TRCH and National Disability Insurance Agency - [2024] AATA 2918

TRCH and National Disability Insurance Agency [2024] AATA 2918 (15 August 2024)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2021/9125
Re:TRCH
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Member T Bubutievski
Date:15 August 2024
Place:Sydney

The internal review decision of 25 October 2021 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 27 August 2021, is set aside and remitted for reconsideration with directions that:
a.the following reasonable and necessary support will be funded under the National Disability Insurance Scheme from 27 August 2021:
(i)18 hours per annum of exercise physiology (including provider travel);
(ii)75 hours per annum of speech pathology (including provider travel);
(iii)48 hours per annum of occupational therapy (including provider travel);
(iv)Support work:
(a)two hours daily, seven days per week, of support for personal care and activities of daily living at the ratio of 1:1 (14 hours per week);
(b)three hours per week at weekday rates of support for social, community and civic participation at the ratio of 1:1;
(c)one hour per week at weekday rates of therapy support at the ratio of 1:1;
(d)20 hours per annum of support work at the ratio of 1:1 to assist in the transition to holiday care and STA;
(v)18 hours per week for 12 weeks per annum of holiday care at the ratio of 1:3;
(vi)12 days per annum of STA at the ratio of 1:4;
(vii)Transport funding at current NDIS Pricing Arrangements for SCCP and support worker attendance at therapy appointments once per month;
(viii)$500 per annum for low-cost assistive technology.
b.The date by which the Respondent will reassess the Applicant’s plan is 12 months from the date on which the supports under paragraph (a) are included in the Applicant’s existing statement of participant supports (the reassessment date).
c.All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph (a), excluding any one-off assistive technology already funded, shall be replicated for a period of 12 months, from the date on which the supports under paragraph (a) are included in the Applicant’s existing statement of participant supports until the reassessment date.
d.The Respondent is to determine the appropriate mechanism for the reimbursement or payment of support work invoices.
............................[SGD]............................................
Member T Bubutievski
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – review of decision relating to approval of Applicant’s statement of participant supports (SOPS) under his NDIS plan – child participant has autism (level 3), severe intellectual disability, sensory processing disorder and attention deficit hyperactivity disorder – request for additional funding for allied health interventions, support worker assistance, feeding program and travel – whether “reasonable and necessary supports” criteria under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) are met – Tribunal satisfied that some requested supports meet those criteria and should be included in Applicant’s SOPS – payment of outstanding invoices - Decision Under Review set aside and remitted with direction to facilitate the approval of a new SOPS for the Applicant
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
CASES
Frugtniet v Australia Securities and Investment Commission [2019] HCA 16
HPSC and National Disability Insurance Agency [2021] AATA 727
JQJT and National Disability Insurance Agency [2016] AATA 478
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency [2015] FCA 544
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH v National Disability Insurance Agency [2021[ FCAFC 189
XXWC by his mother and National Disability Insurance Agency [2020] AATA 923
REASONS FOR DECISION
Member T Bubutievski
15 August 2024
INTRODUCTION
The Applicant, TRCH,[1] is a thirteen-year-old child participant of the National Disability Insurance Scheme (NDIS). When this application was first lodged on 29 November 2021, Ms TRCH, on behalf of TRCH, sought review of a decision made on 25 October 2021 under s 100 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), affirming a decision made on 27 August 2021 under s 33(2) of the NDIS Act to approve a statement of participant supports (SOPS) forming part of TRCH’s NDIS plan.
1. [1]The Tribunal made confidentiality orders to maintain the confidentiality of the Applicant. In accordance with those orders, the pseudonym, TRCH, is used in place of the Applicant’s name in this Decision and Reasons for Decision. The Tribunal has also omitted or anonymised other information in these Reasons for Decision that might lead to the identification of TRCH.
.
