Suppressed
[2024] ARTA 285
•5 December 2024
WWWX and National Disability Insurance Agency (NDIS) [2024] ARTA 285 (5 December 2024)
Applicant: WWWX
Respondent: National Disability Insurance Agency
Tribunal Number: 2023/4816
Tribunal: General Member Dodd
Place:Perth
Date:5 December 2024
Decision:
Pursuant to s 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside and remitted for reconsideration in accordance with directions that:
(a)The statement of participant supports specifies that the reasonable and necessary supports include:
(i)52 hours per 12 months of occupational therapy plus 26 hours of therapist travel time and two hours of report writing;
(ii)52 hours per 12 months of speech therapy plus five hours of therapist travel time and two hours of report writing;
(iii)4 hours per 12 months of dietician services plus two hours report writing;
(iv)An amount of $6,045.06 for the Therapy Group Program;
(v)One-on-one swimming gap fee of $715.00;
(vi)14.5 hours of support coordination (level 2);
(vii)Fund a comprehensive assessment by a suitably qualified allied health practitioner to provide a proposed plan for the developmentally appropriate graduated transition of the Applicant being able to separate from his mother and access an age-appropriate early childhood care or education facility. The plan is to include a proposal on the number of hours of weekday support worker assistance most likely to be required over a 12-month period that considers the graduated nature of the transition, environmental changeovers and the subsequent withdrawal of support worker hours. The number of weekday support worker hours should be provided accordingly in the statement of participant supports, having had regard to this assessment and the findings of the Tribunal in this decision at paragraphs 167 to 227. Once the support worker hours have been established, they would replace the current funding for Core Supports specialised home based assistance for a child in the current plan.
(b)The supports listed in paragraphs (a)(i) and (a)(ii) above replace the Applicant’s existing funding for Improved Daily Living, except for the amount of $3,522 of additional psychology supports provided in the statement of participant supports dated 4 April 2024.
(c)All other reasonable and necessary supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be provided pro-rata from the date on which the supports specified above are included in the Applicant’s statement of participant supports until the reassessment date.
(d)The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph (a) are included in the Applicant’s statement of participant supports.
(e)The management of funding for reasonable and necessary supports under the Applicant’s plan should remain self-managed.
(f)The Respondent is to determine the appropriate mechanism for the reimbursement of funds expended separately by the Parents for any of the supports listed in paragraph (a).
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General Member
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – child participant – autism (level 3) – hypermobility – separation anxiety – support worker assistance – occupational therapy – speech therapy – physiotherapy – dietetics - swimming lessons – therapy playgroup – Funky Monkey gym – assistive technology – support coordination – reimbursement of money paid for supports – decision set aside and remitted to the Respondent for reconsideration in accordance with directions
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 37, 42D, 42D(3)(a)
Administrative Review Tribunal Act 2024 (Cth) ss 23, 54, 105, 105(c)(ii)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024National Disability Insurance Scheme Act 2013 (Cth) 3, 3(1)(c), 3(1)(g), 4, 4(11), 4(16), 5, 5(f), 5(f)(iii), 5(g), 10, 10(6), 10(7), 24, 23(1), 25, 25(1)(a)(iii), 31(k), 32BA, 32BA(1)(b), 33(2), 33(2)(d), 33(5), 33(5)(c), 33(5)(d), 33(2A)-33(2F), 34, 34(1), 34(1)(a), 34(1)(aa), 34(1)(b), 34(1)(c), 34(1)(d), 34(1)(e), 34(1)(f), 34(2), 35(1), 43, 44, 47A(2), 48(1), 48(2), 99, 100(6), 100(6), 103, 209
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 sch 1 items 129, 129(1), 129(2), 129(3), 129(4), 128A(1), 128A(2), 132
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) sch 1 items 14, 15, 15(f), 15(g), 24, 25, 27, 26; sch 2 items 2(k), 4(h), 4(p), 4(q), 14(e), 15(b), 15(e)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Cth) ss 7, 7(3), 7(4), 15(b)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) sch 1, 3.1, 3.1(a), 3.1(b), 3.1(c), 3.1(d), 3.1(f), 3.1(e), 3.2, 3.2(b), 3.3, 3.4, 3.5, 3.6, 3.7, 5, 5.1(d), 5.2, 5.2(a), 7.8, 7.9(a), 7.9(b), 7.10(a)
Cases
Castledine and National Disability Insurance Agency [2019] AATA 4240
McGarrigle v National Disability Insurance Agency [2017]FCA 308
Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
TRCH and National Disability Insurance Agency [2024] AATA 2918
Warwick v National Disability Insurance Agency [2024] FCA 616
XXWC by his mother and National Disability Insurance Agency [2020] AATA 923
Secondary Materials
Murray KJ. Hypermobility disorders in children and adolescents. Best Practice & Research Clinical Rheumatology 2006; 20(2): 239-351
National Guidelines – Best Practice in Early Childhood Intervention, Early Childhood Intervention Australia Ltd 2016
Novak I & Honan I. Effectiveness of paediatric occupational therapy for children with disabilities: A systematic review. Australian Occupational Therapy Journal (2019) 66, 258-273
National Disability Insurance Scheme (NDIS)
Reasonable and necessary supports | NDIS
Self-management | NDIS
Support coordination | NDIS
What does NDIS fund? | NDIS
What your support coordinator should do | NDIS
Statement of Reasons
BACKGROUND
At the time of the hearing, WWWX (the Applicant) was a two-year-old boy (soon to turn three). He lives with his mother (Ms WWWX), father (Mr WWWX) (collectively, the Parents) and his older brother. The Applicant is a participant of the National Disability Insurance Scheme (NDIS) having met the early intervention access criteria for developmental delay. His older brother is also a participant of the NDIS.
As the Applicant is a child, the Tribunal made a confidentiality order under s 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) on 10 July 2023. By that order, the Tribunal directed that the hearing take place in private, gave directions as to persons who could be present at the hearing, and prohibited disclosure of information that may identify the Applicant. In accordance with those orders, the pseudonym, WWWX, is used instead of the Applicant’s name in this Decision. The Tribunal has used a further set of pseudonyms (for the names of medical and allied health professionals and lay witnesses) to anonymise information that may lead to the identification of the Applicant. A summary of these pseudonyms is provided in Confidential Annexure A.
The Applicant was born with severe laryngomalacia requiring surgery to correct. He has also experienced severe reflux, recurrent ear infections and underwent surgery for an adenoidectomy and grommets insertion at 11 months.[1]
[1] Tender Bundle (TB) R7; T-Documents, T7, page 62.
When the Applicant was 21 months old he was assessed by Dr P1, a neurodevelopmental paediatrician, who noted significant features of autism spectrum disorder and recommended proceeding with an autism spectrum assessment.[2] When the Applicant was two years old he was assessed by SP1, Principal Speech Pathologist, as meeting sufficient Diagnostic and Statistical Manual of Mental Disorders 5th Edition (DSM-5) criteria for a diagnosis of Autism Spectrum Disorder (ASD) (Severity Level 3), with language impairment.[3] When the Applicant was two years and two months old he was assessed by PSY1, Senior Clinical Psychologist, who opined that the Applicant met the DSM-5 criteria for ASD, requiring very substantial support (Level 3) for deficits in social communication and requiring very substantial support (Level 3) for restricted, repetitive behaviours without global developmental delay but with language impairment.[4] When the Applicant was two years and four months he was again reviewed by Dr P1 who confirmed the diagnosis of ASD requiring substantial support (Level 3) for deficits in social-communication and restricted, repetitive and stereotyped patterns of behaviours.[5]
[2] TB, R7; T-documents, T7, pages 60-62.
