SZWV and National Disability Insurance Agency
[2022] AATA 2973
•12 September 2022
SZWV and National Disability Insurance Agency [2022] AATA 2973 (12 September 2022)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/7049
Re:SZWV
APPLICANT
AndNational Disability Insurance Agency
RESPONDENT
Decision
Tribunal:Member I Thompson
Date:12 September 2022
Place:Adelaide
The decision under review made by the Agency on 8 September 2021 is set aside pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and in substitution the Tribunal decides:
Funding a Mollii Suit for the applicant, SZWV, in the sum of $10,500, is a reasonable and necessary support which is to be funded under the National Disability Insurance Scheme.
...............[Sgnd].......................................
Member I Thompson
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of participant supports – reasonable and necessary supports – applicant sought review of statement of participant supports – request for funding for a Mollii Suit – decision set aside
Legislation
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
McGarrigle v National Disability Insurance Agency [2017] FCA 309
National Disability Insurance Agency v WRMF [2020] FCAFC 79
McCutcheon v National Disability Insurance Agency [2015] AATA 624
TKCW v National Disability Insurance Agency [2014] AATA 501
QTBR & National Disability Insurance Agency [2021] AATA 1951
McLaughlin & National Disability Insurance Agency [2021] AATA 496
REASONS FOR DECISION
Member I Thompson
12 September 2022
INTRODUCTION
The Applicant, SZWV, is a young participant in the National Disability Insurance Scheme (NDIS), which is administered by the Respondent, the National Disability Insurance Agency (the Agency). He resides with his parents and brother and sister. His mother advocated for him at the hearing. Aged 11, he has neurofibromatosis (NF1) and other issues which affect his health and wellbeing. NF1 is a genetic condition resulting in the formation of benign tumours affecting the nerves or skin. As a result of this condition, he has vision and speech impairments, reduced fine and gross motor skills, decreased muscle strength and reduced balance and coordination. He has undergone multiple surgeries to remove tumours.[1]
[1] Exhibit 11, p 436
As part of his therapy, SZWV was using a device called a Mollii Suit, which the Agency approved and funded for a trial period. The funding was discontinued following the trial and a request was made for an internal review of that decision. The request was not successful and SZWV stopped using the suit. In its explanation for declining the internal review request, the Agency review officer referred to criteria in the legislation and highlighted lack of available research and an evidence base for use of the Mollii Suit for people with NF1. Although SZWV’s occupational therapist had reported benefits, the review officer concluded that there was: “insufficient evidence of the formal outcome measures to show how the use of the suit will be more effective and beneficial in the short and long-term than currently funded capacity building supports.”[2]
[2] Exhibit 1, p 14
Funding of $ 10,500 is sought for the Mollii Suit.[3] In applying to the Tribunal for a review of the Agency’s internal review decision, SZWV’s mother wrote:
… my son was using a Mollii exopulse suit that had been funded for 5 months by NDIS. During this time we noticed good improvement in my sons stamina, memory, motivation, physical strength, core strength which was great alongside his occupational therapy and physiotherapy. We put in a review to purchase the Mollii Suit outright which was only another 6 months to pay and once you purchased it there are no more ongoing fees, and after already paying for funding for 5 months and myself funding for one month we have already paid 6 months which now that the review was denied seems to be wasted money. We only have a limited time for this 6 month payment to be recognised or we lose our credit and start again. My son has now not had access to the suit for one month and we have already noticed a decline in improvements he had made. We wish to have this decision review as once the suit is purchased outright we would need less support funding for this therapy and money, time and improvements that my son had made not wasted. Letters from physio and occupational therapist are on my child’s NDIS file with backing evidence that we were seeing improvements and that the Mollii Suit was really helpful to develop skills my child is lacking to complete everyday tasks.[4]
[3] Exhibit 13
[4] Exhibit 1, p 10
As this matter concerns a child, the Tribunal made an order at an early stage of the proceedings under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) prohibiting the disclosure of information that might identify him.
The hearing took place by video link. SZWV was represented by his mother, and the Agency was represented by Counsel, Ms Waterhouse. SZWV’s mother and his occupational therapist gave oral evidence. The Agency called evidence from a paediatric neurologist. Numerous documents, reports and letters were received in evidence.
ISSUES
The Tribunal must determine whether the requested support is reasonable and necessary pursuant to s 34 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). The support requested for SZWV is funding for a Mollii Suit.
CONTENTIONS
The basis of SZWV’s mother’s case is that the evidence of the occupational therapist and the physiotherapist confirm that her son was experiencing improvements when he was using the Mollii Suit and those improvements assisted him in development of skills that are necessary to undertake age-appropriate everyday tasks. Therefore, the Tribunal should decide to agree to the request for funding the Mollii Suit.
In its statement of facts, issues and contentions, the Agency submitted that the evidence about the Mollii Suit is insufficient for the Tribunal to be positively satisfied of all of the criteria in section 34(1)(a)-(f) of the NDIS Act regarding the funding or provision of reasonable and necessary supports. Secondly, it was submitted that if the Tribunal considers that there is sufficient evidence that the Mollii Suit meets the criteria for a reasonable and necessary support, there is a residual discretion which the Tribunal should exercise to refuse the support because the long-term safety of the suit is not established and is not supported by scientific testing.
On behalf of the Agency, it was contended that SZWV’s occupational therapist and physiotherapist lacked expertise and specialised knowledge about the Mollii Suit and its impact. In contrast, the Agency had obtained an opinion from a paediatric neurologist which, it was submitted, the Tribunal should accept. The neurologist considered there was an insufficient evidence base to warrant the use of the Mollii Suit for NF1 muscle and motor deficiencies. In addition, he was not aware of evidence that the use of the Mollii Suit would reduce the future need for allied health therapies.
LEGISLATION AND GUIDELINES
The National Disability Insurance Scheme (NDIS) is established by the National Disability Insurance Scheme Act 2013 (Cth), and the Agency administers the NDIS. The legislation contains objects and principles which emphasise the rights of people with disability to participate in community to the full extent of their ability.
The objects of the NDIS Act are set out in s 3 of the NDIS Act. Section 4 of the NDIS Act details the general principles to guide decisions and actions taken under the legislation. Relevantly, those principles include:
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports...
(12) The role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected…
(15) In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted
In giving effect to the objects of the NDIS Act, s 3(3) requires that regard must be given to, among other matters, “the need to ensure the financial sustainability” of the NDIS.
Section 31 of the NDIS Act lists principles which must be applied as far as reasonably practicable in formulations of NDIS participants’ plans. Section 34(1)(a)-(f) of the NDIS Act sets out the matters about which the Agency’s CEO must be satisfied for the purposes of specifying in a statement of participant supports the reasonable and necessary supports that will be funded under the NDIS. If one of the requirements in s 34(1)(a)-(f) is not satisfied, then the particular item is not a reasonable and necessary support.
