen or paper). Fine motor control was below age expectation in pencil and paper tasks. His writing was large and untidy but legible.

    …

    Within his intellectual profile, there was a relative weakness in his verbal Working Memory, which is the ability to hold information in immediate memory to perform operations upon it.

    …

    [The Applicant’s] speed of processing was generally in the Average to High Average range until he was required to follow two or more processes at the same time.[19] (Tribunal’s emphasis)

    [19] C14 of JHB, p257.

11. In June 2022, the Applicant’s OT at the time wrote:

    Seven years ago, [the Applicant] was working as a volunteer personal assistant with the [major international fashion brand] International Fashion Shows which were held all over the world. In this capacity, he enjoyed and was involved in photographic styling, although he had previously trained in Food Technology.[20]

    [20] T11 of JHB, p113.

12. Having reviewed the evidence, the Tribunal wishes to acknowledge that the Applicant clearly experienced a complicated childhood characterised by parental neglect, inappropriate familial discipline, a lack of appropriate disability supports, and cross-cultural/language challenges associated with his migration to Australia. These experiences clearly exacerbated the isolation and loneliness that the Applicant felt growing up, particularly as a child whose ASD was not recognised, and have contributed to the impairments associated with his diagnosis of C-PTSD in adulthood.

    The Applicant

13. At the commencement of the hearing, the Applicant indicated he was anxious whether he would understand the proceedings and whether the Tribunal would understand him. The Tribunal asked the Applicant to listen directly to the Tribunal and to indicate if there was something he did not understand rather than using his support worker to ‘translate’ or provide further explanation. A support worker, ‘Ella’ sat closely beside the Applicant for the duration of this part of the hearing.[21] She was observed to provide unusual levels of physical comfort and reassurance to the Applicant during the hearing, such as patting him on the back repeatedly. This level of reassurance was noticeably absent when another support worker ‘David’ was providing support; with the Applicant still able to engage appropriately.

    [21] Evidence from Ella was contained in C44 and C50 of the JHB.

14. The Applicant was observed to engage meaningfully in the first 40 minutes of the hearing which included introductions, the tendering of the hearing bundle, an explanation of the hearing process and a discussion about the order of witnesses. The Applicant was also observed to clearly express and advocate for himself, raising issues about trauma informed practice, his right to understand the process and his preference for written closing submissions.

15. As part of his oral evidence, the Applicant told the Tribunal that after first arriving in Melbourne he went to an English language school for several months before attending a local high school. He indicated that the school misunderstood his autism and disability, assuming his difficulties were more directly related to using English as a second language and his parents often being away overseas. The Applicant explained that he didn’t get the support he needed, particularly in years 10 to 12. He told the Tribunal he was living with his family before he moved in with his wife in 2020 but emphasised that “doesn’t mean that my family is supportive”.[22] During the period prior to his marriage, the Applicant indicated that his parents were often overseas although his sister was living in the same house in Melbourne.[23]

    [22] Applicant’s oral evidence.

    [23] Applicant’s oral evidence.

16. The Applicant was unable to recall the last time he had travelled to his country of origin but acknowledged he had taken his wife there since getting married in 2020. Most recently, they went to the capital city and then travelled to his hometown to sort out some legal issues and obtain some documents. He described his English as better than his original first language, which he associates with traumatic family experiences. The Applicant also travelled overseas to another Asian country for his honeymoon but declined to say which one.[24]

    [24] Applicant’s oral evidence.

17. The Applicant said, “being disabled is not a choice for me” and “people think you are a complete idiot”. He explained that people seem to assume he can do more things “but like I just can’t”. The Applicant referred to Vineland - 3 assessment results (discussed further below) which suggest he is “only two years” old and claimed it was unfair to expect a baby to be independent and go to work.[25]

    [25] Applicant’s oral evidence.

18. The Tribunal asked the Applicant about his previous volunteer work with [major international fashion brand]. The Applicant explained that the work arrangement resulted from a Year 10 work experience program. A career counsellor supported him to apply for various positions. He applied to a small modelling agency in Melbourne which was moving their content from books/catalogues over to the online/social media space. The Applicant emphasised that he received a lot of support from his boss and worked part time over the summer. That experience then led to an internship and part-time volunteer work at [major international fashion brand] which lasted several years. The Applicant’s boss at [major international fashion brand] was also very supportive and she helped him learn and practice work tasks, in his view, much like a support worker. The Applicant explained that his boss didn’t like to call people, so he would make phone calls for her instead.

    But there is a specific instruction how to call people, what to do, how, what to do and this and that, it’s like an almost like an acting script. So when this happened A, B, but like I watched her how to doing it before I did it a couple of times. So like I think it’s almost like become concrete before I actually do it.[26]

    [26] Applicant’s oral evidence.

19. He explained the role required him to do “hot desking” and share the office with other people. The Applicant acknowledged that he was able to learn the script through practice but pointed to the need for planning ahead of the call. The Applicant also gave evidence that he travelled to Europe as part his volunteer work but did not say which country.

    But with [major international fashion brand] everything is like… already planned ahead, like it’s everything being explained to you like 10 times. Maybe like this is what you’re going to do… this is where you will stay, this is the map, this is where you are going to eat… like explain to you over and over again. But the thing in life, that’s not happening, you have to do your own research… But I’m thinking if I don’t get that help, then it’s impossible. Like it’s almost like you sending a baby to go to like Europe.[27]

    [27] Applicant’s oral evidence.

20. On the final day of the hearing, the Tribunal afforded the Applicant a further opportunity to explain exactly where he went overseas with [major international fashion brand], noting that he had also appeared reticent to explain where he went on his honeymoon. The Applicant confirmed he travelled to France for Fashion Week on two separate occasions for between 1 to 2 weeks each time and had shared a hotel room with a colleague while away.[28] This issue will be discussed further below.

    [28] Applicant’s oral evidence.

21. The Applicant gave evidence that his psychologist has been helpful, and he had started to learn how to regulate his emotions which he practiced with his support workers. He also explained that he had done pre-marriage counselling prior to getting married in a local church. The pastor was apparently concerned the Applicant’s PTSD would affect his marriage and advised him to get professional help.[29]

    [29] Applicant’s oral evidence.

22. The Applicant said he needs someone to help him drive, but later acknowledged that he had driven in the past month to a suburb located about 15 km away from his home. He indicated he would only drive to places he knows well, relying on his muscle memory rather than google maps. His told the Tribunal he had recently completed a driving test and a Driving OT had cleared him to drive but advised him against driving if he was tired or had a FND flare up. On occasion, when concerned about his capacity to drive, the Applicant has pulled over, parked the car in a safe place and called his wife to pick him up or caught a taxi home. He had previously driven at night along a freeway and received a fine from the police because he was driving in the overtaking lane, rather than sticking to the left lane.[30]

    [30] Applicant’s oral evidence. The Applicant’s support worker helped to clarify this point.

23. The Applicant said he will often walk into things in the home, such as chairs, tables, and walls because he’s “seeing it, not processing it”. He explained that his support workers will tell him to move away from objects but indicated he still hits his groin a lot of the time.[31] The Tribunal observes there was no medical reports filed recording any injury from falls or walking into objects.

    [31] Applicant’s oral evidence.

24. The support worker Ella clarified for the Tribunal during the Applicant’s evidence that he will make his own breakfast in the morning “but he’s only able to do that if we’ve done all the preparation for that and ensure that it’s in the exact way that’s planned for him… everything has to be sorted by other people before that happens”. The Applicant explained that he needs someone to buy the cereal for him and remind him to get the milk. When asked why he couldn’t remember to get the milk out of the fridge himself, he replied “sometimes… your muscle memory just can’t do it”.[32]

    [32] Applicant’s oral evidence.