The matter was heard by this Tribunal by videoconference on 11, 12 and 14 March 2024 (the substantive hearing).
On 19 April 2024, following a remittal by the Tribunal under s 42D of the Administrative Appeals Tribunal 1975 (Cth) (AAT Act), the Respondent, the National Disability Insurance Agency (NDIA or the Agency), made a decision to approve a further statement of participant supports resulting in the commencement of a further NDIS plan for TRCH. TRCH elected to proceed with this application and the remittal decision became the decision under review in this proceeding.
Following the substantive hearing, the Member who heard the matter was affected by serious illness and was consequently unable to decide the matter before their term of appointment to the Tribunal expired. On 8 July 2024, the President of the Tribunal reconstituted the matter to me.
Following reconstitution, I reviewed the documentary evidence submitted by both parties for the substantive hearing. On 15 July 2024, I held a directions hearing to put a plan for deciding the matter before the parties, and provide an opportunity for them to submit any additional evidence. Both parties confirmed that they had no further evidence to provide. Additionally, neither party objected to me rehearing and deciding the matter on the basis of the documentary evidence already provided, together with review of the Microsoft Teams video recording of the hearing and the hearing transcripts.
TRCH was represented in this proceeding by his mother (Ms TRCH). At the substantive hearing, the Respondent was represented by Ms Bianca Audsley of the Australian Government Solicitor. At the directions hearing on 15 July 2024 the Agency was represented by Mr Jack Bewsher of the NDIA, due to change in carriage of the matter. Mr Bewsher confirmed that there had been no change in the Agency’s position.
On 18 July 2024, following a further remittal by the Tribunal under s 42D of the Administrative Appeals Tribunal 1975 (Cth) (AAT Act), the NDIA made a decision to approve a further statement of participant supports, resulting in the commencement of another NDIS plan for TRCH.
BACKGROUND
TRCH is a participant in the NDIS. TRCH lives with his mother in Sydney. TRCH attends a special education school for children with moderate to severe intellectual disabilities. This school goes to Year 12 and TRCH commenced high school in 2024. TRCH has been diagnosed with autism spectrum disorder (ASD) (level 3); intellectual disability; sensory processing disorder and attention deficit hyperactivity disorder (ADHD).
The evidence from TRCH’s treating paediatricians is that he has severe autism and a severe developmental disability.[2] They note that he has major behavioural problems including temper outbursts,[3] disrupted sleep, absconding, frequent meltdowns, and fussy eating. He is non-verbal.[4]
[2] Reports of Dr Phillip Emder, Consultant Paediatrician, 12 May 2016 (JTB at ST1, 183) and 21 February 2017 (JTB at ST3, 185).
[3] Ibid.
[4] Report of Dr Karl Pohre and Dr Pankaj Garg, Westmead Children’s Hospital, 8 December 2017 (JTB at ST4); report of Gail Tomsic and Dr Pankaj Garg, Westmead Children's Hospital, 7 September 2018 (JTB at ST5).
TRCH has intermittently received speech therapy for many years,[5] and has also had exercise physiology.[6] As a younger child he received speech therapy, occupational therapy and an early intervention learning program.[7]
[5] Report of Ms Lucas, speech pathologist, 11 May 2022 (JTB at ST14).
[6] Report of Ms Cindy Lee, exercise physiologist, 24 May 2021 (JTB at T6).
[7] Hearing transcript, 11 March 2024, 40.
NDIS Plan – 11 August 2020
On 11 August 2020, a delegate of the CEO of the NDIA (CEO) approved a statement of participant supports (SOPS), resulting in the commencement of a NDIS plan for TRCH on 11 August 2020 (August 2020 NDIS Plan).[8] The SOPS was for a notional duration of 12 months. This plan provided for flexible core funding of $8,105.96 which could be used for support work or other needs; capacity building (improved daily living) funding of $15,868.42, which allowed for fortnightly occupational therapy and weekly speech therapy; and $6,126.15 for behavioural support intervention and planning (30 hours). The core and capacity building funding were self-managed and the funding for behavioural support was Agency managed.
[8] JTB at T13, 66.
NDIS Plan – 27 August 2021
On 27 August 2021, a new SOPS was approved for TRCH for a notional duration of 12 months (August 2021 NDIS Plan).[9] This plan included flexible core supports of $8,641.88, including $200 for low-cost assistive technology; capacity building (improved daily living) funding of $11,639.40, including fortnightly occupational therapy and weekly speech pathology and another $6,126 for behavioural support. TRCH sought review of this plan.