The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules) deal with the assessment and determination of reasonable and necessary supports that will be funded under the NDIS. The Support Rules form part of the legislation.
The NDIS Operational Guideline, “Planning” (the Planning Guideline) provides information and guidance with regard to the preparation and review of a participant’s NDIS plan.
BACKGROUND
Numerous reports and notes were received in evidence about SZWV’s conditions. Medical summaries recorded his history of neurofibromatosis type I, brain stem glioma, non-cleft velopharyngeal dysfunction, Lisch nodule right eye and speech disorder.[5]
[5] Exhibit 9, p 208
Recent paediatric oncology/haematology correspondence[6] confirmed that SZWV has NF1 with a brain stem lesion which was found on a surveillance MRI scan. The scan showed no evidence of recurrent or progressive disease, meaning that the changes which were present at his initial diagnosis in 2015 remain. Surveillance scanning was no longer required.[7]
[6] Exhibit 12, p 563, report 14 September 2020
[7] Exhibit 11, p 440
SZWV has also been affected by mild obstructive sleep apnoea and inattentive ADHD. In mid-2020 his ADHD symptoms were reported to be controlled effectively on a small dose of Ritalin. The stimulant medication was ceased in early 2021. In July 2021 he was recommended for psychology assistance for treatment of anxiety symptoms.[8] He remains under the continuing care of an ophthalmologist, a paediatric oncologist and the cleft palate unit in a regional health service.[9]
[8] Exhibit 12, p 520-2
[9] Exhibit 9, p 301
SZWV has received extensive support from his occupational therapist and from his physiotherapist. His parents are actively involved in the arrangements and engagement with the allied health therapists. Allied health goals include improving gross motor skills, improving balance and coordination, enhancing upper and lower limb and core muscle strength, and improving core muscle and shoulder muscle strength to assist with improvement of posture in the avoidance of secondary musculoskeletal complications.
SZWV’s current occupational therapist has worked with him from late 2017, while his current physiotherapist commenced with him in July 2019. Previously, he had been receiving occupational therapy and physiotherapy based at a hospital. Aspects of the allied health services which both practitioners provided to SZWV from mid-2019 included complementary therapies and some joint sessions, thus trying to collaborate in the achievement of his goals.[10]
[10] Exhibit 10, p 389
Mollii Suit
SZWV completed a one-month trial, followed by a period of four months wearing the Mollii Suit every day for an hour. In his NDIS plan, which commenced on 25 March 2021, funding of $6125 for a trial of the Mollii Suit was provided in the capital supports budget. That funding covered the four-month trial. Subsequently, his family funded continuing use for one month, which meant that SZWV had used it altogether for six months, although not continuously throughout that time.
By the time of the hearing in the Tribunal, nine months had elapsed from the last use of the Mollii Suit. It is relatively new technology generally and it is particularly new for children with NF1. The supplier describes the suit as “a unique assistive device for people with spasticity, motor disability, increased or decreased muscular tension. Mollii provides electrical stimulation via a specially designed garment, thus helping the body to relax and increase movement, function and activity.”[11]
[11] Exhibit 6
The Agency sought a report from a paediatric neurologist, who was able to give a description of the technology from research by the UK National Institute for Health and Care Excellence, describing the Mollii Suit as:
…a full-body garment (jacket and trousers) containing multiple electrodes, worn for 60-90 minutes every other day, that administers a form of transcutaneous electrical nerve stimulation (TENS), with the aim of reducing pain and improving movement in people with spasticity and other forms of motor impairment due to brain disease and injury. It is also recommended by the manufacturer for sufferers of fibromyalgia and other pain syndromes. Unlike other TENS and electrical stimulation devices, the suit is designed with the intention of stimulating multiple sites at once.[12]
[12] Exhibit 8, p 184
The occupational therapist confirmed in a written assessment[13] to the Agency that the Mollii Suit can be used at home each day with monitoring at no extra cost by a therapist from the supplier. No changes are required in the home environment for the device to be used. Once the suit is purchased there are no extra costs until SZWV is 16 years of age, with the provision of new suits as he grows, and continued monitoring by the vendor. The Mollii Suit complies with a relevant standard, namely ISO 13485:2016,[14] which applies to design, development, manufacturing, marketing, sales, service and refurbishment of transcutaneous electrical nerve and muscle stimulators.[15] The occupational therapist regards the suit as an adjunct to continuing physiotherapy and occupational therapy. Providing mild, low-frequency electro-stimulation via the two-piece suit, which is programmed for the needs of the individual person, the physiotherapist explained further:[16]
The wearer is fitted with the suit and an accompanying control unit which is then programmed to the specific needs of the individual during a professional assessment by a Mollii trained therapist. Electro stimulation treatment progresses for a period of 60 minutes, targeting the specific muscle groups via the antagonist (opposite) muscles. This prompts lasting, natural reflexes such as reciprocal inhibition to relieve muscle tension, imbalances, spasticity and other motor disabilities thus improving range of motion, function and activity.
The sensory input provided by both electrical stimulation and the physical sensation of the tightly fitted suit may also have an impact on appropriate deep awareness, which is essential not only for motor control in dynamic activity but also for maintaining position and balance control.
[13] Exhibit 10, p 398
[14] As above, p 416
[15] As above, p 384
[16] Exhibit 11, p 440
NDIS PLAN
SZWV’s NDIS plan, which commenced on 25 March 2021,[17] set out his short-term and medium/long-term goals. The short-term goal included strengthening his muscles to enable him to walk further with his family, ride his bike for some distance and engage with his friends in play. Achievement of the goal included working with his physiotherapist and occupational therapist to build his strength and stamina while using the Mollii Suit to full advantage. The medium-term goal included strategies to help him to adapt to tasks so he can participate more independently at home and at school. Those goals were replicated in his subsequent NDIS plan on 8 July 2021.[18]
EVIDENCE
[17] Exhibit 1, p 29
[18] Exhibit 1, p 42
SZWV’s mother
SZWV’s mother gave evidence by affirmation, in which she confirmed that her son has used the Mollii Suit in total for six months, starting with a one-month free trial in late 2020.
SZWV’ s mother told the Tribunal that a representative of the supplier Metier Medical Ltd assisted with the set-up of the suit, the initial programming and subsequent monitoring. She is not aware of any other supplier. A TENS machine was not recommended by the occupational therapist. A SPIO vest was used when SZWV was about four years old, shortly after the diagnosis of NF1, but it was a “hassle” for him. In her evidence, she confirmed that her son used the Mollii Suit each morning for one hour before going to school, and on weekends. It became part of his routine. SZWV’s mother described in evidence the way in which her son used the suit and the routines which he followed. He was happy wearing the suit and he could do other things while wearing it , such as homework or watching TV. Throughout the six-month period he continued therapy with his occupational therapist and physiotherapist. Subsequently, both occupational therapy and physiotherapy have continued regularly up to the present time. The occupational therapy involved weekly sessions at home or at the occupational therapist’s rooms. The physiotherapy has been less frequent and occasionally by video because of Covid lockdowns and availability of the physiotherapist.