25. The Applicant gave evidence that he uses his mobile phone a lot and indicated he prefers calling because “you could always ask the question on the spot” whereas texting and emailing is more difficult “to understand the tone”. He programmed his phone alarm to go off each morning at 7am. He uses 3 white boards for planning and reminder purposes. He also uses a note pad for preparing a script with his support worker prior to making phone calls, for example, to a tradesperson.[33]

    [33] Applicant’s oral evidence.

26. Towards the end of the hearing, the Tribunal asked whether he had been at trouble at work or in the community due to aggressive or abusive behaviour. The Applicant did not give any oral or documentary evidence to suggest long-term or significant behaviours of concern prior to his marriage. It was suggested to the Applicant that it was unlikely [major international fashion brand] would retain him as a part-time volunteer for 7 years if he was verbally abusive to his boss, colleagues, or clients.

27. On the final day of the hearing, the Applicant confirmed that whilst growing up in his country of origin, a maid performed cooking and domestic tasks around the family home, as well as doing the grocery shopping. He clarified that he had learnt to wash up and do cooking at school. He also indicated that an OT had recommended gloves when washing up, but he was unsure that he could stand for more than a couple of minutes. When it was suggested to him that he could sit on a perching stool to do the dishes he replied “Yeah, well, if they’re too tall or too.. this it’s not possible”. The Tribunal is of the view that the Applicant’s response suggests he may not want to do dishes rather than being unable to do dishes. The Applicant’s wife confirmed that he has a perching stool which he uses for lots of things.

28. The Tribunal observed that the Applicant was able to answer questions from the Tribunal and Counsel without any script or advance notice of the specific questions. He provided relevant information to the questions asked of him, often elaborating on his initial response in an appropriate manner. Occasionally he needed time to consider his response or self-regulate which he was observed to do reasonably effectively. For the most part, the Tribunal considers the Applicant to be an honest witness who was forthcoming in his evidence. However, on several occasions the Applicant declined to answer certain questions which was observed to be self-serving. It also suggests the Applicant has some ability to ‘think on his feet’. The following exchange took place:

    Tribunal:         And where was the office for [major international fashion brand]?

    Applicant:       St Kilda

    Tribunal:         How did you get from your home to the office?

    Applicant:       In the city, yeah.

    Tribunal:         So how did you, how did you get from home to the office?

    Applicant:       [long pause] Public transport. But like it’s, most of the time driving.

    Tribunal:         How long? How long did the drive normally take?

    Applicant:       [long pause] Need a break.

29. The morning session concluded after almost 3 hours duration, with the Applicant actively engaged throughout, including giving evidence for over 1.5 hours.

1. The Tribunal places significant weight on the Applicant’s evidence, particularly with respect to understanding his functional capacity prior to his marriage and comparatively high levels of independence with respect to self-care, travel and part-time volunteer work. He was clearly living a life that had purpose – particularly when working part-time and in the period when he was dating his now-wife. The Applicant’s wife later gave evidence that he was also regularly returning to his country of origin during the period they were getting to know each other.

2. It is not in dispute that the Applicant required some support at that time (which he was not receiving) and continues to require some support. However, having heard this evidence, it became clear to the Tribunal that a key question was what would be the right type and amount of support to ameliorate the Applicant’s disability-related challenges, whilst also building his functional capacity and helping him to maintain (or regain) much of his previous independence.  The Applicant’s evidence was suggestive of someone who has tremendous potential to return to part-time volunteer / paid work or vocational training if he engages with the right support.

   Key observations

3. The Tribunal observes the following in relation to the Applicant’s evidence:

   (a)The Applicant worked in a part-time volunteer role with the same company for about 7 years until approximately 2015. The Applicant worked in a team environment at an office in St Kilda.

   (b)The Applicant drove himself to work and occasionally took public transport while living in Melbourne. He also drove significant distances across Melbourne to visit his now-wife. He continues to drive independently in the regional town where he now resides.

   (c)The Applicant did not receive any formal assistance prior to becoming a NDIS participant and his family were not supportive, with his parents often overseas.

   (d)In his country of origin, the Applicant grew up in an environment where paid staff completed cooking, cleaning, shopping, and other domestic chores for the entire family. When he moved to Melbourne, his sister’s husband continued to perform many of those tasks for the entire family.

   (e)The Applicant can learn new things and improve his functional capacity. For example, the Applicant learned to do washing-up and cooking through school and his Food Technology course at TAFE.

   (f)The Applicant can independently use a mobile phone and learnt how to call clients while working in his volunteer role.

   (g)The Applicant can respond to questions without a script or advanced planning, as evidenced during his engagement with the Tribunal. His verbal communication is entirely intelligible.

   (h)The Applicant could not identify incidents in the past where he was abusive or aggressive to his boss, colleagues, clients, or general members of the public. The Tribunal is satisfied he has had no significant contact with police.

   The Applicant’s wife

4. The Applicant’s wife is a qualified secondary school mathematics teacher and grew up in Australia.

5. The Applicant’s wife told the Tribunal she met the Applicant while leading a small church-based discussion group on healthy relationships held over 3 or 4 days. The Applicant attended part of the course. She explained that the Applicant got her number and texted her every day until she ended up agreeing to spend some time with him. This progressed to them talking on the phone each evening.[34]

   [34] Wife’s oral evidence.

6. The Wife recalled that the Applicant walked “really strange” and was “slurring a lot of his words”, which he said, was due to a stroke. She noted that several family members are nurses and “they didn’t think his presentation was at odds with what he just said”. The Wife said she knew at the time that the Applicant had spent 7 years working with [major international fashion brand] but had assumed it was “normal work” which she later realised was not the case.[35]

   [35] Wife’s oral evidence.

7. During the period of getting to know one another, the Wife indicated the Applicant went back and forth to his country of origin several times as he was trying to work, “make money and be responsible”. Her recollection was that the Applicant mostly did the trip overseas with his parents. His sister mainly stayed at the family home in Melbourne where the Applicant also lived. She said the Applicant’s family was “not poor” and have several businesses in their home country including a pharmaceutical manufacturing business and a church. After attempting to work in those businesses, the Applicant’s brothers decided that “he wasn’t able to do anything that was worth paying for and that he should just come and be dependent on me”.[36]

   [36] Wife’s oral evidence.

8. The Wife explained that she dropped the Applicant at the airport on one occasion, recalling that he had not packed his bags when she arrived to pick him up at his home. When asked whether she had dropped the Applicant at the front entrance, she replied, “I don’t really remember that part, but I imagine, yeah”.[37]

   [37] Wife’s oral evidence.

9. When the Applicant was home in Melbourne, the Wife gave evidence that they would see each other “pretty much every day”, with the Applicant driving to her home in another part of Melbourne. She remembers that he would often arrive stressed or late. “In the end I gave him a key and he used to just come for half a day when I wasn’t even there. I often didn’t finish school til 5 or 7”. She could not recall if there were any issues with his personal hygiene at the time. The Wife told the Tribunal that the Applicant didn’t sleep over at her home prior to them marrying, so the Tribunal understands that he would then drive home in the evening. She explained that an OT had recently assessed the Applicant and “decided… it felt safe driving in the local area” but noted “he’s now got to the point where he lets his assistants [support workers] drive him pretty much all the time”. She confirmed there are no conditions on the Applicant’s driving license, beyond the need to wear glasses.[38]

   [38] Wife’s oral evidence.