[9] JTB at T14, 78.
Internal review decision – 25 October 2021
On 2 September 2021, Ms TRCH made a verbal request for an internal review under s 100 of the NDIS Act to be undertaken in relation to the August 2021 NDIS Plan.[10] The Agency document which records this contact notes that Ms TRCH would like what she requested to be reflected in the funding.
[10] JTB at T11, 63.
On 25 October 2021, a delegate of the CEO made an internal review decision under s 100 of the NDIS Act, affirming the decision to approve the SOPS in the August 2021 NDIS Plan (Decision Under Review).[11] At that time, the delegate quantified Ms TRCH’s requests as:
[11] JTB at T1A, 7.
1.Exercise Physiology x 53 hours;
2. Behaviour intervention x 25 hours;
3. Behaviour management plan x 30 hours;
4. Physiotherapy x 104 hours;
5. Speech therapy x 104 hours;
6. Speech therapy travel - $3,900;
8. Speech report writing x 12 hours;
9. Resource development (funded at therapy rate) x 26 hours;
10. Feeding therapy x 26 hours;
11. Occupational therapy x 80 hours;
12. OT assessment -$1,500;
13. 1:1 support in the home and community (quantity not specified);
14. Psychology x 52 hours per week (sic).
The delegate considered that the requested supports did not meet the ‘reasonable and necessary’ criteria under the NDIS Act as they were not ‘value for money’ or ‘effective and beneficial’.[12]
[12] Ibid.
AAT application for review
On 29 November 2021, Ms TRCH lodged an AAT Application for Review of Decision form (Application Form) with the Tribunal on the basis that the review was not conducted fairly and did not consider all the services that TRCH needs. Ms TRCH says that TRCH needs a different outcome so that he can have more opportunity and funds to assist with his daily activities.[13]
[13] JTB at T1, 6.
NDIS Plan – 19 April 2024
The CEO approved a further SOPS following remittal from the Tribunal resulting in the commencement on 19 April 2024 of a further NDIS plan for TRCH.[14] The notional duration of this SOPS is three months. This plan incorporates some changes sought by Ms TRCH. This plan contains core funding of $8,450.97, including for flexible support for daily activities within the home, $50 for low-cost assistive technology and $5,987.80 for social, community and civic participation (SCCP). It also contains capacity building (improved daily living) funding for skills development by allied health therapeutic interventions, including occupational therapy and psychology of $3,553.08; and $5,094.79 for 12 hours of specialist behaviour management support and 13 hours for a behaviour management plan and training in behaviour management strategies. It included $901.26 for support coordination. The plan specified that the approved funding for core supports and improved daily living were to be “plan-managed”, and the funding for behaviour intervention and management was to be “NDIA-managed”.
[14] Refer NDIS Plan 19 April 2024.
NDIS Plan – 18 July 2024
The CEO approved a further SOPS, following remittal from the Tribunal, resulting in the commencement on 18 July 2024 of a further NDIS plan for TRCH.[15] The notional duration of this SOPS is six months. This plan contains core funding of $16,901.94, including for flexible support with daily activities within the home, $100 for low-cost assistive technology and $11,975.60 for SCCP. It also contains capacity building (improved daily living) funding for skills development by allied health therapeutic interventions, including occupational therapy and psychology of $7,106.16; and $10,189.58 for 12 hours of specialist behaviour management support and 13 hours for a behaviour management plan and training in behaviour management strategies. It also included $1,802.52 for support coordination. The plan specified that the approved funding for all the supports was to be “NDIA-managed”.
[15] Refer NDIS Plan 18 July 2024.
ISSUES
The Tribunal must undertake merits review of the decision under review. The Tribunal will stand in the shoes of the original decision-maker who made a decision to approve a SOPS for TRCH, containing supports, a reassessment date, and stipulations as to how the funding and other aspects of the plan are to be managed. QDKH v National Disability Insurance Agency,[16] confirmed that the Tribunal has jurisdiction to look at all the reasonable and necessary supports for TRCH, including those supports raised in the course of these proceedings.[17] The Tribunal must remake the decision to come to the correct or preferable decision on the evidence before it.[18]
[16] [2021] FCAFC 189.
[17] Ibid, [8] (Rangiah, Perry and Abraham JJ).
[18] Frugtniet v Australia Securities and Investment Commission [2019] HCA 16, [14] ( Kiefel CJ, Keane and Nettle JJ).