[3] TB, A3, page 15.
[4] TB, A3, page 30.
[5] TB, A3, page 44.
The Applicant has additional developmental diagnoses of developmental delays (fine motor and social), language delay, hypermobility and emotional dysregulation.[6]
[6] TB, A3, page 44.
The goals identified in the Applicant’s NDIS Plan discussed in these reasons are as follows:[7]
[7] TB, R4, page 124.
(a)The Parents would like WWWX to achieve the following short-term goals:
(i)To develop his expressive and receptive communication skills to be able to express his needs and wants and to participate in daily tasks and group activities.
(ii)To develop his resilience and emotional regulation, to be able to be supported to remain calm and happy through the day and across environments.
(b)The Parents would like WWWX to achieve the following medium or long-term goals:[8]
(i)To develop his cognitive skills to better understand the world around him.
(ii)To develop his social skills to be able to develop positive relationships.
(iii)To develop his independence in self-care tasks.
(iv)To continue to develop his gross motor and fine motor skills to be able to participate in group games and daily tasks.
[8] TB, R4, pages 125-126.
Following becoming a participant in the scheme a delegate of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent or NDIA) approved a statement of participant supports (the SOPS) in the Applicant’s Plan under s 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act) for a 24-month period from 22 February 2023 to 21 February 2025 (the original plan).[9] The total funding for supports over this period was for $47,970.46 comprising:
(a)$600 for Core Supports, comprised of funding to purchase Low-Cost Assistive Technology.
(b)$46,169.62 for Capacity Building Supports – Improved Daily Living for Early Childhood Supports.
(c)$600.84 for Capacity Building Supports – Support Coordination.
[9] TB, R7; T-documents, T19, pages 97-112.
The Parents requested, under s 100 of the NDIS Act, an internal review of that decision. They requested an increase in funding for the inclusion of the following supports:[10]
[10] TB, R7; T-documents, T2, pages 20-33.
(a)Fund support worker - 25 hours per week in the first year, 15 hours per week in second year of the plan respectively.
(b)Fund $556 of gap fees for individual swimming lessons.
(c)Fund $600 for safety.
(d)Fund $6,045.06 for Telethon Kids therapy group.
(e)Fund $3,640 to attend weekly social group sessions for example Paediatric Autism Communication Therapy (PACT) or play therapy per year.
(f)Fund $1,163.94 for dietetics (initial assessment and quarterly therapy).
(g)Fund $2,327 for monthly parent training with a registered psychologist per year.
(h)Fund $3,200 for a Functional Capacity Assessment.
(i)Fund $2,000 for reports.
On 15 June 2023 a delegate of the NDIA made the internal review decision under s 100(6) of the NDIS Act, deciding to affirm the original decision.[11] The requested supports were considered not to meet the criteria for reasonable and necessary supports as outlined in s 34 of the NDIS Act on the basis that:
[11] TB, R7; T-documents, T2, pages 20-33.
(a)Fund support worker - 25 hours per week in the first year, 15 hours per week in second year of the plan respectively did not meet the following criteria: s 34(1)(c) (Value for money); s 34(1)(d) criteria (Effective and beneficial); s 34(1)(e) criteria (Reasonable expectation of families, carers, informal supports, and the community); and s 34(1)(f) (Responsibility of the NDIS to fund).
(b)Fund $556 of gap fees for individual swimming lessons did not meet the following criteria: s 34(1)(c) (Value for money); s 34(1)(e) criteria (Reasonable expectation of families, carers, informal supports, and the community); Rule 5.1(d) (Support relates to day-to-day living costs).
(c)Fund $600 for safety did not meet the following criteria: s 34(1)(e) criteria (Reasonable expectation of families, carers, informal supports, and the community); and Rule 5.1(d) (Support relates to day-to-day living costs).
(d)Fund $6,045.06 for Telethon Kids therapy group did not meet the following criteria: s 34(1)(c) (Value for money); s 34(1)(d) criteria (Effective and beneficial); and s 34(1)(e) criteria (Reasonable expectation of families, carers, informal supports, and the community).
(e)Fund $3,640 to attend weekly social group sessions for example PACT or play therapy per year did not meet the following criteria: s 34(1)(c) (Value for money); s 34(1)(d) criteria (Effective and beneficial); and s 34(1)(e) criteria (Reasonable expectation of families, carers, informal supports, and the community).
(f)Fund $1,163.94 for dietetics (initial assessment and quarterly therapy) did not meet the following criteria: s 34(1)(c) (Value for money); and s 34(1)(d) criteria (Effective and beneficial).
(g)Fund $2,327 for monthly parent training with a registered psychologist per year did not meet the following criteria: s 34(1)(c) (Value for money); and s 34(1)(d) criteria (Effective and beneficial).
(h)Fund $3,200 for a Functional Capacity Assessment did not meet the following criteria: s 34(1)(c) (Value for money); and s 34(1)(d) criteria (Effective and beneficial).
(i)Fund $2,000 for reports did not meet the following criteria: s 34(1)(c) (Value for money); and s 34(1)(d) criteria (Effective and beneficial).
The Parents lodged an application with the Administrative Appeals Tribunal (the Tribunal) on 4 July 2023 seeking a review of this internal review decision.[12]
[12] TB, R7; T-documents, T1, pages 1-5.
For provision of additional supports and to maintaining continuity of supports for the Applicant while the matter was before the Tribunal, the Tribunal remitted the decision to the Respondent for reconsideration pursuant to s 42D of the AAT Act on 19 March 2024.[13] On 4 April 2024 a revised SOPS was issued, with a review date of 4 April 2025, including the following additional supports:[14]
(a)100 hours of specialised home-based support in the Core Budget;
(b)$1,320 for an iPad, speech software, accessories, and insurance; and
(c)$3,522 to be added to the Capacity Building Budget for Psychology.
[13] TB, R3, page 118.
[14] TB, R2, page 116.
Pursuant to s 42D(3)(a) of the AAT Act, the application is taken to be an application of the decision as varied.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the ART Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal. The ART Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Requested Supports
In their Statement of Facts, Issues and Contentions, the Parents identified the following requested supports:[15]
[15] TB, A1, page 9.
(a)Support worker – 1,300 weekday hours (five hours per day x five weekdays x 52 weeks) - $71,500.00; 260 Sunday hours (five hours per week x 52 weeks) - $30,882.80;
(b)Capacity Building Budget:
(i)52 hours (weekly) of Speech Therapy + two hours report writing +$6,000 travel - $16,475;
(ii)52 hours (weekly) of Occupational Therapy + two hours report writing +$6,000 travel - $16,475;
(iii)26 hours of Physiotherapy + two hours report writing + $3,000 travel - $9,289.36;
(iv)4 hours of Dietitian (quarterly) + two hours report writing - $1,163.94;
(v)Telethon Group Sessions - $6,050;
(vi)Swimming/safety gap fee - $715;
(vii)30 hours of Support Coordination (Level 2) - $3,000;
(c)Funky Monkey Gym Equipment - $3,345;
(d)Low-Cost Assistive Technology
(i)Compression garments for posture and gait training - $700;
(ii)SPIO Vest for biofeedback - $400;
(iii)Orthotics - $800;
(iv)Therapy Ball $50;
(v)Resistance Bands - $20;
(vi)Thera putty - $100;
(vii)Balance Discs - $100;
(viii)Stepping stones - $100;
(ix)Time Tree - $80;
(x)Accounting software subscription fee - $690.