SZWV’s mother told the Tribunal that his gross motor skills have improved considerably. For example, he could not walk any distance until he was seven years old. Now he can walk around a nine-hole, modified golf course . His fine motor skills are still impaired. He cannot, for example, hold a pencil properly, and his writing is mainly illegible. She described his fine motor skills as poor, and that he gets assistance from his occupational therapist to develop those skills.
She described below average capabilities with his balance and coordination. His core strength is quite poor and affects other aspects of his activities; for example, his concentration sitting at the desk and trying to write. At school he had used a “saddle seat” to improve his posture and reduce a hunching over, rounded-shoulder posture. During the time that SZWV was using the Mollii Suit, his mother noticed improvements with his core strength and posture. She said that he exhibited better physical strength. He was sleeping better. He was having less headaches; previously they were weekly, but in the six months of using the Mollii Suit he had only three headaches. He had complained about headaches at the back of his neck. His posture seemed to contribute to straining his neck. While he was using the Mollii Suit he seemed to be less tired and generally more active. After school, he was participating more regularly in sporting activities, which she enjoys. Hs attention span was improving during this time. Six months after cessation of his use of the Mollii Suit, his mother noticed a decline in these areas. Significantly, she also mentioned that he asked her recently when he would be able to use the Mollii Suit again because, in his words, “it makes me feel better”.
In cross-examination, SZWV’s mother confirmed that the Mollii Suit is a support that is additional to his physiotherapy and occupational therapy. She acknowledged that, prior to the introduction of the Mollii Suit, his balance and strength were continuing to improve through physiotherapy, and she also acknowledged that age and growth are factors in his overall improvement.
Currently, SZWV wears glasses for a “slight turn” in his right eye and he is monitored every 12 months for nerve tumours. He has had problems with his speech and with choking, which required intervention by a speech pathologist, although not in the last four years. He had two lots of pharyngeal surgery to shorten his palate. Approximately two years ago, he was prescribed with Ritalin to assist with problems with concentration. His use of Ritalin continued for about nine months, and then it was withdrawn after consultation between his mother and his paediatrician. She said Ritalin “knocked him out.” The precise date of ceasing the use of Ritalin is not clear. Based on a paediatrician’s report written on 21 January 2021, it seems likely that the medication was withdrawn at around that time.[19]
[19] Exhibit 12, p 522
Occupational therapy
Current and historical clinical records were included in the documentary evidence. They indicate that when SZWV was five years old, prior to commencing with his current occupational therapist, he was in a school starters group receiving occupational therapy. He was prescribed and fitted with a SPIO vest by his physiotherapist to assist with his postural stability, and it was considered that wearing the vest may assist in fine motor tasks by increasing his stability and reducing his postural fatigue.[20] His low muscle tone and generalised weakness during fine motor tasks and self-care skills were mentioned in clinical records; for example in April 2016, noting also that his gross motor skills were below appropriate age level due to low muscle tone affecting his balance.[21] In September 2020,[22] it was thought low motor tone might be contributing to problems he was having with his neck.
[20] Exhibit 12, p 574
[21] As above, p 579
[22] As above , p 563
In October 2017, SZWV commenced occupational therapy with his current practitioner. His reports dated 10 August 2021[23] and 22 December 2021[24] were received in evidence, together with a detailed assistive technology assessment[25] and a provider support plan[26] on the Agency template documents. The occupational therapist gave oral evidence under affirmation by video during the hearing. He has practised as an occupational therapist for about nine years, with experience working in hospital settings with a focus on rehabilitation and working with children with disabilities, and from 2017, he has operated in private practice.
[23] Exhibit 5
[24] Exhibit 4
[25] Exhibit 10, p 398
[26] As above, p 389
His work with SZWV, from October 2017 onwards, has revolved around both gross and fine motor skills, with an initial focus on dressing, feeding, drinking, toileting and cognitive skills, including planning tasks and improving independence. He had some existing knowledge of the Mollii Suit through involvement with two other clients. However, the involvement was not extensive. In discussion with SZWV’s mother, who raised the possibility of the Mollii Suit, the occupational therapist considered it may be worth trialling to address SWZV’s difficulties with low muscle tone and fatigue.
The occupational therapist is well acquainted with SZWV, and the written reports provide a helpful picture of him. He attends school full-time in a mainstream class. He is active and happy, and enjoys sport. He lives with his parents and siblings, with great support from his family. He is physically small and has not developed at the same rate as his peers. He has difficulty keeping up with them physically and socially. Deficits in his visual perception and visual motor integration have negative impacts on his learning and writing. He has some difficulties with delayed recall and working memory in school and therapy tasks. Although he is softly spoken and has had some difficulties with speech, he can communicate independently and is well understood by others.
During his work with SZWV for three years prior to the Mollii Suit, the occupational therapist had observed consistent but slow improvements. With daily use of the Mollii Suit during the trial period, which was relatively short, the gains were clear, and the occupational therapist linked them specifically to the Mollii Suit.
In his reports and evidence, the occupational therapist confirmed his recommendation for funding for the Mollii Suit. He noted that SZWV will require continuing allied health support through occupational therapy and physiotherapy. He considered that there will be long-term benefits from use of the Mollii Suit, which is complementary to the occupational therapy and physiotherapy, together with the potential to decrease those therapies sooner rather than later. The Mollii Suit is seen to be a targeted approach that complements the main therapies.
Physiotherapy
SZWV’s physiotherapist wrote three reports, on 13 January 2020, 18 February 2021 and 22 December 2021. She provided physiotherapy to him, which commenced in July 2019 and comprised a combination of school- and home-based appointments and telehealth appointments when Covid 19 lockdown restrictions were in place.
The physiotherapist’s reports confirmed that SZWV’s impairments adversely affect his gross motor skills, and also that he is about five years below his current age in the area of balance, four years below in running speed and agility and three years below in strength. Hence, he requires support to improve those aspects of his gross motor skills.
In order to address his problems with physical impairment, SZWV had physiotherapy goals, which were the improvement of gross motor skills; improvement of balance and coordination; improvement of upper limb, lower limb, and core muscle strength; improvement of lower limb strength and exercise tolerance; and improvement of core muscle and shoulder muscle strength to assist with better posture and avoidance of secondary musculoskeletal complications.[27]
[27] Exhibit 11, p 440
The monitoring of the use and effectiveness of the Mollii Suit trial was a collaborative exercise, involving the physiotherapist, occupational therapist and Mollii Suit therapist. Following the trial, further, planned assessments which the physiotherapist wanted to undertake were not possible because of the cessation of face-to-face physiotherapy in the Covid lockdown. However, she recommended continued intervention using the Mollii Suit as an adjunct therapy to both physiotherapy and occupational therapy to assist SZWV in achieving goals, with the potential for reducing the frequency of physiotherapy and occupational therapy appointments. She considered alternatives to the use of the Mollii Suit, including kinesio taping techniques, and concluded they were not as effective.