Requests made by the Applicant
On behalf of TRCH, Ms TRCH sought the following:
(a)for the participant’s plan to be self-managed;
(b)funding for 50 hours per year of behaviour support therapy;
(c)funding for hydrotherapy and holiday programs;
(d)funding for 50 hours per year of physiotherapy;
(e)funding for 50 hours per year for a speech therapy aide and 50 hours per year for a speech pathologist, 2 hours for report writing and 12 hours for speech pathology intensives;
(f)funding for previous reports written by specialists on behalf of the participant;
(g)funding for a SOS Feeding Program at $7,759.90 for weekly sessions for a period of 10 months;
(h)funding for 104 hours per year for Occupational Therapy (OT);
(i)funding for 1:1 support in the home and community at the following frequency:
(i)2 hours per day, 7 days per week;
(ii)8 hours per day on Saturday and Sunday for Community Participation;
(iii)An additional 8 hours per day for 12 weeks during school and Christmas holidays.
(j)Funding for the following low-cost Assistive Technology (AT) items:
(i)A Vuly Play Gym at a cost of $1,999.00;
(ii)A Gravitron massage chair at a cost of $1,995.00;
(iii).A Jelly Fish chair at a cost of $189.95;
(iv)Fidget toys at a cost of $100.00;
(v)A visual liquid timer at a cost of $13.00;
(vi)An aquarium visual liquid timer at a cost of $15.00;
(vii)Thera putty at a cost of $18.50;
(viii)A Lycra bed sheet at a cost of $81.00;
(ix)A calming kids singlet at a cost of $66.00; and
(k)Funding for 40 hours per year of psychology.
The Respondent’s Position
The Respondent was of the view that the following requests and supports were reasonable and necessary:
(a)48 hours per year for Behaviour Intervention;
(b)52 hours per year for funding for a Behaviour Management Plan;
(c)60 hours per year for speech therapy;
(d)48 hours per year for occupational therapy;
(e)Funding for 12 hours per year of psychology;
(f)Funding for 12 hours per year for exercise physiology;
(g)Daily Living Support for personal care for 2 hours per day, 7 days per week (14 hours per week);
(h)Funding for 5 hours per week for SCCP supports (at the Saturday rate);
(i)Funding for 15 hours per week, 12 weeks per year (Christmas and school holidays) for Group Activities at the 1:3 ratio; and
(j)12 days (1 day per month) of Short-Term Accommodation (STA) at the Saturday rate at a 1:4 ratio.
The Respondent expressed concern at the plan being self-managed due to the method of expenditure of plan funds in the past, and the fact that Ms TRCH has spent money on support work services which had been unfunded and for which invoices remain unpaid. Its position was that the evidence did not support the other requests made by Ms TRCH.
Matters agreed at the commencement of the hearing
At the commencement of the hearing, the parties informed the Tribunal that they had agreed on the following:
(a)36 hours per annum of level 2 support coordination;
(b)plan management, including plan management setup costs and monthly plan management administration costs;
(c)48 hours per annum of behavioural intervention and 52 hours per annum for a behaviour management plan;
(d)12 hours per annum for psychology; and
(e)five hours per week of SCCP at a ratio of 1:1 on Saturdays.
Ms TRCH confirmed that she was no longer pursuing funding for physiotherapy or for previous specialist reports.
The parties agreed that the issues in dispute at hearing were therefore:
(a)exercise physiology - the Applicant is seeking 26 hours per annum and the Respondent is of the view that 12 hours is sufficient;
(b)speech pathology - the Applicant seeks 82 hours, and the Respondent is of the view that 60 will suffice;
(c)occupational therapy - the Applicant seeks 75 hours and the Respondent 48 hours;
(d)SOS feeding program - the Applicant seeks funding, and the Respondent is of the view that it cannot be funded;
(e)support worker hours – the Applicant seeks four hours per day six days per week (24 hours), and the Respondent offers two hours per day seven days per week (14 hours);
(f)transport funding for allied health professionals and activity-based transport of $9,282, being 10,920 km at $0.85 per kilometre;
(g)12 weeks of funding for school holidays - the Applicant says this should be for 32 hours per week at a ratio 1:1, and the Respondent says that it should be for 18 hours per week at a ratio of 1:3;
(h)12 days per annum of short-term accommodation - the Applicant says should be at a ratio of 1:1, whereas the Respondent says should be at a ratio of 1:4; and
(i)all the assistive technology (AT) requested by the Applicant.
LEGISLATIVE FRAMEWORK
The NDIA was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes the general principles guiding actions to be taken under the NDIS Act.