The Parents request a plan duration of 12 months and the reimbursement of funds expended by them on some of the requested supports.[16]
[16] TB, A1, page 99 at [477] – [478].
LEGISLATIVE FRAMEWORK
The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Amending Act) commenced on 3 October 2024. An issue arises in relation to the Applicant’s Tribunal application, being whether the Tribunal should apply provisions of the NDIS Act as they were in force prior to the commencement of the Amending Act on 3 October 2024, or whether the amended provisions in force as of 3 October 2024 should be applied instead.
The key issue in this application is whether the supports requested to be funded by WWWX are reasonable and necessary supports. The NDIS provisions regarding reasonable and necessary supports when preparing participant’s plans are set out under Division 2 of Part 2 of the NDIS Act
The Amending Act made changes to various planning related provisions of the NDIS Act, including changes to s 34 (reasonable and necessary supports), and ss 43 and 44 (plan management). The introduction of new s 10 (definition of NDIS support) and changes to s 24 (disability requirements) and s 25 (early intervention requirements) are also relevant to the changes made to s 34.
Subdivision C of Division 2, Part 2 deals with the content of old framework plans. Section 34 of the NDIS Act sets out the requirements for specifying in a statement of participant supports contained in an old framework plan, the reasonable and necessary supports that will be funded. The Tribunal must be satisfied that all of the criteria in s 34 for each reasonable and necessary support that is to be approved in a participant’s statement of participant supports (see s 33(5)(c) of the NDIS Act).
Subitem 129(1) of Schedule 1 of the Amending Act provides that ss 33, 34 and 35 as in force on and after 3 October 2024 apply to a statement of participant supports approved or varied on or after that date. Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is varied on or after 3 October 2024, the amendments apply irrespective of whether WWWX’s plan came into effect before, or on or after commencement. However, the amendments to s 33, by inclusion of new s 33(2A) to (2F), initially only apply to an original decision made by a delegate under the provisions of subitems 129(3) and 129(4) of Schedule 1 to the Amending Act. This means that these s 33 amendments do not apply to the Applicant’s plan.
Section 34 of the NDIS Act now includes s 34(1)(aa) requiring that the support is necessary to address the needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements. The Tribunal notes that the new requirement to specify the impairments upon which access has been granted applies to access requests made on or after 1 January 2025 (subitem 128A(1) of Schedule 1 of the Amending Act), and the requirements to notify current participants will not apply until NDIS rules are made (subitem 128A(2) of Schedule 1 of the Amending Act and s 32BA(1)(b) of the NDIS Act). Nevertheless, the Tribunal will need to consider s 34(1)(aa) of the NDIS Act as it applies to all plans approved or varied after the Amending Act commenced on 3 October 2024
Section 34 of the NDIS Act now also includes s 34(1)(f), being a requirement that any support specified in a statement of participant supports must be an ‘NDIS support’ for the participant. An ‘NDIS support’ is defined in s 10 of the Act to be a support which is declared by the National Disability Insurance Scheme rules to be a NDIS support. Section 10 provides that the National Disability Insurance Scheme rules may also declare that a support is not a NDIS support.
Pursuant to s 10 of the Act, the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) set out those supports which have been declared to be an NDIS support (Schedule 1), as well as those supports which have been declared to not be an NDIS support (Schedule 2).
A transitional rule is in place that effectively re-imposes the previous requirement of s 34(1)(f) for a period of time until new rules are made that specify how the CEO is to take into account supports in respect of personal injury. During this period the decision maker will need to consider whether a support is an NDIS support and whether it is most appropriately funded by the NDIS. Section 7 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 provides at ss 3 and 4 the following:
(3)The matter of which the CEO must be satisfied is that the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(a)as part of a universal service obligation; or
(b)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(4)In deciding whether or not he or she is satisfied of the matter mentioned in subsection (3), the CEO must apply any methods or criteria, and have regard to any matters, that:
(a)were prescribed for the purposes of subsection 34(2) of the NDIS Act by National Disability Insurance Scheme rules in force immediately before the commencement of Schedule 1 to the amending Act; and
(b)related to the matter mentioned in paragraph 34(1)(f) of the NDIS Act, as in force immediately before that commencement.
The Amending Act made changes to ss 43 and 44 of the NDIS Act, which deal with management of funding for supports under WWWX’s plan. Item 132 of Schedule 1 to the Amending Act provides that the amendments to ss 43 and 44 apply to any person who is a participant on or after 3 October 2024, regardless of when the plan management request was made or when the plan under review came into effect. This means that the Tribunal must consider amended ss 43 and 44 when deciding the management of funding for supports under WWWX’s plan, for the purpose of s 33(2)(d) of the NDIS Act.
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3. Section 4 sets out general principles guiding actions under the NDIS Act.
In relation to children, subsection 5(f) of the NDIS Act states that:
If the person with disability is a child—the best interests of the child are paramount, and full consideration should be given to the need to:
(i) protect the child from harm; and
(ii)promote the child’s development; and
(ii)strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.
Section 33(1) of the NDIS Act requires that a participant’s plan must include the participant’s statement of goals and aspirations prepared by the participant.
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must have regard to several factors including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied the supports are reasonable and necessary.
Section 34(1) of the NDIS Act provides, with respect to reasonable and necessary supports, as follows:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(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.
Section 34(1) is cumulative and therefore all the criteria must be met for each support being sought.
The phrase ‘reasonable and necessary support’ is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency (McGarrigle) [2017] FCA 308, Mortimer J stated as follows:[17]
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).[18] 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”.
[17] McGarrigle at [91].
[18] Section 34(1)(f) has since been repealed by the Amending Act.
Determination of whether a support meets the reasonable and necessary criterion must be made on the basis of probative evidence.[19]
[19] McGarrigle at [93].
Colvin J in Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (Public Trustee of South Australia) (No 2) [2023] FCA 852, decided that there is a two-stage process for a decision-maker to deploy the concept of reasonable and necessary supports in the NDIS Act as a whole.[20] The first stage is to decide whether it is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including the guiding principles set out in s 4 of the NDIS Act. The second stage is for the decision-maker to reach an affirmative state of satisfaction as to each of the criteria set out in s 34(1) of the NDIS Act. Those criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded under the NDIS. As stated by Colvin J, ‘it must follow that there will be instances of supports that will be reasonable and necessary supports for the purposes of that concept as used in the Act which will nevertheless not be funded’.[21]
[20] Public Trustee of South Australia at [17] to [23].
[21] Public Trustee of South Australia at [24].
Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether they are satisfied criteria under s 34(1) are met in respect of a requested support.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Rules), made pursuant to s 35(1) of the NDIS Act, provide further guidance with respect to the assessment of reasonable and necessary supports that will be funded. Section 33(5)(d) requires that the CEO must apply any rules made for the purposes of s 35. Pursuant to s 209 of the NDIS Act, the rules are a legislative instrument and are therefore binding to the Tribunal. Under the Amending Act, the Rules have not been superseded or abolished, and so they continue to apply.
The Tribunal has considered the Operational Guidelines published by the NDIS on its website.[22] These represent government policy and should be applied unless there is good reason not to do so.[23]
[22] National Disability Insurance Scheme (NDIS).
[23] Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[1979] AATA 179; (1979) 2 ALD 634.
The Tribunal, under the provisions of s103 of the NDIS Act, has the power to undertake a review of reviewable decisions made by an NDIA reviewer under s 100(6).
ISSUES FOR DETERMINATION
The issues to be determined by the Tribunal is whether the supports as outlined in paragraph 14 of these reasons, which have not been included pursuant to the decision under review, are reasonable and necessary in accordance with s 34 of the NDIS Act. In deciding whether the criteria in s 34(1) of the NDIS Act are satisfied, the Tribunal must also consider whether the relevant rules, set out above, are met, as required by s 33(5)(d) of the NDIS Act.