10. The Wife told the Tribunal they had travelled to the Applicant’s country in mid-2024, along with the support worker Ella, present at the commencement of the hearing. This was surprising to the Tribunal given the Applicant said he could not recall the last time he travelled there. There was no mention of this trip in the documents filed with the Tribunal despite the trio being away together for 3 weeks. The wife said the Applicant and his family usually eat at a particular restaurant in their hometown. The Wife and the Applicant ate at different restaurants when overseas on their honeymoon. She had witnessed him become very angry when she served him fish that had previously been frozen. She noted he frequently watched cooking videos on YouTube and would offer tips from his food technology course, such as adding lemon to red meat to help tenderise it.[39]

    [39] Wife’s oral evidence.

11. The Applicant’s wife told the Tribunal that when she first met the Applicant, the FND was more pronounced, whereas now it was the ASD and C-PTSD that they were dealing with.[40]

    [40] Wife’s oral evidence.

12. The Applicant’s wife confirmed she had taken long service leave in 2020 after the couple were married. She went back to teach in the first term in 2021, but then stopped “because it was not working”. Recently, she had marked some final year papers, which she did at home, and volunteered at 3 school excursions in 2024. She conducts business and investing activities at home, but said she fully intends to go back to teaching.[41]

    [41] Wife’s oral evidence.

13. The Applicant’s wife provided an overview of a typical shift for support workers.[42]

    [42] C27 of JHB, p338-339.

Time	Activity [the Applicant] is typically working on	Support Provided to allow [the Applicant] to accomplish activities he wants to do
9:15 - 9:30	Getting organised for the day -    Make breakfast -    Write list of jobs for the day	-    planning schedule -    Verbal prompting and reminders -    Provide support for decision making
9:30 - 11:30	Allied health therapy homework	-    monitor body language -    Remain patient and present -    Assist with problem solving -    Redirection to stay on task and minimise distractions -    Help reading and understanding written instructions and content -    Provide constant reassurance and positive feedback -    Monitor for fatigue -    Breaking down task into smaller steps -    Taking notes and assisting with finding and using resources -    Assisting with contacting therapists as required I.e. phone call or email
11:30 - 12:30	Tidy up -    Take out bins -    Unpack dishwasher -    Put load of washing on/sort washing	-    physical assistance as required -    Monitoring for fatigue and body language -    Encouraging rest breaks as needed
12:30 - 1:30	Check emails Make a phone call or research product/service	-    assist with preparing for conversations with others -    Practicing communication options -    Writing scripts -    Encouragement and positive feedback -    Support to remain focused on task -    Taking notes/documenting details for consideration
1:30 - 2:30	Outing -    Go to [local location] property, meet tradesperson for quote or to check their work -    Buy lunch	-    helping [the Applicant] get ready for the activity and have a plan for the outing I.e where to go first -    Driving [the Applicant] to/from shops/ [local location] -    Physical support when walking to prevent walking into objects -    Assistance with communicating to others in the community/ [local location] as required -    Support to remain on task and minimise distractions
2:30 - 3:00	Lunch	-    making sure [the Applicant] is comfortable and has everything he needs to eat his lunch and is able to safely swallow his food -    Assisting with packaging if needed -    Assisting with clean up
3:00 - 4:30	Make phone calls and complete email replies	-    assist with preparing for conversations with others -    Practicing communication options -    Writing scripts -    Encouragement and positive feedback -    Support to remain focused on task -    Taking notes/documenting details for consideration
4:30 - 5:00	Vacuum house Tidy desk Put washing away	-    physical assistance as required -    Monitoring for fatigue and body language -    Encouraging rest breaks as needed -    Reassurance and reflection on anything that came up during the day that [the Applicant] may be ruminating about

Increased support worker assistance

1. The Applicant’s wife set out the need for the additional supports in a statement of facts, issues, and contentions.  She contends that the increased support worker assistance of 12 hours per weekday and 6 hours on Saturday and Sunday is needed due to the Applicant’s “maladaptive and challenging behaviours. These behaviours make it difficult for [the Applicant] to engage in daily activities… [The Applicant] has a history of, and is at risk of, breakdown in his support due to the challenges of working with him”.[43] The Wife further contends:

   It seems the agency’s current funding position assumes [the Applicant’s wife] could reasonably be expected to work a full-time job to support herself and the Applicant financially, and then come home to provide essential supports for [the Applicant] at an intensity that meets [his] on-going needs.[44]

   [43] A2 of JHB, p47.

   [44] A2 of JHB, p48.

2. The Tribunal observes the Applicant’s wife has not worked outside of the home in any regular capacity for approximately 4 years. Noting that the Applicant currently utilises 9 to 10 hours of support worker assistance per weekday, the Tribunal was not persuaded that current arrangements place an undue carer burden on the Wife.[45]

   [45] See section 34(1)(e) of the NDIS Act.

3. When asked by the Tribunal what the additional hours would be used for – either personal care or community access, the Applicant’s wife confirmed there was no particular activity or goal in mind and further stated:

   So I, I don't know, I don't think it really matters what they're classified as, but it's, it's more so that [the Applicant] has support to engage in life and do the things he's trying to and wants to do, given that what [the Applicant] was able to do is fairly limited without somebody helping him.[46]

   [46] Wife’s oral evidence.

   Higher intensity rate

4. With respect to the request for higher intensity rate of support worker assistance, the Wife said the Applicant’s “support needs are such that he requires his worker to make ongoing, tailored adjustments, in complex situations… These situations can change quickly and are different from one day to the next”. She suggests that the rate of pay for standard support workers is insufficient to attract the support workers necessary to meet the Applicant’s needs.[47] In her oral evidence, the Wife indicated that one of the current support workers is “definitely more skilled than a standard one” and is being “paid a at a higher rate… but we can’t claim it that way”. The Wife was somewhat vague on the number of hours support workers spend at the home most days stating, “But yeah, usually we’re around 9:00[am] to around 7:30[pm], probably most about 10 or 10 and a half hours per day”.[48]

   [47] A2 of JHB, p46.

   [48] Wife’s oral evidence.

5. The Wife estimated that about half the shift is often spent helping the Applicant to regulate his emotions and getting back on task. Sometimes she needs to provide assistance if a support worker is not sufficiently skilled to manage his behaviours. The Wife acknowledged that if she is at home, the Applicant is more likely to seek her out.[49]

   [49] Wife’s oral evidence.

   Increased behaviour support and self-managed funding

6. A behavioural needs assessment was conducted by a behaviour support practitioner on 16 January 2024. She described a range of behaviours of concern including emotional outbursts of uncontrollable crying, verbal aggression which can escalate to property damage, disinhibited behaviours, threats of suicide, inappropriate comments volatile emotional swings, making unfounded accusations.[50]

   [The Applicant] presents with many behaviours of concern that interfere with his ability to sustain relationships; of particular concern is his verbal aggression when his PTSD is triggered. [The Applicant’s] verbal aggression stems from copying manipulation strategies used within his family of origin to control and manipulate his family members… [His wife] is often the primary target of his verbal aggression.[51] [Tribunal’s emphasis]

   [50] C29 of JHB, p343.

   [51] C29 of JHB, p356-357.

7. The report did not specify when these behaviours first emerged. It did note the following:

   [The Wife] informed the writer that of particular concern to her, is what she describes as cruel verbal aggression attacks. During which she reports [the Applicant] says every mean thing he can think of in the situation. [The Wife] reports a recent example of this occurred when she did not rub salt into a roast that she was cooking for them, [the Applicant] thought this would result in his (sic) having to eat substandard food which triggered his PTSD. [The Applicant] aggressively launched into aggressive accusatory comments such as, ‘[the Wife] was trying to serve him dog food’ and ‘he would call the police on her’ etc.[52]

   [52] C29 of JHB, p343.