Neurologist
As mentioned earlier, the Agency received a report from an experienced paediatric neurologist. He was provided with briefing material which included reports by SZWV’s occupational therapist and physiotherapist, his clinical records and an information sheet about the Mollii Suit. He conducted a literature search and provide a written report in response to questions from the Agency’s solicitors. He currently holds appointments as a consultant neurologist at the Royal Children’s Hospital, Melbourne, and as an honorary fellow manager in the neurosciences research group at the Murdoch Children’s Research Institute. He has a current, although not exclusive, focus in research projects regarding epilepsy in children and young people.
In summary, the neurologist’s opinion is that the Mollii Suit is not likely to be beneficial for management of SZWV’s condition of NF1 and not likely to reduce the long-term need for physiotherapy and occupational therapy. That is an opinion which he expressed in his oral evidence and which he formed as a result of the literature search, his understanding of the Mollii Suit technology, which he has derived from the available literature, together with his own professional qualifications and experience.
CONSIDERATION
In McGarrigle v National Disability Insurance Agency, the term “support” is described by the Federal Court, per Mortimer J, as “a practical description of the means by which a person with disability is assisted”.[28]
[28] [2017] FCA 306 at [88]
The Full Court of the Federal Court in National Disability Insurance Agency v WRMF discussed reasonable and necessary supports in s 34(1) of the NDIS Act:[29]
... there is no doubt that the contextual use of the phrase [‘reasonable and necessary supports’] 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.
[29] [2020] FCAFC 79 at [151]
Under Support Rules 5.1(a), (b), (c) and (d), the Agency does not provide or fund a support under the NDIS if the circumstances set out in any one of those sub-rules apply.
Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice s 34(1)(d) of the NDIS Act
First, consideration will be given as to whether the requested support for funding of the Mollii Suit satisfies this requirement.
Support Rules 3.2 and 3.3 require consideration of the available evidence of the effectiveness of the requested support for others in like circumstances. That evidence may include published and refereed literature and any consensus of expert opinion, it may include the lived experience of the participant or the carers and anything that the Agency has learnt through delivery of the NDIS. Expert opinion can be taken into account. In this case there is a paucity of refereed literature. SZWV’s neurological condition is rare. The technology in question is relatively new. There is no evidence of actual use of this technology by other children or young people in “like circumstances” to SZWV.
Effective and beneficial
The NDIS Act does not provide a definition of the words “effective” and “beneficial”. In McCutcheon v NDIA the Tribunal accepted that they are: “ordinary words that should be given their ordinary meaning. Relevant to these proceedings, “effective” in the Australian Oxford Dictionary means: having a definite or desired effect; efficient, and “beneficial” means advantageous; having benefits; improving the health.”[30]
[30] [2015] AATA 624 at [34]; NDIA Operational Guideline 10.6
In evidence, the occupational therapist did not have concerns about the safety of the Mollii Suit and no concerns about it were reported to him. He understood its technology in the same terms that were expressed by the physiotherapist. He understood that the technology would provide stimulation to the muscles that are weak and relaxed and give them, in effect, a consistent workout to strengthen them. He discussed the importance of the possible impact of the suit on proprioceptive awareness, which assist with improvements in coordination and balance.
The occupational therapist has worked in conjunction with the physiotherapist from time to time, including joint clinical sessions. His reports describe the improvements which he noted during the trial which he thought were specifically linked to the use of the Mollii Suit. Those improvements included increased endurance in core stability, with improved posture and capacity to sit and stand for longer periods; and improvement in strength and confidence, with increased capacity to maintain body positions during functional and therapy tasks. With those observed functional gains, SZWV has increased his confidence in his body movements and abilities, which has led to greater willingness to try new activities. With increased capacity for sitting, he has been able to maintain body position and attention more effectively and complete tasks such as handwriting. The occupational therapist also noted the observations of his parents about his improved endurance, strength and ability with climbing stairs, throwing a cricket ball and enjoying physical activities with his friends. His parents noted his improvements with memory, fewer headaches, decreased dystonic movements at rest, decreased agitation and improved bladder control, and he was becoming more independent at home and at school.
By the end of the trial in mid-2021, the occupational therapist observed improvements, and recorded improvements that he and the parents had observed. Together, they are improvements in physical, cognitive and social domains. In evidence he said that “astronomical” improvements in six months would not be expected, however there were plenty of “worthwhile improvements” during that time. In his evidence he said that there has been a regression in recent months, which he has noticed in occupational therapy sessions. SZWV has shown less stamina and energy.
In the letter dated 22 December 2021, the occupational therapist wrote that SZWV: “will continue to see improved cognitive function and concentration whilst using the Mollii Suit each day.”[31] He was cross-examined about that prediction and possible fallacies within it. In his oral evidence he confirmed and maintained his opinion. He acknowledged as a possibility that the Mollii Suit may not be the causative factor in those improvements. He acknowledged the lack of scientific evidence in relation to therapies for people with a rare condition of NF1. Nonetheless, he was confident about the improvements which he and others had observed during the trial.
[31] Exhibit 4, p 172
The occupational therapist’s second report[32] was completed after the initial trial, which was funded by the Agency and the subsequent one-month hire paid for by the parents. The improvements which the occupational therapist noted during the trial, which were specifically linked to the use of the Mollii Suit, included increased endurance in core stability, with improved posture and capacity to sit and stand for longer periods; and improvement in strength and confidence, with increased capacity to maintain body positions during functional and therapy tasks. With those functional gains, he has increased his confidence in his body movements and abilities, which has led to greater willingness to try new activities. With increased capacity for sitting, he has been able to maintain body position and attention more effectively and complete tasks such as handwriting. The occupational therapist also noted the observations of his parents about his improved endurance, strength and ability with climbing stairs, throwing a cricket ball and being more physically capable to engage with his friends. His parents noted that his memory had improved, his headaches were less frequent, he experienced decreased dystonic movements at rest, and decreased agitation and improved bladder control, and he was becoming more independent at home and at school.