A 12-month plan duration is being sought by the Parents. This was not opposed by the Respondent at the hearing.
The Parents request reimbursement of funds expended by them on supports they believe to be reasonable and necessary, and which were not provided in the Applicant’s current plan. The Tribunal will need to determine whether it has the authority to make an order that the Agency reimburse costs incurred by the Parents if it finds that those supports are reasonable and necessary. The Parents indicated at the hearing that despite the provision of 100 hours of support worker funding in the revised SOPS issued following a s 42D remittal, they have largely self-funded the Applicant’s current support worker. They also indicated in their closing submission that funds have already been expended on a number of physiotherapy related consumables, accounting software and an organiser application.
THE HEARING AND THE EVIDENCE
The application was heard by the Tribunal on 17, 19 and 20 June 2024. The hearing occurred in person and by audio visual link. The Parents were not legally represented at the substantive hearing. They received support from disability advocate Mr Buckley. The Respondent was represented by Ms Taggart of Counsel, instructed by Ms Danti of Moray & Agnew Lawyers.
The Tribunal had the benefit of oral opening submissions and written closing submissions from the parties. Written closing submissions were received on 30 August 2024. During the finalisation of these written reasons, the Amended Act commenced and so the parties were requested to provide written submissions as to the effect, if any, of the NDIS Act as amended on this application for review. Final submissions were received 13 November 2024.
The Parents, on behalf of the Applicant, called the following witnesses who gave evidence at the hearing:
(a)Ms WWWX.
(b)Mr WWWX.
(c)OT1, Occupational Therapist.
(d)Dr P1, Paediatrician.
The Respondent called Dr P2, Paediatrician.
The documents before the Tribunal
The Parents filed a Statement of Facts, Issues and Contentions (SFIC) comprising 105 pages dated 4 June 2024 (Exhibit A1).
The Parents also filed a Bundle of Documents with the Tribunal (Exhibit A2) containing the following:
(a)Functional Capacity Assessment Report by ScW1, Senior Social Worker, dated 11 September 2023;
(b)Report by PHY, Sports Physiotherapist, dated 9 August 2023;
(c)Letter from PSY2, Registered Psychologist, dated 25 August 2023;
(d)Support letter from SP2 (Speech Pathologist) and OT2 (Occupational Therapist), dated 25 August 2023;
(e)Email from Ms G, Manager Early Years, WA Inclusion Agency, dated 15 August 2023;
(f)A Child and Adolescent Health Service clinical handover form from RN, Registered Nurse, dated 6 September 2023;
(g)Caregiver Burden Scale by Mr WWWX (undated and unsigned) filed 12 September 2023;
(h)Carer Impact Statement by Mr WWWX, unsigned, dated 27 August 2023;
(i)Caregiver Burden Scale by Ms WWWX (undated and unsigned) filed 12 September 2023;
(j)Letter from Ms M, Parenting Service Coordinator, Cockburn Parenting Service (undated) filed 12 September 2023;
(k)Letter from SpW, Support Worker, dated 5 September 2023;
(l)Primitive Reflex and Pain Perception Report by OT1 (undated), from an assessment conducted on 29 August 2023;
(m)PEDI-CAT Comparison Letter by OT1 (undated), from an assessment conducted on 15 November 2022 and 7 August 2023;
(n)Sensory Profile 2 Summary Report by OT1, dated 28 July 2023;
(o)Speech Therapy Progress Report by SP3, Senior Speech Pathologist, dated 7 September 2023;
(p)The Parents written statements in response to the Respondent’s Statement of Issues, filed 12 September 2023;
(q)Email from Ms N, Team Leader Swim School, dated 11 September 2023;
(r)An outline of the family’s weekly schedule, filed by the Parents 12 September 2024;
(s)Child Development Service Referral Form, dated 11 July 2023;
(t)Ages & Stages Questionnaires Social Emotional, 12 month questionnaire, dated 22 June 2022;
(u)Child Development Service Plan, dated 6 July 2022;
(v)Referral to Early Childhood Partners, dated 14 July 2022;
(w)Ages & Stages Questionnaires Social Emotional, 18 month questionnaire, dated 13 February 2023;
(x)Vineland-3 Adaptive Behaviour Scale administered by ScW, Senior Social Worker, test date 7 August 2023; and
(y)PEDI-CAT Report, dated 7 August 2023.
The Parents filed a second Bundle of Documents with the Tribunal (Exhibit A3) containing the following:
(a)Autistic Spectrum Disorder Diagnostic Assessment, Speech Pathology Report by SP1, Principal Speech Pathologist, assessment date 11 July 2023;
(b)Autistic Spectrum Disorder Diagnostic Assessment Report, Psychology Assessment by PSY1, Senior Clinical Psychologist, dated 9 October 2023;
(c)Email from the Parents and their written statements in response to the Respondent’s Statement of Issues, filed 13 October 2023;
(d)Support Coordinator Requirements document by ScW1, Senior Social Worker, (undated) filed13 October 2023;
(e)Letter from Dr P1, Neurodevelopmental Paediatrician, dated 25 October 2023;
(f)Email from SP3, Senior Speech Pathologist, dated 30 October 2023;
(g)NDIS Requested Supporting Evidence for Specialised Play Equipment report by OT1, Occupational Therapist, (undated) filed 1 November 2023;
(h)NDIS Requested Support Evidence for Supported Transition to Childcare report by OT1, Occupational Therapist, (undated) filed 1 November 2023;
(i)Email from the Parents regarding In Home Care (with attachments regarding application, waitlist information and quote), dated 5 December 2023;
(j)Carer Impact Statement by Ms WWWX, dated 16 December 2023;
(k)Report from Dr P1, Neurodevelopmental Paediatrician, dated 18 March 2024;
(l)Letter from OT1, Occupational Therapist, dated 26 March 2024;
(m)Report from DT, Dietician and Lactation Consultant, dated 23 May 2024;
(n)Report of PD, Sports Podiatrist, dated 9 May 2024; and
(o)Carer Impact Statement by Ms WWWX dated 17 May 2024.
The following publications were also contained within the Applicant’s third Tender Bundle (Exhibit A3), entitled:
(a)A review article from the medical literature: Murray KJ. Hypermobility disorders in children and adolescents. Best Practice & Research Clinical Rheumatology 2006; 20(2): 239-351;
(b)“Principles to Determine the Responsibilities of the NDIS and Other Service Systems”;
(c)“National Disability Insurance Scheme Pricing Arrangements and Price Limits 2023-24”;
(d)“Practice Guide – Determine Reasonable and Necessary Supports” (NDIS Practice Guide);
(e)“Your Guide to Self-management” (NDIS Guide);
(f)“National Guideline – For supporting the learning, participation, and wellbeing of autistic children and their families in Australia” (Autism CRC);
(g)“Reasonable and Necessary Support across the Lifespan: An Ordinary Life for People with Disability” (Report of the Independent Advisory Council to the NDIS);
(h)“Consultation paper: Interventions for children on the autism spectrum” (NDIS);
(i)“National Guidelines – Best Practice in Early Childhood Intervention” (Early Childhood Intervention Australia);
(j)“Childhood Education and Care, Australia - Information on children aged 0-12 years and their families, including use of formal and informal care, Reference period June 2017” (hyperlink to the Australian Bureau of Statistics website); and
(k)“Early intervention for autism/ASD and NDIS costs” (hyperlink to Autism Aspergers Advocacy Australia website).