8. The Applicant’s Wife submits that the Applicant requires additional support to implement newly developed behaviour support strategies and that he experiences “persistent difficult and distressing behaviours of concern that have been ongoing over his life that disrupt and makes his usual day-to-day life hard to cope with”.[53] She also contends there is also no reason why the behaviour support funding should be stated, noting that other funding categories are self-managed.[54]

   [53] A2 of JHB, p50.

   [54] A2 of JHB, p51.

9. A behaviour assessment report and behaviour support plan also completed by Behaviour Support Practitioner Ms Teresa Robertson, is discussed further below.[55]

   [55] See C36 of JHB, p422 and C43, p519.

   Increased psychology hours

10. The Applicant is currently funded 50 hours for psychology. The Wife explained that since last year he has often been attending sessions twice weekly, using OT funding to pay for these sessions.  

11. In relation to the request for 105 hours of psychology, the Wife submits that funding for weekly psychological sessions is insufficient, and that additional funding would allow for twice-weekly sessions with the psychologist and the psychologist’s attendance at allied health team meetings.[56]

    [The Applicant’s] needs for this intensity of support arise out of his having a very low level of emotional coping skills. [The Applicant’s] disability conditions, including that his adaptive coping skills are that of a two year old, and his extensive history of his most familiar relationships being dangerous and misunderstood, means that he is not able to independently manage the psychological stress of his conditions independently. [The Applicant] experiences heightened psychological stress to seemingly trivial matters as a result of his conditions. His FND is considered to have arisen out of his inability to psychologically manage this psychological stress. It also means that he is not able to maintain relationships without additional professional support, but at the same time is dependent on care relationships for his survival.[57]

    [56] A2 of JHB, p52.

    [57] A2 of JHB, p54.

12. The Wife told the Tribunal that the Applicant’s current clinical psychologist did not want to give oral evidence at hearing. In a letter dated 27 November 2024, the psychologist wrote:

    The primary focus of [the Applicant’s] sessions is working on emotion regulation capacity and maintaining appropriate social relationships… Without Psychological support, [the Applicant] does not have functional capacity, cannot cope with his trauma, and does not cope with being left alone.[58]

    [58] C42 of JHB, p518.

13. There was no evidence from the treating psychologist recommending an increase to hours of psychological support. The Applicant’s wife conceded later in the hearing that the psychologist has suggested to her that psychological support be provided in a flexible manner and using a “team approach”. The Tribunal understands this to mean a multi-disciplinary approach whereby, for example, a psychologist, OT, and speech therapist liaise and collaborate on therapeutic approaches to ensure consistency and promote effective outcomes.

14. The Applicant’s wife confirmed that the Applicant has not attended a Men’s Behaviour Change Program and did not believe he would be able to participate in a group setting. She was sceptical about the Applicant’s ability to participate in couple’s counselling, stating, “it’s really hard for him to sit down and even have a normal conversation where you could talk about things like an adult”.[59]

    [59] Wife’s oral evidence.

15. The Applicant’s wife said she had sought assistance through the carer’s gateway on two occasions and saw a counsellor a ‘few times’ under a mental health plan in 2024.[60]

    [60] See C25 of JHB, p333.

    Adaptive functioning

16. Seemingly central to the Applicant’s claim for increased support was a report filed by his treating clinical psychologist. In August 2023, she determined, using the Vineland Adaptive Behaviour Scale (Vineland-3), that the Applicant’s adaptive functioning with respect to communication, daily living skills and socialisation was in the lowest one to two percent for his age.[61] She went on to conclude:

    This means that it is not reasonable to expect [the Applicant] to cope with age appropriate tasks independently. [The Applicant] requires assistance with all daily living tasks. It is most important to understand that [the Applicant’s] age equivalent scores indicate his ability to be left alone. The primary question is whether or not a person of these age equivalents should and has the capacity to be left alone. [The Applicant] does not have the capacity to be left alone to cope with daily demands and requires continuous supervision. Most of the [the Applicant’s] age equivalents fall below 10 years. There is a duty of care to meet [the Applicant’s] needs for support without placing undue burden on [the Applicant’s] only carer and partner…[62]

    [61] C23 of JHB, p317.

    [62] C23 of JHB, p323.

1. The issue of comparing the Applicant’s functional capacity to that of a young child will be discussed below.

   Key observations

2. The Tribunal found the Wife to be an honest witness who did her best to give frank and forthright evidence. She appeared to struggle to stay focused on some of the questions put to her and responded in a manner that was at times circuitous and expansive. On other occasions, she was overly anticipatory, interrupting questions from Counsel or the Tribunal with answers rather than waiting to hear the actual question. The Tribunal wishes to be clear that this is not a criticism of the Wife and it is not suggested that there was any disrespect or discourtesy intended. However, the Wife’s communication style did complicate the Tribunal’s understanding of the relationship dynamics between the couple, with the Applicant observed to be generally more direct and concise in his responses.

3. The Wife told the Tribunal she is dyslexic and requires assistance to prepare written material including a complaint to the Australian Health Practitioner Regulation Agency (AHPRA) (discussed further below), which David, the support worker, assisted her to edit.[63]

   [63] See C47 of JHB, p574.

4. The Tribunal wishes to acknowledge that the Wife has made significant efforts to support her husband and clearly cares deeply for him.

5. The Tribunal makes the following observations in relation to the Wife’s evidence:

   (a)The Applicant regularly travelled back and forth to his country of origin throughout his adult life, often with family members. However, he has travelled independently on occasion. He spent 3 weeks in his country of origin in mid-2024 with his wife and Ella, the support worker. He has also travelled to at least 5 other countries in Asia.[64]

   (b)In the period prior to marriage (2017 to 2020), the Applicant drove to and from her home (including in the evenings) which was approximately 30 minutes away.

   (c)During the same period, the Applicant spent significant periods of time alone at his now-wife’s home in Melbourne while she was at work. This occurred in the context of the Applicant living with ASD Level 2 and experiencing trauma as a child. It also occurred after the physical altercation with his brother in 2015 which is considered the likely precipitating factor to his FND. The Tribunal finds that the Applicant spent significant time alone during a period where his FND symptoms were more pronounced than they are now.

   (d)The Applicant’s wife has not returned to work as a teacher despite the funding for 9 hours of daily support worker assistance each weekday. The Tribunal accepts that the Wife is stressed and the relationship with the Applicant is more complicated than she originally envisioned. However, noting her long-term unemployment[65] and the high level of support worker assistance in the home, the Tribunal is not satisfied that her caring responsibilities could be characterised as unreasonable or excessive.

   [64] E7 and E8 (Applicant’s passports).

   [65] The Tribunal accepts that the Wife conducts some investments activities from home.

6. In the Applicant’s written closing submissions, the Wife contended that she had checked the Applicant’s old passports which did not reveal any travel to Europe. She attached copies of two passports from the Applicant’s country of origin with a date range of 2008 to 2017. The Applicant and his wife were on notice after the first 2 days of hearing that his international travel was a consideration for the Tribunal. Despite an adjournment of approximately 7 weeks between the second and third day of hearing, the Wife did not submit this evidence during the intervening period.