[32] Exhibit 5
The occupational therapist had worked with SZWV for three years, and he had observed consistent but slow improvements. With daily use of the Mollii Suit during the trial period, which was relatively short, the gains were clear, and the occupational therapist was able to link them to the Mollii Suit. As a consequence of his NF1, SZWV will always have difficulty with visual perception and visual integration skills. The occupational therapist applied formal outcome measurements, which indicated slow and steady improvement in motor coordination.[33]
[33] As above
Following SZWV’s use of the Mollii Suit every day for a period of five months, the physiotherapist recorded the following improvements in her letter dated 22 December 2021 in support of the continued funding use of the Mollii Suit:[34]: improved posture during sitting; improvements in upper limb coordination; reduction in migraines; improvements in social participation in sports with peers, including improved confidence and ability for running and cricket bowling; improvements in balance and lower limb coordination; improvements in exercise tolerance.
[34] Exhibit 11, p 431
SZWV has problems with posture. In particular, he has a kyphotic posture when he is sitting. The likely cause, which is specified in the physiotherapy assessment, is reduced level of poor muscle strength and poor scapular control caused by weak upper limb strength. The physiotherapist noted improvements while he was wearing the Mollii Suit. In particular, he was able to sit for longer periods and maintain better posture. She added, however, “after ceasing Mollii Suit therapy [he] was observed to adopt a more kyphotic posture and became fatigued more quickly when attempting to maintain optimal posture during seated activities.”[35] She also reported that his exercise tolerance improved while he was in Mollii Suit therapy
[35] As above
Current good practice
In TKCW v NDIA,[36] the Tribunal considered external (non-NDIS) operational guidelines for early intervention for children with autism spectrum disorders. They were described as good practice guidelines based on “basic good practice principles fundamental to working with all young children with special needs and their families”. Those guidelines appeared to be about the assessment, planning and delivery of interventions, rather than being about a particular form of intervention. In the circumstances of that case the Tribunal inferred that “current good practice” in s 34(1)(d) of the NDIS Act related to something broader, namely “a practice which, even if not widely used, is recognised by sufficient numbers of practitioners as being based on sound evidence.”[37]
[36] [2014] AATA 501
[37] As above, at [70]
The dilemma about new and emerging practices was considered in TKCW, with particular reference to an Agency document in existence at that time about early intervention. Whether or not the document still exists is immaterial, but the point which it raised is highly material: “while an emphasis on interventions that are effective and beneficial for the participant is appropriate, it is also important to recognise that existing evidence is often limited. Therefore the NDIS would also support potentially promising interventions which are likely to be beneficial, based on current good practice.”[38]
[38] As above, at [72]
In determining whether or not there is sufficient evidence about current good practice in relation to the Mollii Suit, it is important to note several factors which are significant in this case. They include: SZWV has trialled the suit; the trial took place pursuant to the funded support in his NDIS plan; his parents maintained oversight of the trial; his occupational therapist and his physiotherapist provided professional assessments before the trial, monitoring during the trial and analyses subsequent to the trial; no concerns about safety have been identified; the implementation of the trial has been in accordance with appropriate professional standards; SZWV has indicated consistent enthusiasm for the suit and uses it willingly; as a relatively new technology, it is inevitable that existing evidence about it will be somewhat limited; the occupational therapist and physiotherapist both regard the intervention as promising because it has been effective for SZWV in various ways which can be objectively considered.
The occupational therapist was questioned about the lack of a baseline functional assessment being conducted prior to the use of the Mollii Suit, and the lack of a formal functional assessment subsequently. He referred to physiotherapy and occupational therapy assessments which were proposed in the written recommendations that had been given to the Agency. He also referred to the novelty of the process with this particular client. He referred to the Agency approval of the funding for continued use for the four-month period, which tended to suggest that the type of information which had been provided to the Agency was sufficient and suitable, at least at that point.
In the NDIS plan that commenced on 25 March 21, the funding for the trial of the Mollii Suit was included. This was preceded by a report to the Agency under an Agency template (Provider Support Plan) which the occupational therapist compiled on 17 February 2021.[39] It included recommendations for the four-month trial of the Mollii Suit, identification and measurement of goals, and outcome measures, which included functional assessments, functional observations, the Beery Visual Motor Integration (VMI) reassessment, a handwriting assessment and a BOT-2 (Bruininks-Oseretsky Test of Motor Proficiency Second Edition) reassessment by the physiotherapist. At that time, the occupational therapist and the physiotherapist had completed a session with SZWV wearing the Mollii Suit, with assessment of his balance, coordination and gross motor function. The occupational therapist had had discussions with the Mollii Suit therapist to ascertain the possible benefits of wearing the suit consistently, both in the short term and in the long term. Clearly, the recommendations made in the Provider Support Plan were accepted and funded in the NDIS plan (25 March 2021).
[39] Exhibit 10, p 389
In addition, the occupational therapist completed a 27-page template document for the Agency on 24 March 2021,[40] which included details of SZWV’s functional, sensory, communication and cognitive limitations. It included details of the results of the initial one-month trial of the Mollii Suit, with outcomes in relation to visual motor integration, visual perception and motor coordination and achievements reported by the parents. The functional outcomes from the electrical stimulation of the suit were summarised. This summary included a rationale for the use of the suit and the possible benefits, both short term and long term. By that time, the Agency had apparently approved the four-month initial trial.
[40] Exhibit 10, p 401
In terms of formal outcome measures, the occupational therapist applied the Beery VMI Developmental Test of Visual Perception when SZWV was 8 years 5 months old (18 November 2019), and when he was 9 years and 8 months old (9 February 2021). His interpretation of the developmental tests was reported as follows: “[SZWV] improved his motor coordination function, helping him to engage in greater meaningful and purposeful activities at school and home. As a result of [SZWV’s] diagnosis of NF1, he continues to and likely always will, have difficulty with visual perception and visual motor integration skills, however these were less apparent with consistent use of the Mollii Suit.”[41]
[41] Exhibit 4, p 172
Attempts by the physiotherapist to complete formal functional measurements were thwarted by the Covid lockdown. She applied the BOT-2 test for measurement of gross and fine motor skills, initially on 11 December 2020.[42] The reassessment of the scoring was planned to take place after a period of at least six months to measure changes in balance, running and agility. It was not possible to undertake the reassessment using the assessment tool because face-to-face physiotherapy sessions were prevented by the lockdown.
[42] Exhibit 11, p 431
The Tribunal considers that the physiotherapist and the occupational therapist applied a process of assessment, planning and delivery of the Mollii Suit trial that was soundly based. The necessary elements for good professional practice were in place. Counsel for the Agency argued there was a lack of objective evaluation of the reported improvements. However, the assessments were carried out in accordance with recommendations that the Agency sought, received, approved and funded. The criticism made now by Counsel about inadequate baseline assessment was not made at the relevant time.
Literature and opinions
Under Support Rule 3.2(a), consideration of the available evidence may include, firstly, consideration of the published and refereed literature and any consensus of expert opinion.