The Respondent lodged the following documents with the Tribunal:
(a)Respondent’s Statement of Facts, Issues and Contentions (SFIC) comprising 10 pages, dated 8 May 2024 (Exhibit R1);
(b)Terms of Agreement Remittal under s42D of the AAT Act, dated 18 March 2024 (Exhibit R2);
(c)Remittal Decision, dated 19 March 2024 (Exhibit R3);
(d)NDIS Participant Plan, dated 4 April 2024 (Exhibit R4);
(e)Report of Dr P2, dated 4 March 2024, with accompanying curriculum vitae and briefing letter, dated 13 February 2024 (Exhibit R5);
(f)Supplementary report of Dr P2 with briefing letter, dated 5 June 2024 (Exhibit R6);
(g)A review article from the medical literature identified within the supplementary report of Dr P2: Novak I & Honan I. Effectiveness of paediatric occupational therapy for children with disabilities: A systematic review. Australian Occupational Therapy Journal 2019; 66: 258-273 (Exhibit R6A); and
(h)The T-Documents (T1-T33, pages 1 to 199) provided under s 37 of the then AAT Act by the Respondent after the application for review was made. It comprises evidence provided by the Parents to the Respondent and other documents available to the NDIA Internal Reviewer at the time of their decision (Exhibit R7).
The Tribunal has considered all the written evidence provided in the evidence bundles, the oral evidence provided at the hearing and the parties opening and closing submissions. I will refer to evidence in my decision that was specifically relied upon by a party or that in my view is directly relevant to the determination of this matter.
Some initial considerations regarding the Respondent’s medical expert
In their closing submission, the Parents made several arguments regarding the credibility of Dr P2, the expert medical witness called by the Respondent. It is prudent for the Tribunal to address this matter at the outset because the Tribunal has formed the view that Dr P2 is suitably qualified to give independent expert evidence and that the evidence he provided was credible.
Only those concerns raised by the Parents that may have relevance to the credibility of the witness will be considered here.
Firstly, the Parents submit that Dr P2 misinterpreted the diagnostic information by ‘repeatedly’ referring to the Applicant’s diagnosis as ‘provisional’, suggesting inadequate review of the documents provided to him, three of which were reports documenting a diagnosis of ASD level 3.[24] Dr P2 has mentioned the diagnosis as provisional on one occasion in each of the two reports he submitted. Whether this was his conclusion, or an error was not put to Dr P2 at the hearing, other than to confirm that is what he had written.[25] The Applicant’s diagnosis has evolved over time from one that was provisional to one that received confirmation following further assessments. While Dr P2 did state at the hearing that the Applicant appeared to have a more emotional presentation than is typical in children with ASD level 3,[26] the evidence does not suggest Dr P2 has disputed the diagnosis of ASD level 3 or misinterpreted it in some way. The Tribunal is satisfied that Dr P2 did not misinterpret the diagnostic evidence.
[24] Applicant’s Closing Submission at [61b].
[25] Transcript, 20 June 2024, page 146.
[26] Transcript, 20 June 2024, page 147.
Secondly, the Parents argue that Dr P2 did not directly examine or assess the Applicant.[27] Dr P2 did not personally assess the Applicant as his parents had objected to the assessment. While not having the opportunity to directly assess the Applicant places certain limitations on the clinical formulation and recommendations based solely on documentary evidence, this does not of itself constitute a lack of credibility of an expert witness. Dr P2 performed the task he was instructed to do by the Respondent, that is to provide an expert opinion based on a review of the documentary evidence.
[27] Applicant’s Closing Submission at [61g].
The Parent’s objection to Dr P2 personally assessing the Applicant was in part concerning further delays, stating they had previously been told an independent examination was not required and that expert evidence already submitted had come from a range of clinicians not just one individual.[28] Nevertheless, the objection to an independent medical assessment does raise some concern for the Tribunal in terms of the objectivity of the recommendations from clinicians involved in the Applicant’s care with regards to any potential conscious or unconscious predilection towards advocacy.
[28] TB, A3, page 104.
In the Applicant’s SFIC,[29] the Parents put forward the Tribunal’s decision in Castledine and National Disability Insurance Agency (Castledine) [2019] AATA 4240. The Parents have not indicated what determination of the Tribunal they are requesting with regards to Castledine. It would appear to the Tribunal that they are raising a circumstance in a previous decision of the Tribunal where the evidence of those professionals who had personally examined the Applicant was given preference over the Respondent’s witness who had not done so. This has some relevance to the issue raised by the Parents concerning Dr P2 not having examined the Applicant. In Castledine, Member Parker (now Senior Member) preferred the evidence of the qualified and practising therapists (speech therapist, occupational therapist and psychologist) who had met and interacted with Mr Castledine and his carers[30] as opposed to the Respondent’s witness who had not ever been present with Mr Castledine before making her recommendations.[31] The Tribunal is not bound by previous decisions of the Tribunal. In Castledine the Tribunal was faced with a distinct set of circumstances whereby the Respondent’s witness was a director of complex support strategy with the Agency and was neither a speech therapist nor an occupational therapist.[32] The situation in this review is quite different in that both Dr P1 and Dr P2 are practicing paediatricians. The Tribunal is of the view that both Dr P1 and Dr P2 have the necessary qualifications and experience to provide evidence at this hearing in assisting the Tribunal. While different weight may have been afforded to their evidence, the Tribunal found that both medical experts gave sound and credible evidence.
[29] TB, A1, p 16 at [46].
[30] Castledine at [295].
[31] Castledine at [294].
[32] Castledine at [293].
Thirdly, the Parents submit that Dr P2 made inconsistent statements about his research into a capacity building hub for neurodiverse children that the Applicant has recently been attending and therefore displayed a lack of due diligence.[33] The capacity building hub was mentioned by Ms WWWX in her latest carer impact statement dated 17 May 2024 but the details about this hub were not revealed to the Tribunal or the Respondent until provided in oral evidence. Dr P2 indicated that he had done a ‘Google’ search to find out about this facility after having been presented a copy of Ms WWWX’s latest carer impact statement.[34] He stated he had not heard of this service before and did not research it in any detail. Dr P2 would not be required to comment on whether any of his opinions had changed until such evidence was presented to him. This occurred at the hearing under re-examination by Counsel.[35] Dr P2 provided his expert opinion considering this new evidence. The Tribunal does not agree that this constitutes a lack of credibility on the part of the witness.
[33] Applicant’s Closing Submission at [61l-m].
[34] Transcript, 20 June 2024, page 166.
[35] Transcript, 20 June 2024, pages 166-167.
Lastly, the Parents submit that Dr P2 was ill prepared in providing evidence in a case where hypermobility was, in their view, a central issue. They state that Dr P2 was unable to explain ‘how hypermobility is measured without resorting to searching for information during a break’.[36] The evidence does not support this interpretation. Dr P2 mentioned that there was a scoring system used for which he has an application on his phone but was having a ‘mental block’ regarding the name of the measure. Prior to Dr P2 being briefly withdrawn from the hearing (so that the Tribunal could discuss an issue relating to the cross examination), he stated: ‘it’s come back to me, Beighton Score. Sorry, it just dropped out of my mind’.[37] The Tribunal’s view is that this was a brief lapse of memory on the part of Dr P2 and does not constitute ‘serious doubts about his expertise…’.[38]
[36] Applicant’s Closing Submission at [61n].
[37] Transcript, 20 June 2024, page 150.
[38] Applicant’s Closing Submission at [61n].
The Tribunal does not accept that Dr P2 lacked credibility as an expert witness.