7. The Applicant was under oath and appeared to be candid in his disclosures to the Tribunal, particularly when asked on the third day to clarify the extent of his overseas travel with [major international fashion brand] prior to meeting his wife. The Wife’s closing written submissions suggests this evidence was either untruthful or unreliable. However, as this issue was not appropriately raised during the hearing, the Tribunal was unable to obtain further clarification, including whether the Applicant has ever travelled on an Australian passport. In the circumstances, the Tribunal is unable to determine whether the Applicant has ever travelled to Europe or not. Whilst this issue has no substantive bearing on the Tribunal’s decision or its finding in relation to the Applicant’s functional capacity and support needs, this example perhaps highlights the complex dynamics at play between the couple.

   Ms Teresa Robertson – Behaviour Support Practitioner (BSP)

8. Ms Robertson has worked in the disability sector for 20 years in various roles including support worker, support coordinator and group home area manager. She also has 10 years’ experience as a registered Paramedic. She holds a Bachelor of Health Science (Rehabilitation Counselling), a Bachelor of Paramedicine, a Graduate Certificate in Psychology, Diploma in Disability and Cert IV Service Coordination. She was registered as a Behaviour Support Practitioner with the NDIS Quality and Safeguards Commission in May 2024.[66]

   [66] Email from Ms Robertson, sent to Tribunal and Respondent on 23 January 2025, after giving oral evidence.

9. Ms Robertson prepared a Behaviour Assessment Report dated 25 September 2024.[67] She also responded to a set of targeted questions provided by the Applicant’s lawyer at the time, dated 10 October 2024.[68] A comprehensive Behaviour Support Plan was finalised on 4 December 2024.[69]

   [67] C36 of JHB, p411.

   [68] C38 of JHB, p428.

   [69] C43 of JHB, p519.

10. Ms Robertson explained:

    Throughout his childhood, [the Applicant] was frequently punished for behaviours related to his disabilities. His family’s response was to attempt to correct what they saw as age-inappropriate actions with shame and discipline, rather than understanding or support.[70]

    [70] C36 of JHB, p412.

11. Ms Robertson claimed the Applicant is “dependent with meal preparation due to FND symptoms” and that “it was identified by all assessments that [the Applicant’s] abilities were at Extremely Low levels of functioning (equivalent to a child under 5 years old) across all the composite areas and decreased further with fatigue, pain, and the complexity of tasks”.[71] She further claimed that based on the Vineland Behavioural Adaptive Scale tool, administered by his clinical psychologist, the Applicant’s “language skills were equivalent to an age of 2 year 9 months”.[72]

    [71] C36 of JHB, p413.

    [72] C36 of JHB, p414.

12. Ms Robertson recommended 12 hours of support worker assistance per day at the high intensity rate due to his complex and unique needs.[73] She opined that the Applicant was at significant risk if left alone:

    • Suicidal ideation and self-harm: Without supervision, [the Applicant] is at risk of acting on these thoughts, putting his safety and life in jeopardy.

    • Inability to manage daily tasks: Due to his neurological and cognitive impairments, [the Applicant] struggles with his own self-care, food preparation, and managing household tasks, leading to potential neglect of his basic needs.

    • Increased risk of injury: His physical and neurological symptoms, such as fluctuating limb function and chronic pain, could lead to falls or other accidents.

    • Emotional and psychological distress: Being left alone may exacerbate his PTSD symptoms, causing him anxiety, panic, or emotional dysregulation.[74]

    [73] C38 of JHB, p428.

    [74] C36 of JHB, p416.

13. She described a range of behaviours of concern including maladaptive social behaviours including uncontrollable emotional outbursts like crying, verbal aggression, and property damage. In relation to a lack of emotional regulation she said:

    If [the Applicant] is unable to communicate effectively and feels his wants or needs are not being met, he will use hurtful language, insults, or threats to exert power or control over another person. It may include tactics such as gaslighting, belittling, or shaming, which are intended to undermine the other person’s confidence and compel them to give [the Applicant] what he wants.[75] (Tribunal’s emphasis).

    [75] C36 of JHB, p419.

14. In her Comprehensive Behaviour Support Plan, Ms Robertson reported that the Applicant displayed physical aggression several times per week and was verbally aggressive including swearing and threatening to kill others several times per day.[76] The plan identified two  key goals for the Applicant including demonstrating “safe road crossing behaviour (e.g., stopping, looking both ways, and waiting for a signal) during 90% of community outings within three months” and using “an agreed-upon alternative communication method to express frustration in 4 out of 5 observed instances within 12 weeks”.[77] In her oral evidence, Ms Robertson indicated the Applicant’s wife and support workers had told her that the Applicant has no sense of road safety and will just walk out onto a road. “We’re trialling just tapping him to remind him to stop”. Ms Robertson could not say how often these types of incidents occur and explained that no data has been collected to date. Her behaviour support plan does not include restrictive practices. It was unclear to the Tribunal how to reconcile Ms Robertson’s recommendation for road safety noting the Applicant has an unrestricted driving license and has driven for many years.

    [76] C43 of JHB, p535 and p538.

    [77] C43, of JHB, p543.

15. During her oral evidence, Ms Robertson confirmed she had not met the Applicant in person, with all consultations conducted by video. She also explained that most of her interactions had been with the Applicant’s wife and his support workers. She said the Applicant had talked to her about his childhood trauma and was triggered during their discussion. Ms Robertson agreed with the proposition that her direct observations of the Applicant were limited, and best practice would generally involve a direct conversation with the Applicant without anyone else present.[78]

    [78] Ms Robertson’s oral evidence.

16. Ms Robertson indicated childhood trauma is one of the most significant factors underlying his need for psychological support and opined he “is unable to eat microwaved foods and cannot eat meals that have been rationed”.[79] No further explanation was provided. When asked how she formed her view that the Applicant has “persistent suicidal ideation”[80] she said:

    So that’s more come from the support workers that if things are going particularly badly for [the Applicant] on a day, he will say there’s no point me being here. I’m gonna just go end it. He’ll grab the car keys to go out the front to go take the car to do something.[81]

    [79] C38 of JHB p437.

    [80] C38 of JHB, p428.

    [81] Ms Robertson’s oral evidence.

17. She could not confirm any incident of self-harm beyond the Applicant hitting himself. She noted the support workers intervened to “redirect him” from taking the car.[82]

    [82] Ms Robertson’s oral evidence.

18. Ms Robertson wasn’t sure how often the Applicant experiences the worst symptoms of FND. She noted that in her observations “he’s just walking back and forth”, suggesting there was no obvious impact on the way the Applicant walks.

19. Ms Robertson agreed with the proposition that there appeared to be a reluctance from the Applicant to be alone, both at home and in the community. In support of her recommendation that he only be left alone for 30 minutes at a time[83], she said:

    So you know, for the fact that as soon as someone’s gone, he feels abandoned. So he’s already triggered. If he’s FND is at a point where he’s not functioning for the day, he is not toileting, he is not eating. If he gets into that mindset where I’m gonna end it, there’s no one there to prevent that from happening. I think it’s just too much of a risk to take and unfair to [the Applicant], to put him in that situation where he is left without the ability to eat or go to the toilet or care for himself.[84]

    [83] C38 of JHB, p430.

    [84] Ms Robertson’s oral evidence.

20. Ms Robertson explained it was her understanding that staff must initiate or prompt the Applicant to complete many daily tasks and that they use a communication board. She attributed this to a combination of factors arising from the Applicant’s ASD, PTSD and FND. With respect to the reasons behind the Applicant’s verbal aggression, she opined, “so having autism, obviously your social cues are skewed, and he does display a lot of that” and “complex trauma because of the way he perceives how people are treating him in that point in time”. She opined that if the Applicant was challenged to do more for himself in terms of skill development, there would be an increase in behaviours of concern.