A participant’s plan must be prepared in accordance with the NDIS Act and regulations made under s 32 of the NDIS Act. It must include a SOPS. The SOPS must be approved in accordance with the NDIS Act, and any regulations made under the NDIS Act such as the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules).
The supports to be provided to a participant in a plan can be both general supports and supports funded under the NDIS (s 33(2)). General supports include coordination, strategic and referral services which may be provided both to participants in the NDIS and people with a disability who are not participants in the NDIS (s 13 of the NDIS Act).
Section 33(5) of the NDIS Act requires that the CEO (or delegate), in deciding whether to approve the SOPS under s 33(2), have regard to a number of factors including the participant’s statement of goals and aspirations and relevant assessments conducted in relation to the participant, and be satisfied that the supports to be funded by the NDIS are ‘reasonable and necessary supports’.
For the purposes of s 33(5)(c), the CEO must be satisfied of the matters set out in s 34:
(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:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, Agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
The NDIA must comply with an approved SOPS (s 39) and a participant (or a person on behalf of a participant) who receives funding under the NDIS must spend the money in accordance with the person’s plan (s 46). Provisions for the management of funding for supports in a participant’s plan are set out in Division 3, Part 2, Chapter 3.
Provision is made in s 17, s 27, s 34(2), s 35 and s 209 for the making of rules prescribing matters for and in relation to Chapter 3 of the NDIS Act. Rules of present relevance include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules), which have the force of law and provide that:
General criteria for supports