The Tribunal does acknowledge that the Applicant’s Parents were not legally represented and found that they attended their task at the hearing conscientiously. They impressed as strong advocates for their son and his long-term health and emotional well-being.
REASONABLE AND NECESSARY SUPPORTS
Is an increase in support worker hours a reasonable and necessary support?
Evidence of WWWX
Ms WWWX submits that were it not for the Applicant’s significant difficulty separating from her that he would be in daycare and she would have returned to work in her professional area for which she holds both undergraduate and postgraduate qualifications.[39] She indicated that she had planned to return to work when the Applicant was 4 months old.[40] She states that she has been unable to pursue her career goals and that the lack of her income has been placing significant financial burden on the family. Although she would prefer to return to full time employment, a support worker for 25 hours per week will enable a program for transitioning the Applicant into early childhood care to be implemented. Recently, Ms WWWX has returned to working approximately 15 hours per week but states she will still need to return to a 25 hour per week schedule in the immediate future.[41] During cross examination at the hearing Ms WWWX confirmed that the 25 hours per week was associated with the hours she was looking to work.[42]
[39] TB, A3, pages 34-35; TB A1, page 7.
[40] TB, A3, page 34.
[41] TB, A3, page 119.
[42] Transcript, 17 June 2024, page 47.
The Parents are also requesting funding for a support worker to provide respite for five hours on a Sunday.
In her carer impact statement dated 21 May 2023, Ms WWWX described the difficulties her son has experienced in separating from her where the maximum period he had tolerated was 45 minutes.[43] Once that tolerance was breached she reported him going into an ‘epic autistic meltdown’[44] that can last between 30 to 90 minutes.[45] During these periods he has hurt himself, such as by banging his head on walls and concrete floors, and has hurt others by biting and headbutting.[46]
[43] TB, R7; T-documents, T8, page 64.
[44] TB, R7; T-documents, T8, page 64.
[45] TB, A3, page 104.
[46] TB, R7; T-documents, T8, page 64.
It took until he was four months of age before the Applicant was able to tolerate his father holding him.[47]
[47] TB, R7; T-documents, T16, page 92.
Ms WWWX describes his rigidity in not performing tasks, such as eating and toileting, without a set sequence or without her approval.[48]
[48] TB, A3, page 104.
In her carer impact statement dated 16 December 2023, Ms WWWX states that the Applicant is unable to sleep without being with his mother and requires heavy electronic music playing which disrupts his parents sleep.[49] She reports that despite her efforts to wean from breast feeding, he will experience emotional dysregulation during the night and tear her top. When breastfed he will, ‘at least every other day’, bite and not release causing broken skin and bleeding nipples.[50]
[49] TB, A3, page 104.
[50] TB, A3, page 104.
At the hearing, Ms WWWX confirmed that the Applicant’s dysregulation continues to occur at night.[51]
[51] Transcript, 17 June 2024, page 38.
Ms WWWX states that because of the Applicant’s problem separating from her, he has been unsuccessful in accessing daycare despite trying four different centres and varying transition support hours provided by her.[52] She has reportedly been asked by childcare providers for the Applicant to have a period of absence from continued trials of transition due to his levels of distress.[53] ‘They explicitly say that they can’t care for his high needs…’.[54]
[52] TB, R7; T-documents, T16, page 92.
[53] TB, R7; T-documents, T8, page 88.
[54] TB, R7; T-documents, T8, page 64.
With regards to daycare options that have been trialled by the Applicant, his mother states:[55]
One day care asked [the parents] not to bring him back because his meltdowns cause distress for the other children and the staff because seeing him in such distress. That his behaviours [are] a safety and security risk for the daycare on a liability level (due to the severe headbanging until he bleeds in that state, as well as the destruction he causes). That [the parents] continuing trying is neglect.
[Ms WWWX] has sat at the daycare for full days, half days, part days, one week for an hour every day, then two weeks of two time a week. We have done drop and go. We have tried leaving him to cry. He screams so much that he passes out, only to wake and continue his meltdown. We have taken breaks as suggested by the treating team, we have done everything that has been suggested. Further to that each time it exacerbates the anxiety of [WWWX] to separate from [Ms WWWX] thereafter…
[55] TB, A2, page 122.
At the hearing, Ms WWWX stated that because of these failed daycare placements and certain Centrelink requirements, the Parents had unenrolled the Applicant from daycare three weeks prior.[56]
[56] Transcript, 17 June 2024, page 32.
The Parents report that following consultation with stakeholders including the Applicant’s treatment team and early childhood educators, his difficulties accessing daycare were conceptualised as a social model of disability.[57] They therefore assert that to overcome his accessibility barriers, he will need to be assisted in learning to communicate and emotionally regulate with other individuals who are not his parents and in adapting to change and transition. His parents highlight that this process will need to be provided by someone other than his primary care givers, with the aim being for the Applicant to increase his capacity to tolerate 25 hours per week in a graduated manner.
[57] TB, A2, page 122.
With regards to this stepwise approach, the Parents reported on the Applicant’s current progress in documents filed with the Tribunal on 12 September 2023 as follows:[58]
Currently [WWWX] has built some capacity with the Support Worker to 4 hours in home with his primary caregiver on site but in a separate room and 1.5 hours outside the home. This will be continuing to be built until he is able to sustain 5 days of 5 hours separate from his primary caregiver and out of home.
[58] TB, A2, page 122.
In her most recent carer impact statement dated 17 May 2024,[59] Ms WWWX provided a further update of the Applicant’s progress. In the context of his older brother commencing daily at a capacity building hub for neurodiverse children (the Hub), Ms WWWX had been able to have the Applicant attend with her. She states that during this time she has observed the Applicant to ‘flourish in language, engagement and participation’.[60] Following negotiations with the facility, the Applicant was granted an exemption to enrol despite his age being below that normally required. Ms WWWX states that she would have preferred this trial to have commenced with a daycare provider but that the Hub was the only service willing to make the accommodation.[61] By mid-April 2024, the Applicant was consistently being able to separate from his mother while exiting the home with a support worker. He is now attending the Hub two days per week for four hours per day with the support worker. In Ms WWWX’s opinion, the plan established by the Applicant’s Occupational Therapist is working.[62] The Parents are currently paying the additional cost of this number of support worker hours, beyond that provided in the 100 hours per year of specialised home-based support in his revised SOPS, and are seeking reimbursement of funds expended.
[59] TB, A3, pages 119-121.
[60] TB, A3, page 119.
[61] TB, A3, page 120.
[62] TB, A3, page 120.
At the hearing Ms WWWX explained that the Hub is staffed by a combination of teachers and therapists with the focus being on capacity building.[63] The current age range at the Hub was between five and seventeen years.[64] Due to the requirement for a carer to be present for each child, Ms WWWX will be in attendance but not actually physically present with the Applicant and his support worker.[65] If his older brother is settled, she will be able to work remotely from a downstairs café. There are times when the Applicant's older brother does not attend the Hub and Ms WWWX will remain at home with him while the Applicant attends the Hub with his support worker.[66]
[63] Transcript, 17 June 2024, page 30.
[64] Transcript, 17 June 2024, page 31.
[65] Transcript, 17 June 2024, page 31.
[66] Transcript, 17 June 2024, page 31.