21. The following exchange took place:

    Counsel: [The Tribunal had heard evidence of the Applicant’s] ability to drive, to be home alone, to work, to travel internationally. How does that reconcile with your current opinion.

    Ms Robertson:           Yeah, I mean I’ve not been privy to that part of his life. So I don’t really know what happened, you know, what the changes have been.

    Tribunal:Ms Robertson, wouldn’t you think it’s important to understand that history, given the level of supports that are in question in this matter… How do I weigh those things up?

    Ms Robertson:           Yeah, so like all, I can only go off what information I’ve been given.

22. The Tribunal asked Ms Robertson to help it understand the distinction between a behaviour of concern and what could otherwise potentially be considered family violence or criminal behaviour. She opined, “[H]e doesn’t go out and go… I’m going to smash this because I’m angry. He does it because the irrationality that comes from not being able to process it, not knowing the social cues and all that sort of thing”.[85]

    [85] Ms Robertson’s oral evidence.

23. The Tribunal accepts that Ms Robertson has relevant experience and qualifications and was an honest witness when giving her evidence. However, it is also clear Ms Robertson has very limited experience as a behaviour support practitioner, has limited knowledge of the Applicant’s history and seemingly over-relied on reports from the Applicant’s wife and support workers without any critical appraisal of the information. Noting a key objective of the NDIS Act is to give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities[86] including Article 8 which focuses on awareness raising and combatting stereotypes and prejudices[87], the Tribunal was concerned that Ms Robertson had uncritically included functional comparisons between an adult man and a child from another report into her report. The Tribunal finds such comparisons to be misleading and not reflective of good disability practice. The Tribunal places some weight on her evidence.

    [86] See section 3 of the NDIS Act.

    [87] Convention on the Rights of Persons with Disabilities, signed 2007, 2515 UNTS 3 (entered into force 3 May2008) < Katherine Gill - OT

24. Dr Gill told the Tribunal she has worked as an OT since 2010 with a focus on working with people with psychosocial disability, however a CV was not provided to the Tribunal. She is the founder of FND Australia Support Services and the Director of FND Clinic, established in 2017. Dr Gill also identifies as a person with lived experience of FND. She did not provide the Tribunal with any information pertaining to her OT qualification or PhD qualification.[88]

    [88] A letter dated 4 January 2025 outlined her experience, particularly in relation to matters of FND advocacy and research, but did not provide further details regarding her qualifications and professional employment history. See C45 of JHB, p564.

25. Dr Gill told the Tribunal FND is “like your nervous system has blown a fuse” and explained there is huge variability across people who live with FND. She said it tends to be associated with other disorders and indicated that in the Applicant’s case, his FND symptoms may arise due to the underlying conditions of autism and complex trauma. She noted “the research for FND is really in its infancy compared to other conditions”.[89]

    [89] Dr Gill’s oral evidence.

26. Dr Gill’s report indicated the Applicant first displayed symptoms of FND in 2015 following a head knock which caused the onset of stroke-like symptoms. He was admitted to hospital, underwent rehabilitation in a brain injury unit and was formally diagnosed with FND in July 2020.[90]

    [90] C39 of JHB, p448

27. She noted the Applicant experiences “many daily triggers associated with his C-PTSD, including challenges with interpersonal interaction and problems around food and eating, due to a long history of child neglect, and being denied food as a source of punishment”.[91] Further, “his autism significantly impairs [the Applicant’s] capacity to communicate with people, understand conversation, manage interpersonal interactions and make/keep friends”.[92] Accordingly, in Dr Gill’s view, the Applicant “requires a high level of specialist support capable of understanding the needs associated with autism, C-PTSD and FND”.[93]

    [91] C39 of JHB, p450.

    [92] C39 of JHB, p450

    [93] C39 of JHB, p451.

28. Like Ms Robertson, Dr Gill noted:

    Formal assessment of his adaptive functioning, undertaken in Aug 23 and repeated in Oct 24, found [the Applicant] to have the level of adaptive skills equivalent to that a two-year-old, and hence he requires support 24/7. No amount of rehabilitation will be able to improve his adaptive functioning to his chronological age of 33 years. (Emphasis in original).

29. Dr Gill’s report referenced ongoing GP management, neurology, psychology, OT, speech pathology and physiotherapy interventions, all of which she found were “not effective in improving functional limitations”.[94] She noted the Applicant “is unable to socialise with other disabled people” but did not provide any explanation for this opinion.[95]

    [94] C39 of JHB, p452.

    [95] C39 of JHB, p455.

30. In her oral evidence, Dr Gill explained that another OT from her organisation had conducted an assessment with the Applicant in 2023 and therefore she was familiar with him through previous case notes and reports.[96] She confirmed that neither herself nor her colleague had met the Applicant in person, with all assessment sessions conducted by video.[97]

    [96] See C22 of JHB, p283.

    [97] Dr Gill’s oral evidence.

31. In her oral evidence, Dr Gill indicated she was provided with a lot of background information from a behaviour support practitioner, a psychologist, support workers and the Applicant’s wife prior to completing her report on 12 October 2024.  A support worker and the Applicant’s wife were both present when she spoke with the Applicant during 3 extended sessions prior to writing her report. She described how a support worker “had sat down with [the Applicant] and gone through each [WHODAS] question and had written almost like a paragraph for each question around why they gave that response”.[98] The Applicant’s wife completed the questions for the Vineland-3 adaptive functioning assessment tool.[99]

    [98] Dr Gill’s oral evidence

    [99] Dr Gill’s oral evidence.

32. Dr Gill confirmed she had not observed the Applicant completing daily tasks except those captured by video which included the Applicant vacuuming, using a pincer grip, and working with a physiotherapist. She was not aware of the Applicant suffering from severe fatigue in the last number of years.[100]

    [100] Dr Gill’s oral evidence.

33. Dr Gill explained to the Tribunal that the Applicant’s autism “affects him most” followed by complex trauma.

    So his FND is really a secondary outcome, which I talk about like blowing the fuse from unmanaged autism and psychosocial disability complex trauma… [the Applicant] doesn’t appear to have seizures, severe chronic pain and severe fatigue.

    …

    So we shouldn’t, we should be looking more at autism interventions for [the Applicant], not so much FND, because his FND is manageable if we manage the psychosocial and the autism. So we need to look at that because that can stop [the Applicant] going into full blown FND flares.[101] (Tribunal’s emphasis)

    [101] Dr Gill’s oral evidence.

1. Ms Ploszaj gave evidence that behaviours of concern are usually generic, that is they can target anyone with the right trigger.

2. The Respondent submits there is insufficient evidence before the Tribunal to enable it to make submissions regarding the categorisation of the Applicant’s behaviours.[155]

   [155] E6, Respondent’s written closing submissions, p 7.

3. The Tribunal finds many of the behaviours reported by the Applicant and his treating practitioner have emerged in the context of an intimate relationship. The Tribunal is not satisfied the Applicant’s behaviours can be characterised as ‘behaviours of concern’ because they are not generic, they predominantly target his wife, he does not have an intellectual disability and there was no evidence of abusive behaviour towards anyone else prior to his marriage.

4. As the Tribunal is not satisfied the Applicant has behaviours of concern, it is unnecessary to consider the request for 150 hours of behaviour support per year. He does not need a behaviour support plan or behaviour support interventions and these supports should be removed from his plan. For this reason, it is also unnecessary to consider the management of funding for behaviour support. The requests for additional behaviour support and self-management of such funds are refused.