The paediatric neurologist, called as a witness by the Agency, has not met SZWV or his parents. He has not seen a Mollii Suit. His report includes a summary of a literature search that he made. In his two-page report, the neurologist discussed the difference between hypotonia and spasticity. He emphasised the importance of that distinction if the Mollii Suit is to be used for people with spasticity – that is, with increased muscle tone – rather than for people with hypotonia, who have low muscle tone. As he explained in evidence, a spectrum of muscle tone has hypertonia at one end and hypotonia at the other end. He pointed out that NF1 in childhood is associated with hypotonia, while also acknowledging that as a term used in clinical settings, hypotonia remains “poorly defined”.[43] Based on a description of the Mollii Suit provided by the National Institute for Health and Care Excellence, the neurologist said in evidence that he understood that the Mollii Suit was designed to decrease muscle tone and improve movement in people with spasticity.
[43] Exhibit 8, p184
The neurologist reported that the Mollii Suit has not been tested scientifically in relation to SZWV’s symptoms, and it cannot be concluded which of those symptoms are likely to be assisted by the use of the suit. He regarded the use of the suit as a speculative intervention. In his experience, “most speculative interventions prove not to be of benefit when tested in a rigorous fashion.”[44] Clearly, the published research is not extensive, and relates to small, mainly uncontrolled, studies. One of them relates to children with cerebral palsy. Another was a study of adults with stroke, of whom 75 per cent reported an overall feeling of wellbeing from use of the Mollii Suit, but no reduction in spasticity. The neurologist was unable to confirm whether overall wellbeing could be said to relate to improvements in memory, concentration and motivation. The limited available literature did not provide him with “evidence to support or refute an effect of the Mollii Suit on spasticity or pain or function in patients with cerebral palsy or stroke.”[45] In evidence, he confirmed that he was unable to draw a conclusion about the effect of the Mollii Suit for people who have hypotonia associated with conditions such as NF1. The published literature does not include studies of patients with NF1.
[44] As above
[45] As above
The emphasis that was important to the Agency’s case was the recommendation that the Mollii Suit’s use is for conditions that result in spasticity. It is not altogether clear whether it is the manufacturer or the supplier, or both, purporting to make that claim. The neurologist considered that the use of the Mollii Suit is contraindicated for people with low muscle tone (hypotonia), because the technology is for the benefit of people with high muscle tone, not for people at the opposite end of the spectrum, with low muscle tone. However, a closer look at the material generated by the supplier indicates its potential use and claimed benefits for various conditions and impairments which are not necessarily confined to impact from spasticity. The supplier is a registered NDIS provider. It claims that the Mollii Suit is an assistive device which may assist people who suffer from movement disorders or abnormal muscle tone, and that it may assist with increased or decreased muscular tension. It is described as a “unique assistive device for people with spasticity, motor disability, increased or decreased muscular tension.”[46] It does not claim to be a substitute for medical treatment and allied health therapies.
[46] Exhibit 2, pp 182-3
What is important is the submission by the Agency’s Counsel, that there is no scientific rationale for the benefits which are claimed from use of the suit. That lack of a scientific rationale is associated with limitations in the scientific literature. Those limitations are set out in the written report by the neurologist. The Tribunal accepts that the research about the Mollii Suit is limited. From the evidence of the neurologist, it appears that there are only six articles related to the Mollii Suit published between 2018 and 2022, and they are all related to people with spasticity due to stroke or cerebral palsy.
It may well be that further, peer reviewed, literature will become available in the future about the effectiveness of the Mollii Suit. Counsel for the Agency argued that larger, controlled studies are required and, in particular, in relation to those people with increased muscle tone. There is no dispute that further research would be welcomed. However, research is less likely to occur if the Agency does not fund the technology for participants to trial in suitable cases. While that is not a dilemma that this review needs to resolve, it could become problematic if existing NDIS participants and prospective participants need to rely upon the vagaries of overseas research.
The occupational therapist was criticised by the Agency’s Counsel for lack of objectivity. In rejecting that contention, the Tribunal acknowledges that the occupational therapist does not purport to be and is not an expert in the understanding and use of the Mollii Suit. Neither is the physiotherapist. Equally however, the neurologist, whose experience and expertise in paediatric neurology is undoubted, does not purport to be and is not an expert in the understanding and applications of a Mollii Suit. The benefit of his expertise in this review arises out of his professional capacity to comprehend and provide his opinion about the material, including the research literature.
From his research of the literature, the neurologist confirmed that he was not aware of any safety issues regarding the use of the Mollii Suit, and he was not concerned about risks to SZWV from use of the suit.
Lived experience
Under Support Rule 3.2(b), consideration of the evidence about effective, beneficial supports and current good practice may include consideration of the lived experience of the participant or their carers’.
In McCutcheon & NDIA the Tribunal weighed up the considerations about lived experience stating that: “how much weight ‘lived experience’ should be given will depend on all of the available evidence. Where it is consistent with reliable, relevant, independent evidence, it will likely be given a good deal of weight. Where it is at odds with other evidence, it may be given less weight. Where reliable, relevant, independent evidence is lacking, evidence of “lived experience” may be particularly important.”[47]
[47] [2015] AATA 624 at [86]
Counsel for the Agency acknowledged that, as NF1 is a rare condition that affects people differently, it may be hard to determine what is current practice. In this case, the Agency’s counsel submitted that the lived experience is at odds with the expert evidence, and to rely upon the evidence of lived experience jeopardises objects specified in the NDIS Act for a nationally consistent approach[48] and the financial sustainability of the NDIS.[49]
[48] S 3(1)(f) NDIS Act
[49] S 3(3)(b) NDIS Act
Counsel for the Agency highlighted previous decisions of the Tribunal in relation to evidence about lived experience. In QTBR & NDIA[50] the Tribunal found that the evidence of the applicant’s lived experience was limited, and published literature was unhelpful to the applicant. The support in question related to an assistance animal, and lived experience was confined to a three-hour trial and telephone assessment. The Tribunal was not satisfied that lived experience in the circumstances of that review could be relied on to conclude that the proposed support met the criterion in s 34(1)(d) of the NDIS Act. In TKCW & NDIA[51] the evidence about a form of listening therapy was accompanied by neither satisfactory research nor any lived experience. Typically, with emerging therapies and technologies, the Tribunal noted in that case that it may be many years before reliable research evidence for the particular support (a listening therapy) is available, while noting: “in the meantime, evidence, even if anecdotal, from a sufficient number of qualified therapists of positive outcomes in sufficient numbers of children may be enough to say that it should be regarded as current good practice.”[52]
[50] [2021] AATA 1951 at [181-6]
[51] [2014] AATA 501
[52] As above, at [75]
The Agency’s case asserts that the improvements which were evidenced by the lived experience of SZWV, as interpreted by his mother and by the allied health practitioners, cannot be attributed to the use of the Mollii Suit. Improvements could have been explained by other factors; for example, the reduction in headaches might be attributed to the cessation of Ritalin, and increase in strength might be attributable to gains arising out of physiotherapy. Moreover, it was suggested that there is no basis for attributing improvement in cognition to the use of the Mollii Suit.