Ms WWWX explained that with this particular support worker, the Applicant is able to separate well from her to the support worker and then from the support worker to one of the mentors at the Hub, but he still does not separate well from Ms WWWX to a mentor.[67] The Applicant has also been able to separate from the support worker for short periods of time while at the Hub. They have not trialed longer periods of separation due to the requirements for a carer to be present with the child.[68] Ms WWWX would prefer trialing longer periods of separation from the support worker in a daycare setting and that accessing inclusion support services would be part of that plan.[69] She noted that her understanding is that the purpose of inclusion supports is not for behavioural management but rather to assist with educational needs, and so would not currently be available to the Applicant.[70]
[67] Transcript, 17 June 2024, page 31.
[68] Transcript, 17 June 2024, page 32.
[69] Transcript, 17 June 2024, pages 32 & 34.
[70] Transcript, 17 June 2024, page 34.
Ms WWWX stated that the Applicant has reached a stage of being able to separate from her for up to eight to nine hours over two consecutive days with the assistance of his support worker. She explained that extending the amount of separation beyond this leads to consequences such as ‘clinging to me, not letting me out of his sight, sitting on my foot, not letting me be able to walk’.[71]
[71] Transcript, 17 June 2024, page 33.
During cross examination, Ms WWWX confirmed that the Applicant has also developed to a point where he can tolerate separation from his mother in various therapy settings and during one on one swimming lessons, providing she is somewhere in the vicinity, even if he can't see her.[72]
[72] Transcript, 17 June 2024, page 44.
It was put to Ms WWWX that the requested 25 hours per week of support worker time far exceeded the current number of hours the Applicant was actually able to separate from her. Ms WWWX stated that much of that was because the Parents were self-funding the hours and that nine hours was all they could afford.[73] When asked if this meant that the Applicant could tolerate more than nine hours of separation over two days, Ms WWWX explained that he could not currently achieve 25 hours per week but that would be the aim of the phased plan. She viewed this process occurring in two streams and stated: [74]
What I actually foresee is … him separating from me in the home, working towards him separating from in the home up to 25 hours, and transitioning to day care for 24 [sic] hours, and we want to work this as a symbiotic relationship. What I mean with that is seeing how well WWWX does with the nine hours at [the Hub]. If I had the – if I know I had the backing of the funds, I would actually move that across to a day care now and keep working on him separating from me at home up to 25 hours and then up his day care. So as he’s ready for either of these ones, we push him, and as he’s ready, we push him.
[73] Transcript, 17 June 2024, page 47.
[74] Transcript, 17 June 2024, page 48.
In terms of other informal supports available to the Applicant, his paternal grandparents live next door. His grandmother has reduced ability to provide support due to her health issues relating to arthritis and his grandfather works full time in addition to providing care for his wife.[75] At the hearing, Ms WWWX stated that the Applicant’s ability to separate from her to his grandparents is ‘a bit hit and miss…[m]ore often than not I need to be on the premises somewhere…’.[76]
[75] TB, A2, page 11.
[76] Transcript, 17 June 2024, page 45.
The Parents report that there are very limited informal supports available to the Applicant and that the significant care required by him has caused carer burnout. As a result, they have struggled to maintain friendships or expand their community support network. They submit that providing extra funding for a support worker ‘will enable the family to progressively form and deepen their connections within their local community. This will expand the availability of informal supports to the Applicant and his family in the longer term’.[77]
[77] TB, A1, page 26 at [79].
Perram J, in deciding the appeal stated the following with regards to Rule 5.1(d):[445]
Paragraph 5.1(d) is contained in a legislative instrument. The expression ‘day-to-day living costs’ is not defined in that instrument, nor does it bear a technical meaning. Thus, it bears its ordinary meaning. According to the Macquarie Dictionary, the ordinary meaning of ‘day-to-day’ is ‘ordinary; happening every day’. Perhaps the word ‘everyday’ captures these two concepts. The ordinary meaning of ‘living costs’ is those expenses which are incurred in the course of living for the purpose of living. Thus ‘day-to-day living costs’ are those everyday expenses which are incurred in the course of living for the purpose of living. This meaning is confirmed by the examples which appear in brackets in paragraph 5.2(d) – ‘rent, groceries and utility fees’ – which are canonical examples of day-to-day living costs.
The costs of engaging an agent to sell one’s home, the costs of moving from one home to another, conveyancing fees and the payment of stamp duty on the conveyance of a new home are not everyday costs which are incurred in the course of living for the purpose of living. To the contrary, they are extraordinary expenses to which not everyone has the good fortune to become liable and which, even amongst those who are that fortunate, can scarcely be described as ‘day-to-day’ costs.
[445] Warwick at [14]-[15].
The Tribunal does not consider a digital organiser application and accounting software to fall under the definition of a day-to-day living expense as explained by Perram J. Even individuals without a disability would not normally purchase such items for the purpose of living. They may purchase them to assist with managing their appointments and making it easier to keep track of their finances and expenditure.
With regards to the new Transitional Rules, the Parents dispute the Respondent’s contention that item 2(k) is enlivened in their case. Relevantly, Schedule 2 item 2(k) relates to day-to-day living costs with respect to finance and payments, and provides the following description: ‘business development costs and business skills development costs, including company registration, book-keeping, accounting services or software’. The Tribunal agrees with the Parents position that item 2(k) relates to business development and business skills development costs. The Tribunal is persuaded that the Parents are requesting this support not for business development costs but to assist them in managing the Applicant’s Plan and supports.
Having regard to the objects and principles of the NDIS Act as a whole, it is reasonable to conclude that paying for supports to assist with the task of self-managing NDIS funds and supports, such as those proposed by the Applicant’s Parents, could be considered reasonable and necessary.
Whether the accounting software and digital organiser application should be specifically funded in the Applicant’s plan is dependent on the mandatory criteria in s 34(1) of the NDIS Act being met.
The Tribunal accepts that such supports would assist the Parents to budget, organise appointments and reduce some of the administrative burden placed on them in managing the Applicant’s plan. However, the Tribunal finds that the Parents have been able to demonstrate effective management of the Applicant’s plan and have the capability and professional skill required to manage funds, keep records and spend funds to purchase supports that work best for the Applicant. The evidence establishes that Ms WWWX has accounting and financial qualifications that provide her the necessary skills to undertake the tasks required for the management of the Applicant’s NDIS funds. The accounting software and digital organiser application would likely reduce some of the time pressures on the Parents. Nevertheless, the available evidence does not suggest that the absence of these supports would impair their ability to adequately manage the Applicant’s funds and organise his therapies. The Tribunal acknowledges that utilising a plan manager may be costlier than the requested support, however, plan management is not what is being sought by the Parents.
Considered overall, the Tribunal is not satisfied that the accounting software and digital organiser application represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support. Accordingly, s 34(1)(c) is not met.
As s 34(1) is cumulative, the Tribunal does not need to consider the remaining criteria.
Reassessment date
The parties are agreed that any plan should be of a 12-month notional duration.
The Applicant’s original plan was for a 24-month duration. The Tribunal agrees that a plan duration of 12-months is appropriate. This outcome of this application provides for supports that must be monitored, and the Applicant’s progress reported upon, so that future plans have evidence on which to base his ongoing supports.
In the Applicant’s SFIC, the Parents seek a decision by the Tribunal that the Respondent is not to review the Applicant’s plan during the 12-month duration of the plan unless requested by the Applicant. This is a decision the Tribunal does not have jurisdiction or legal authority to make. The legislation permits the CEO to vary a participant’s plan (s 47A(2) of the NDIS Act) or to conduct a ‘reassessment of the participant’s plan at any time…on the CEO’s own initiative’ (s 48(1) and (2) of the NDIS Act). It is noted that under s 49B of the NDIS Act, the CEO must not conduct a reassessment of an old framework plan if the participant has been given notice under s 32B(2) that the participant is to have a new plan.