   Higher Intensity rate

5. The NDIS has different pricing levels for standard and high intensity support worker assistance.[156] The higher intensity level of support is usually directed at disability-related health needs which are identified by the NDIS Practice Standards and Quality Indicators as ‘High Intensity Daily Personal Activities’ including:

   ·Complex bowel care

   ·Enteral feeding and management

   ·Severe dysphagia management

   ·Tracheostomy care

   ·Urinary catheter management

   ·Ventilator management

   ·Subcutaneous injections, for example, diabetes managements

   ·Complex wound management.[157]

   [156] ‘NDIS Pricing Arrangements and Price Limits’, National Disability Insurance Scheme (Web Page) ‘NDIS Pricing Arrangements – Disability Support Worker Cost Model, National Disability Insurance Scheme (Web Page) ‘Supplementary module: High intensity daily personal activities’, NDIS Quality and Safeguards Commission (Web Page) See also Schedule 2 – Module 1: High intensity daily personal activities in National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.

6. On the 1 October 2024, the NDIS Disability Support Worker Cost Model Assumptions and Methodology 2024-2025 was amended, including an intensive and complex behaviour supports to the Price Limits Table.[158] This change addressed concern that arose when the term ‘challenging behaviours’ was removed from the high intensity support definition.[159]

   [158]

   [159] ‘Pricing updates’, National Disability Insurance Scheme (Web Page)

7. The NDIS Pricing Arrangements and Price Limits 2024-25 Version 1:3 (1 October 2024) explains:

   A support is considered Intensive and Complex Behaviour Support if it is implemented with a participant who, during the course of service provision:

   1. displays frequent behaviours of concern that have a significant effect on their or others’ wellbeing and safety; and

   2. requires intensive support and the implementation of intensive proactive strategies (frequent/daily), skill development, and response strategies, which may include the use of restrictive practices to minimise the risk of harm to themselves or others; and

   3. may, or is likely to, be experiencing other issues that exacerbate or increase the complexity of their behaviour support needs.[160]

   To deliver this support to a participant the provider must:

   -    be implementing behaviour support (as described above) with the participant and in accordance with their interim or comprehensive behaviour support plan; and

   -    be registered and assessed for Module 2A (Implementing Behaviour Support Plans); or

   -    have submitted a registration amendment application or new registration application to the NDIS Quality and Safeguards Commission including a completed audit assessment against Module 2A by 30 June 2025.

   Note: plan managers must use a provider who has completed Module 2A during the provision of intensive and complex behaviour supports or when delivering restrictive practices.

   [160] P38.

8. The reference to Module 2A is that contained in the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.[161]

   [161] See Schedule 4 – Module 2A: Implementing behaviour support plans.

9. There was no evidence before the Tribunal about the registration status of the Applicant’s support workers with respect to their assessment and registration against Module 2A. A comprehensive behaviour support plan was only finalised in December 2024 and Ms Robertson confirmed in her oral evidence that no data has been routinely collected yet.[162] There are no regulated restrictive practices in his behaviour support plan and the Applicant’s 2 behaviour supports goals are to demonstrate safe road crossing behaviour and using alternative communication methods to express frustration.

   [162] C43 of JHB.

10. The Respondent submitted that the Applicant clearly does not meet the criteria that would justify support worker assistance at high intensity as defined in Schedule 2 – Module 1: High intensity daily personal activities. The Tribunal agrees.

11. Similarly, the Respondent contends that the Applicant’s needs do not reflect those contained or referenced in Schedule 4 – Module 2A. The Respondent further relies on Ms Ploszaj’s evidence that support worker assistance should remain at standard rates.

12. As the Tribunal is not satisfied that the Applicant has behaviours of concern, there is no justification for the higher intensity rate as set out in Module 2A. Further, for reasons which will be discussed below, the current level of support worker assistance raises the risk of dependence and therefore harm, contrary to Rule 5.1 of the Supports Rules. Accordingly, the request for higher intensity funding is refused.

    Increased psychology hours

13. The Tribunal accepts the Applicant’s evidence that his regular attendance at psychology sessions has been beneficial, particularly in terms of learning how to better regulate his emotional responses. It is also clear that psychology sessions have provided the Applicant with an opportunity to explore the impact of childhood neglect and trauma on his life.

14. The Tribunal also accepts the treating psychologist’s recommendation for a flexible ‘team approach’ which is consistent with Ms Ploszaj’s evidence about the benefits of multidisciplinary interventions. There was no clear recommendation from the psychologist for an increase to psychology hours. She opined that the Applicant would benefit from weekly funding for up to 4 allied professionals including OT, Psychology, Speech, and Behaviour Support.[163]

    [163] C23 of JHB, p327.

15. As discussed above, the Tribunal does not accept that the Applicant has behaviours of concern. Rather, they are ‘concerning behaviours’ which tend to suggest unhealthy relationship dynamics with his wife. Schedule 2 of the Transitional Supports Rules make clear that general family therapy and marriage and relationship counselling are not a NDIS support.[164]

    [164] See Item 14.

16. The Tribunal is satisfied that some of the Applicant’s behaviour towards his wife underpins his request for additional psychological funding. While it appears that the Applicant would benefit from interventions to address these behaviours, such as attending a Men’s Behaviour Change Program, relationship counselling, a 12-step program and/or some other recommended intervention, these are not NDIS supports[165] and therefore can’t be funded because of section 34(f) of the NDIS Act. The Applicant would need to either pay for those programs or access them through an alternative mainstream service.[166] If the Applicant is unable or unwilling to address his behaviour towards his wife, he may wish to consider whether it is safe for him and his wife to continue their relationship.

    [165] See Schedule 2 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)

    [166] See also Rule 3.5 to 3.7 of the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) and Rule 7 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.

17. Putting aside the couple’s relationship dynamics, the Applicant contends there is a more general reason for increased psychological supports. In closing submissions, the Applicant’s wife stated “[p]sychology is the most suitable support for helping [the Applicant] continue to build emotional coping skills. This support is usually provided by parents during infant years, which [the Applicant] did not receive”.[167]

    [167] Applicant’s closing written submissions, p 9.

18. In considering whether an increase to psychological funding is effective and beneficial having regard to current good practice (section 34(1)(d)), the Tribunal is required to consider the Supports Rules:

    3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

    (a) published and refereed literature and any consensus of expert opinion;

    (b) the lived experience of the participant or their carers; or

    (c) anything the Agency has learnt through delivery of the NDIS.

    3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

19. There was no published literature or consensus of expert opinion presented at hearing to indicate the right amount of psychological support for the Applicant. The Tribunal accepts the evidence of the psychologist and Ms Ploszaj that a multidisciplinary approach is often effective, ensuring a level of coordination and consistency in the approach taken by various therapists.

20. The Tribunal observes that the Applicant has chosen to use funding available for OT to double his sessions with his psychologist in recent times.

21. Ms Ploszaj gave oral evidence that the Applicant would benefit from input from therapists who are focused on building his independence rather than overly focused on revisiting the past, which can be retraumatising.[168] She explained that OTs also work with participants to build emotional regulation strategies:

    [The Applicant] would benefit from engagement in a structured daily routine designed in conjunction with an OT including prompts and minimization of supports… The presentation of his functional capacity is not at maximal improvement at present. He continues to have potential to improve with appropriate interventions delivered in appropriate methods.[169]

    [168] See also Respondent’s closing written submissions, p 7.

    [169] Ms Ploszaj’s oral evidence.

22. The Tribunal accepts this evidence and notes that a multidisciplinary approach requires input from an OT in this case.