It was contended that, in the absence of scientific evidence, there is a lack of clarity in ascertaining which symptoms are likely to be assisted and no evidence whatsoever to suggest that the Mollii Suit use will improve stamina, memory, concentration, motivation or headaches. The neurologist wrote in his letter about a lack of evidence to suggest that the Mollii Suit “or other more localised forms of TENS therapy improve stamina, memory, concentration, motivation or headache”. In evidence, the occupational therapist said that he and the physiotherapist had seen improvements in those areas. He queried the relevance of the reference to a TENS machine other than to note that, in his professional experience, those machines do result in improvement for people suffering headaches. He agreed with the neurologist’s comment that the Mollii Suit has not been scientifically tested in relation to the NF1 symptoms. In evidence, the occupational therapist referred to a definite improvement in muscle tone during the time that SZWV was using the Mollii Suit, which was reflected in better posture and core strength in the range of physical improvements which the physiotherapist recorded.
The Tribunal considers that the evidence of lived experience which was given by the mother is compelling. She said that she and her husband noticed an array of improvements during the time when the Mollii Suit was used. Their observations are supported by assessments and observations over a lengthy period by the occupational therapist and the physiotherapist.
The evidence of lived experience of SZWV and his parents is consistent with the evidence from the occupational therapist and the physiotherapist. The Tribunal does not agree that the occupational therapist’s evidence lacks objectivity. There is no evidence that the occupational therapist or the physiotherapist have commercial or any other links with the manufacturer and supplier of the Mollii Suit. Both practitioners are experienced, capable and thorough. The Tribunal heard lengthy oral evidence from the occupational therapist. His evidence is credible, honest and reliable. Like the physiotherapist, he is well acquainted with SZWV ‘s medical condition, medical history, treatment and development. In the circumstances, the evidence of lived experience is consistent with reliable evidence from the treating allied health practitioners. The evidence of lived experience is accepted, and it has considerable weight.
The Tribunal accepts the oral and documentary evidence given by the occupational therapist about benefits that he assessed during the time of working with and observing SZWV. The Tribunal accepts the physiotherapist’s documentary evidence about benefits that she assessed while she was providing physiotherapy to SZWV throughout that time. The Tribunal is satisfied that the physiotherapist and the occupational therapist acted in accordance with the requirements of current good practice.
The Tribunal accepts the evidence given by SZWV’s mother about her son’s lived experience while he was using the Mollii Suit, and the benefits for him, which directly or indirectly led to improved confidence and greater willingness to try new activities. These improvements were obvious to her, to her husband and to SZWZ himself.
While there is insufficient evidence to link the Mollii Suit to possible improvement in memory, concentration, or headaches, the Tribunal accepts the evidence, as discussed, about the improvements in SZWV’s muscle tone associated with his use of the Mollii Suit, with positive outcomes in improved posture, core strength and a range of physical gains through better balance and lower limb coordination.
The Tribunal is satisfied that the criteria in s 34(1)(d) are met.
Whether the support will assist the participant to pursue the goals, objectives and aspirations in the participant’s statement of goals and aspirations: s 34(1)(a) of the NDIS Act
SZWV’s NDIS plans were summarised previously. It is significant that there was a specific reference to the Mollii Suit in the short-term approved goal.
The Agency’s contentions were based around the lack of scientific evidence or rationale to suggest that the use of the Mollii Suit would assist in pursuit of the participant’s goals; in particular, the goal of strengthening his muscles. The contentions were based upon the evidence of the neurologist, that the Mollii Suit should be used for conditions that result in spasticity, not hypotonia associated with NF1.
For the reasons canvassed above, the Tribunal is satisfied by the opinions of the occupational therapist and the physiotherapist, that the use of the Mollii suit will assist in the strengthening of SZWV’s physical capabilities. In turn, this will assist him in pursuit of his NDIS goals. The criterion in s 34(1)(a) is met.
Whether the support will assist the participant to undertake activities to facilitate the participant’s social and economic participation: s 34(1)(b) of the NDIS Act
The Agency’s contentions rest upon the same propositions which were put forward in relation to s 34(1)(a) of the NDIS Act. Contrary to those propositions, the occupational therapist and the physiotherapist provided their opinions about enhanced physical capabilities through the use of the Mollii Suit. Those enhancements will assist SZWV in his physical capacity to engage and to participate with his peers. The Tribunal accepts that the conclusions which the occupational therapist and the physiotherapist drew are soundly based, through careful assessment, observations and monitoring according to appropriate professional standards. The criterion in section 34(1)(b) is met.
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: s 34(1)(c) of the NDIS Act
Rule 3.1 of the Support Rules states:
Value for money
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d) for supports that involve the provision of equipment or modifications:
(i) the comparative cost of purchasing or leasing the equipment or modifications; and
(ii) whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;
(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f) whether the support will increase the participants 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)
The Agency contended that funding the Mollii Suit would not represent value for money. The sum which is sought is $10,500, which is the result of the supplier crediting the sums already paid and not requiring that the rental and purchase agreement recommence from the beginning, thus incorporating a saving on the original terms.
The Tribunal does not accept that funding for a Mollii Suit for SZWV will jeopardise the financial sustainability of the NDIS. There is no evidence to support that submission The Tribunal also rejects the suggestion that a nationally consistent approach will be jeopardised if this application succeeds. Again, there is no evidence to support such a suggestion. Moreover, the rarity of the condition from which SZWV suffers and the novelty of the support under review tend to suggest that perceived problems about national consistency are speculative, premature and presently unrealistic.
The Agency referred to evidence about a SPIO vest. It was suggested that purchasing a SPIO vest for $139 is vastly cheaper, and practical, alternative option. In 2016, when SZWV was five years old, he commenced using a SPIO vest to assist with postural stability and an occupational therapy report at that time recommended that he continue to wear the vest when he was completing fine motor tasks.[53] There is little else in the evidence about the SPIO vest, and the Tribunal cannot be satisfied that the vest is an alternative option to the Mollii Suit that would provide the same or similar treatment at a reduced cost. The physiotherapist’s report on 22 December 2021 noted that other supports were considered.
[53] Exhibit 12, p 574
It was submitted for the Agency that a TENS machine could provide an option through electrical stimulation, and at a significantly reduced cost. However, the evidence about possible application of that machine was scant. That may reflect a certain illogicality in implying that electrical stimulation by a TENS machine could assist SZWV’s hypotonia whereas electrical stimulation by Mollii Suit could not.