Plan management
The Tribunal has considered the amended ss 43 and 44 of the NDIS Act and is satisfied that the management of funding for reasonable and necessary supports under the Applicant’s plan should remain self-managed.
Reimbursement of funds
The Parents request that they be able to be reimbursed for reasonable and necessary supports they have funded independently.[446] A submission on this issue was not made by the Respondent.
[446] TB, A1, page 99 at [477].
The decision under review relates to the Applicant’s NDIS plan that was in place at the time of the s 100(6) internal review decision dated 15 June 2023. The internal review decision confirmed the original decision of the CEO of the Respondent to approve a SOPS dated 22 February 2023 under s 33(2) of the NDIS Act (the original plan).
The Tribunal decides that the supports identified in this decision as reasonable and necessary should have been included from the start date of the Applicant’s original plan dated 22 February 2023, a date preceding the Applicant’s revised SOPS as remade under s 42D of the AAT Act.
The issue now is whether the Tribunal has the authority to order the Agency pay for supports now found to be reasonable and necessary which were not included in the Applicant’s 22 February 2023 plan, and for which the Parents have funded themselves.
The Tribunal notes the recent Tribunal decision of TRCH and National Disability Insurance Agency (TRCH) [2024] AATA 2918 where Member Bubutievski was faced with a similar request. Member Bubutievski referred to the decision of Deputy President Forgie in XXWC by his mother and National Disability Insurance Agency (XXWC) [2020] AATA 923 in which the Deputy President decided that she could not make the order that the decision affecting XXWC’s rights was the decision by the CEO to approve a SOPS.
As referred to in TRCH,[447] Deputy President Forgie in XXWC explained with respect to the decision to approve a SOPS that:
It is the operative decision that affected XXWC’s rights. It is not the decision made by the reviewer for the decision simply confirmed the CEO’s decision that was already operative.
Once an Applicant has lodged an application for review of a decision, the Tribunal has power to review that decision…
For the purposes of reviewing a decision, the Tribunal “... may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.” This is subject to any qualification made by the enactment conferring the right to make an application for review of a decision. The CEO’s powers in deciding whether to approve, or not approve, a statement of participant supports under s 33(2) of the NDIS Act must be made having regard to criteria set out in provisions such as ss 33(5), 34 and 35….
There is nothing in the scope of the decision that must be made or in the matters, to which regard must be had, that deals with payment of supports approved in a statement of participant supports. That means that payment is not a matter within the scope of the Tribunal’s power to review. I would also note that decisions about payment are not specified as reviewable decisions in s 99 of the NDIS Act. As I cannot review any decisions about payment, I have no power to order that any amount of XXWC’s parents’ expenditure be reimbursed. That is not to say that the Agency itself does not have power to reimburse XXWC’s parents for monies they have expended on EIBI but what it requires to authorise reimbursement is a matter for it and its auditors.[448]
(Emphasis added)
[447] TRCH at [108].
[448] XXWC at [121]-[124].
In TRCH, Member Bubutievski similarly found that the Tribunal did not have the power to order the Agency reimburse funds expended for support work, even though she found the increased supports to be reasonable and necessary. She explained further that:[449]
…the Agency still has the power to pay outstanding invoices or reimburse Ms TRCH. What it requires to authorise such payment is a matter for the Agency and its auditors... The Agency will need to make a decision about the reimbursement or funding of these expenses on the basis that this Tribunal has found that it has been reasonable and necessary for TRCH to be provided with holiday care and STA …
[449] TRCH at [109].
As formerly mentioned, the decision of a previous Tribunal is not binding on the current decision. Having said that, the Tribunal is persuaded by the findings in XXWC and TRCH and considers this to be the correct approach.
It is open for the Parents to seek payment from the Agency for the reimbursement of funds expended by them on supports based on the finding of reasonable and necessary supports in this decision, in accordance with the relevant NDIS pricing policy. This is a decision the Agency will need to make.
CONCLUSION
The Tribunal is satisfied that the following supports are reasonable and necessary:
(a)52 hours per 12 months of occupational therapy plus 26 hours of therapist travel time and two hours of report writing;
(b)52 hours per 12 months of speech therapy plus five hours of therapist travel time and two hours of report writing;
(c)Four hours per 12 months of dietician services plus two hours report writing;
(d)An amount of $6,045.06 for the Therapy Group Program;
(e)One-on-one swimming gap fee of $715.00;
(f)14.5 hours of support coordination (level 2);
(g)The funding of a comprehensive assessment by a suitably qualified allied health practitioner to provide a proposed plan for the developmentally appropriate graduated transition of the Applicant being able to separate from his mother and access an age-appropriate early childhood care or education facility. The plan is to include a proposal on the number of hours of weekday support worker assistance most likely to be required over a 12-month period that considers the graduated nature of the transition, environmental changeovers and the subsequent withdrawal of support worker hours. The number of weekday support worker hours should be provided accordingly in the statement of participant supports, having had regard to this assessment and the findings of the Tribunal in this decision at paragraphs 167 to 227.
DECISION
Pursuant to s 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside and remitted for reconsideration in accordance with directions that:
(a)The statement of participant supports specifies that the reasonable and necessary supports include:
(i)52 hours per 12 months of occupational therapy plus 26 hours of therapist travel time and two hours of report writing;
(ii)52 hours per 12 months of speech therapy plus five hours of therapist travel time and two hours of report writing;
(iii)Four hours per 12 months of dietician services plus two hours report writing;
(iv)An amount of $6,045.06 for the Therapy Group Program;
(v)One-on-one swimming gap fee of $715.00;
(vi)14.5 hours of support coordination (level 2);
(vii)Fund a comprehensive assessment by a suitably qualified allied health practitioner to provide a proposed plan for the developmentally appropriate graduated transition of the Applicant being able to separate from his mother and access an age-appropriate early childhood care or education facility. The plan is to include a proposal on the number of hours of weekday support worker assistance most likely to be required over a 12-month period that considers the graduated nature of the transition, environmental changeovers and the subsequent withdrawal of support worker hours. The number of weekday support worker hours should be provided accordingly in the statement of participant supports, having had regard to this assessment and the findings of the Tribunal in this decision at paragraphs 167 to 227. Once the support worker hours have been established, they would replace the current funding for Core Supports specialised home based assistance for a child in the current plan.
(b)The supports listed in paragraphs (a)(i) and (a)(ii) above replace the Applicant’s existing funding for Improved Daily Living, except for the amount of $3,522 of additional psychology supports provided in the statement of participant supports dated 4 April 2024.
(c)All other reasonable and necessary supports in the Applicant’s existing statement of participant supports, excepting any one-off assistive technology supports already used, are to be provided pro-rata from the date on which the supports specified above are included in the Applicant’s statement of participant supports until the reassessment date.
(d)The date by which the Respondent must reassess the Applicant’s plan is to be 12 months after the date on which the supports in paragraph (a) are included in the Applicant’s statement of participant supports. The management of funding for reasonable and necessary supports under the Applicant’s plan should remain self-managed.
(e)The Respondent is to determine the appropriate mechanism for the reimbursement of funds expended separately by the Parents for any of the supports listed in paragraph (a).
475. I certify that the preceding 474 (four hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of General Member K Dodd
.............[Sgd]..................................
Associate
Dated: 5 December 2024
Date(s) of hearing: 17, 19 and 20 June 2024 Applicant:
Advocate for the Applicant:
Self-represented
Mr B Buckley, Autism Aspergers Advocacy Australia
Counsel for the Respondent: Ms C Taggart Solicitors for the Respondent: Ms A Danti of Moray & Agnew
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