23. The Tribunal finds that input from a psychologist and OT are two critical support interventions for the Applicant at this time, however it is not satisfied on the evidence that twice weekly psychological sessions are likely to be significantly more effective and beneficial to the Applicant than his current weekly sessions. For similar reasons, twice weekly sessions cannot be said to be value for money. Sections 34(1)(c) and (d) are not met.

    Increased support worker assistance

24. The Applicant currently receives funding for 9 hours per day of support worker assistance (Monday to Friday) and 5 hours (Saturday and Sunday). The Wife is currently not engaged in any formal employment and conducts some investing activities from home.

25. As discussed earlier in this decision, the Tribunal did not receive an adequate explanation from the Applicant or his supporters about the dramatic change in his functional capacity and associated support needs since his marriage and entry to the scheme, noting the consistency in the evidence at hearing that the Applicant’s ASD and C-PTSD have the greater impact on his day-to-day life. Arguably, the resolution of some of the Applicant’s FND symptoms, which the Tribunal accepts were more pronounced in 2017 to 2020 – a time when he was spending significant time alone, driving independently across Melbourne during the day and at night, and travelling back and forth to his country of origin – might tend to suggest he should have greater functional capacity now.

    Risk of dependency, loss of independence and Rule 5.1

26. The Tribunal is satisfied, having considered all the evidence, that the Applicant has lost independence, confidence, and functional capacity to undertake tasks of daily living since his marriage and his receipt of NDIS support worker assistance. The Tribunal is satisfied there is a causal link between these changes in his life and his functional decline over the past 5 years.

27. Rule 5.1(a) states a support will not be provided or funded under the NDIS if it is likely to cause harm to the participant or pose a risk to others.

28. The Tribunal finds that the Applicant is currently on a trajectory towards becoming more reliant or dependant on support workers to undertake day-to-day tasks or manage basic emotional regulation in circumstances where he was previously able to manage those things independently, albeit at a relatively low level. The Tribunal accepts Ms Ploszaj’s evidence regarding the risks of the Applicant increasingly relying on support worker assistance and the need for supports to focus on restoring the Applicant back to his previous level of functioning. The Tribunal does not doubt that considerable additional gains could be made to the Applicant’s previous base-line function noting that he did not ever receive appropriate disability support as a child or as a young adult. There is no question in the Tribunal’s mind that the Applicant will require some ongoing supports. However, such supports do not necessarily involve high levels of support worker assistance.

29. In these circumstances, the Tribunal is satisfied that the current level of support worker assistance has caused harm to the Applicant because it has undermined his existing confidence and independence and is contributing to a reduction in his functional capacity. This support is not helping the Applicant to maximise his independence and is therefore contrary to the objectives and purpose of the NDIS Act.

30. The Tribunal is satisfied that OT support is critical in terms of assisting the Applicant to build his daily living skills and confidence and will help transition the Applicant away from his reliance on support worker assistance. Ms Ploszaj gave evidence that OT support in the home is preferable and would enable the Applicant’s wife and support workers to be trained in appropriate strategies that promote independence.

31. Noting that the Applicant utilised OT funding to pay for additional psychology sessions over the past year, the Respondent submitted that 45 hours of OT support should now be stated in the Applicant’s statement of participant supports. The Tribunal agrees that it is appropriate for OT supports to be stated in the Applicant’s plan to ensure they are utilised for OT support only.

32. The Wife indicated she had experienced difficulty finding an appropriate OT. The Tribunal observes that the Applicant did engage the services of two separate OTs prior to Dr Gill.[170] The Applicant and his wife conceded at hearing that they need to engage with an OT. The Tribunal observes that electing not to engage with an OT does not provide justification for continued support worker assistance. It would be desirable for the Agency to review such engagement prior to reassessment of the Applicant’s plan in the next year.

    [170] See T6, T7 and T11 of JHB.

33. Ms Ploszaj cautioned the Tribunal against a dramatic reduction in support due to possible adverse mental health consequences and to provide a period to implement changes in delivery and methodology of support. Were it not for this evidence, the Tribunal would have been inclined to make more significant changes to the current levels of support worker assistance than will ultimately be made.

34. The Tribunal finds that the current level of support worker assistance violates Rule 5.1(a) and cannot be funded on an ongoing basis. Due to the current level of dependency and reliance that has been created through the provision of this support, and noting the time it will take to engage an appropriately qualified and independence-focused OT to implement new strategies, the Tribunal will permit a transition period.

35. Consequently, the Tribunal finds that the request for increased support worker assistance also violates Rule 5.1(a) and cannot be funded.

36. In these circumstances, the Tribunal is satisfied that the following supports are reasonable and necessary for the next 12 months for the purpose of transition.

    First 6 months (including adjustments for public holidays):

    (a)9 hours per day (Monday to Friday)

    (b)5 hours per day (Saturday and Sundays)

    Second 6 months (including adjustments for public holidays):

    (c)6 hours per day (Monday to Friday)

    (d)4 hours per day (Saturday and Sundays)

37. The Tribunal suggests that the Applicant provide reports to the Respondent from an appropriately qualified OT which evidences the development and implementation of capacity building strategies and practices with the Applicant and his support team over the next 12 months, preferably face-to-face and in the home, prior to his plan reassessment date.

38. For completeness, the Tribunal is not satisfied that an increase to support worker assistance is likely to reduce the cost of supports for the Applicant in the longer term under Rule 3.1(c) of the Supports Rules. On the contrary, the ongoing provision of current or increased levels of support worker assistance will simply entrench the Applicant’s dependence and therefore the cost of future supports. Similarly, the Tribunal is not satisfied that this support will increase the Applicant’s independence and reduce his need for other kinds of support in accordance with Rule 3.1(f). The requested support does not represent value for money pursuant to section 34(1)(c).

    DECISION

    The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) remits the decision under review for reconsideration in accordance with the following directions:

    1.    The existing 21 days of Short Term Accommodation (STA) be amended in the Applicant’s Statement of Participant Supports (SOPS) to include 15 days at the weekday, 3 days at the Saturday rate and 3 days at the Sunday rate (including adjustments for public holidays);

    2.    Behaviour support plan and behaviour support interventions be removed from the Applicant’s SOPS;

    3.    The ‘45 hours - Other professional’ supports be replaced in the Applicant’s SOPS with a stated support of ‘45 hours - Occupational Therapy’;

    4.    Current funding for support worker assistance be replaced in the Applicant’s SOPS at the standard rate as follows:

    a.    First 6 months (including adjustments for public holidays):

    i.9 hours per day (Monday to Friday)

    ii.5 hours per day (Saturday and Sundays)

    b.    Second 6 months (including adjustments for public holidays):

    i.6 hours per day (Monday to Friday)

    ii.4 hours per day (Saturday and Sundays)

    5.    The new plan includes a requirement that the Applicant’s provider of meal delivery service satisfies the criterial in the Transitional Rules (Schedule 1, clause 1, Item 23) such that the food and ingredient component can be separately identified from the meal preparation and delivery component;

    6.    All other reasonable and necessary supports in the existing statement of participant supports, excluding any one-off assistive technology already funded, shall be replicated for a period of 12 months until the reassessment date.

    7.    The management of funding for all other reasonable and necessary supports under the Applicant’s plan is to remain the same as the current plan.

    8.    The date by which the Respondent will review the Applicant’s plan is 12 months after the day on which the reasonable and necessary supports are included in the Applicant’s statement of participant supports.

Date(s) of hearing:	22 - 23 January and 14 March 2025 – by video
Applicant:	Applicant’s wife
Counsel for the Respondent:	Ms Julie Buxton
Solicitors for the Respondent:	Ms Ella Rosetzky, Maddocks