The question of reduction of costs in the long term involves some speculation. Both the occupational therapist and the physiotherapist considered that the Mollii Suit may reduce the need for physiotherapy and occupational therapy appointments in the future. That speculation appears to be reasonable in view of the gains that were being made while the suit was being used. Of course, it is risky to speculate about the physical needs and extent of supports which SZWV, presently aged 11, might require when he is 14 or 15 years old. By the same token, it is commonplace to observe that developmental gains in childhood from intensive therapy might be consolidated by the time of adolescence, with less intervention required at that time. Clearly, the implementation of therapies which the allied health practitioners in this case regard as optimal will influence their view about likely future requirements. They suggest that the suit has a positive impact as an intervention that is less intrusive and less expensive than intensive allied therapy, and which can be undertaken, as they point out, at home and at a time during the day which is most convenient.
The criterion in s 34(1)(c) is met.
Whether 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: s 34(1)(e) of the NDIS Act
Support Rule 3.4(a) provides for matters which must be considered in determining whether provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide. The Agency contended that the current supports through occupational therapy and physiotherapy, together with other mainstream supports, including school and sporting groups, continue to be sufficient to enable SZWV to participate in the same way that the children without a disability can participate. It echoes a submission made by the Agency in McLaughlin & NDIA,[54] that the Operational Guidelines (in that case for recreational supports) are underpinned by a policy – supported by the general criteria in Support Rules 5.1(b) and 5.1(d) – that the NDIS funds a gap, namely: things that enable a participant with a disability to undertake in the same way as others without a disability.
[54] [2021] AATA 496 at [195]
The first point to note is that the requested support in this case is not a recreational support. Secondly, the support relates specifically to SZWV’s disability. The Agency’s submission acknowledged that he is “behind his peers”, but went on to argue that “there is sufficient support with proven therapy options in place to meet his needs and contribute to improvements.”[55] That argument runs counter to the views of the therapists themselves. Both the physiotherapist and the occupational therapist favour the use of the Mollii Suit as an adjunct to the therapies which they will continue to provide. It seems clear enough that physiotherapy and occupational therapy are important for SZWV, and have contributed to improvements. It is not altogether clear, however, that SZWV’s needs are being met by those therapies. The needs are being addressed, managed and mitigated, but they remain as needs which arise out of his disability, with impairments which continue to affect him.
[55] Respondent's statement of facts, issues and contentions at [8.46]
It was also submitted for the Agency that the Mollii Suit is not scientifically proven to benefit someone such as SZWV, and therefore it is not reasonable to expect the community to provide support for it.[56] In closing submissions, Counsel for the Agency argued that funding the Mollii Suit would lower the threshold for supports that the community will fund and will thereby affect the financial sustainability of the NDIS. The Tribunal does not agree with this submission. Section 34(1)(e) is a provision about roles, responsibilities and expectations of families, carers, informal networks and the community, which is further explained in Support Rule 3.4. Insofar as the submission relates to financial sustainability of the NDIS, it has been considered under s 34(1)(c), and is not accepted. In addition, in view of the rarity of SZWV’s condition and his use of the Mollii Suit as an adjunct to established and well-known therapies, it would be a considerable leap to determine that support thresholds are threatened. The Planning Guideline illustrates briefly and broadly the types of considerations involved in regard to what it is reasonable to expect others to provide. The Tribunal is unable to glean any assistance from the Planning Guideline in support of the Agency’s contention about lowering the threshold for funding supports.[57]
[56] As above, and at [8.47]
[57] Exhibit 1, p 87; paragraph 10.7 Planning Guideline
In consideration of the matters in Support Rule 3.4, the Tribunal is satisfied that the requirement in s 34(1)(e) of the NDIS Act is met.
The support is most appropriately funded or provided through the NDIS and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered (i) as part of a universal service obligation; or (ii) in accordance with the reasonable adjustments required under a law dealing with discrimination on the basis of disability: s 34(1)(f) of the NDIS Act
The Agency submitted that, even if the Tribunal finds that the criteria in s 34(1)(a) to (f) are satisfied, a residual discretion enables the Tribunal to refuse a support because it is not, in all the circumstances, a support that is reasonable and necessary. In that submission, the Agency pointed to the potential for long-term safety concerns arising out of SZWV’s use of the Mollii Suit. First, it was suggested that he was using the Mollii Suit for one hour every day instead of a recommended one hour every second day. The Agency referred to a Mollii website in support of that submission. However, the evidence indicates clearly that instructions and guidance about the use of the suit were assessed initially and monitored subsequently by a representative of the supplier. Significantly, the occupational therapist and physiotherapist had regular contact with SZWV before, during and after the trial, and his parents also were present throughout. Secondly, it was submitted that there may be long-term risks which cannot be identified due to lack of available scientific evidence. The evidence, however, which has been presented during this hearing suggests that there are no safety concerns. In particular, the neurologist from whom the Agency sought an opinion stated in evidence that he did not have concerns about the safety of the device. Related to the safety concerns was a suggestion that SZWV’s neurofibromas are benign, but the risk of malignant transformation may increase with electrodes stimulating neurofibromas in the applicant’s skin. Once more, there is no evidence about this hypothetical risk.
The functions of the Agency are set out in s 118 of the NDIS Act. One of them, in s 118 (v), is to ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk. Section 5 of the NDIS Act provides for general principles which include the principle that the best interests of a child with a disability are paramount, and full consideration should be given to the need to protect the child from harm and promote the child’s development (s 5(f) (i) and (ii)).
The evidence about safety has been discussed earlier. Clearly, considerations about safety are paramount, especially as they relate to a child. However, the literature, albeit limited, which the neurologist summarised does not raise concerns about safety. Rule 5.1(a) of the Support Rules provides that 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. The neurologist did not express concerns about safety from his own professional experience and expertise in paediatric disability. Significantly, the ongoing use of the suit will be in conjunction with the ongoing therapy provided by the physiotherapist and by the occupational therapist. The parental guidance will continue. The Tribunal does not accept that the evidence about safety risk and a lack of scientific evidence about the Mollii Suit are sufficient to exercise a discretion to decline funding for the suit.
As indicated previously, the Tribunal does not accept that the financial sustainability of the NDIS would be adversely affected by the funding of the Mollii Suit for SZ WV.
The Tribunal is satisfied that the requested supports are most appropriately funded through the NDIS. Accordingly, this requirement is met.
CONCLUSION
For the reasons which have been set out, the criteria in s 34(1) of the NDIS Act are satisfied.
DECISION
The decision under review made by the Agency on 8 September 2021 is set aside pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and in substitution the Tribunal decides:
Funding a Mollii Suit for the applicant, SZWV, in the sum of $10,500, is a reasonable and necessary support which is to be funded under the National Disability Insurance Scheme.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson
......[Sgnd]..............
Legal AssociateDated 12 September 2022
Date of hearing: 23 June and 1 July 2022
Applicant’s Representative: Unrepresented
Respondent’s Representative: Tamsin Waterhouse
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