5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others; or
(b) it is not related to the participant’s disability; or
(c) it duplicates other supports delivered under alternative funding through the NDIS; or
(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):
(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;
(b) costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

Supports that will not be funded or provided

5.3 The following supports will not be provided or funded under the NDIS:
(a) a support the provision of which would be contrary to:
(i) a law of the Commonwealth; or
(ii) a law of the State or Territory in which the support would be provided;
(b) a support that consists of income replacement.
EVIDENCE AND SUBMISSIONS
Hearing and witnesses
Ms TRCH gave evidence at the hearing. The following additional four witnesses were called to give oral evidence at the hearing:
Called by Ms TRCH
(a)Ms Fatima Bazzi, social worker. Ms Bazzi provided a social work report for Ms TRCH. She observed TRCH but has not worked with him clinically.[19]
(b)Mr Patrick Jason, speech pathologist. Mr Jason provided a speech pathology report and set of recommendations and worked with TRCH for intensive speech therapy in December 2023 and January 2024.[20]
(c)Ms Mariam El Rifai, support worker. Ms El Rifai has provided support worker services to TRCH since mid-2021.[21]
Called by the NDIA
(a)Dr Michael McDowell, an independent paediatrician who conducted a file review of the documentary evidence. Dr McDowell did not perform a clinical examination of TRCH. Dr McDowell has worked in developmental delay and child behaviour for 30 years and was the first President of the Australasian Society for Developmental Paediatricians.[22]
[19] Hearing transcript, 11 March 2024, 39.
[20] Hearing transcript, 12 March 2024, 57.
[21] Hearing transcript, 12 March 2024, 69.
[22] hearing transcript, 12 March 2024, 90.
Documentary evidence
Pursuant to its obligations under ss 37 and 38AA of the AAT Act, the NDIA lodged a set of documents on 5 January 2022 (T-Documents) comprising 182 pages, and a further set of documents on 16 May 2023 (ST-Documents) comprising a further 112 pages.
The NDIA lodged a joint hearing tender bundle (JTB), comprising 435 pages, including the T-Document, ST-Documents, Respondent’s SFIC and other documents lodged by the parties, including a primary carer statement from Ms TRCH, dated 11 January 2024; and the Respondent’s updated Statement of Facts, Issues and Contentions (SFIC) dated 2 February 2024. The Tribunal also had copies of the NDIS plans dated 19 April 2024 and 18 July 2024.
REASONABLE AND NECESSARY SUPPORTS
TRCH’s current NDIS plan, dated 18 July 2024 contains the following:
My goals
Short-term goal
Ms TRCH would like TRCH to develop his expressive and receptive communication to enable him improve on his independence [sic]

How I will achieve this goal How I will be supported

Ms TRCH will be supported to find and link up with a Speech Therapist for TRCH

Speech will support TRCH with but not

limited to;

-    Communication skills like using

functional communication to

indicate what he wants and respond

consistently to simple 1 to 2 step

instructions.

-    Improve his visuals learning and

Understanding

-     Informal support will trained on how to

support and implement strategic plans

at home

-    TRCH school will be given a copy

on how to support TRCH this will

ensure that he is achieving his goals

in different environments.

How I will achieve this goal How I will be supported

Short-term goal

Ms TRCH would like TRCH to improve his ability to regulate his emotions and sensory needs to allow TRCH to participate
will achieve this goal How I w

How I will achieve this goal How I will be supported

Support from a Behavioural Therapist and Speech Therapist
The Therapist will support TRCH;

-    Develop strategies to calm TRCH

when he feels upset or frustrated.

-    Informal support will trained on how to

support and implement strategic plans

at home

-    TRCH school will be given a copy on how to support TRCH this will ensure that he is achieving his goal

Medium or long-term goal
Ms TRCH would like TRCH to interact socially with other children

How I will achieve this goal How I will be supported

Participating in social community activity.

Ms TRCH would like TRCH to develop

his safety awareness, remain beside

her when in public, know to hold her

hand when around roads and respond

appropriately when told to stop.

Ms TRCH to access vouchers for parent

guardians and care givers provided by the state government for all.

-    For TRCH to accept another child in

his company, initiate play and join in

play with a group of peers with adult

assistance.

-    Allied Health professionals to support

TRCH with achieving this plan goal

-    Informal support will assist TRCH

to participate and transport him to

activities

How I will achieve this goal How I will be supported
Medium or long-term goal
Ms TRCH would like TRCH to increase his attention span when participating in task
How I will achieve this goal How I will be supported

How I will achieve this goal How I will be supported

Support from allied Health professional,

school and informal support

Remaining engaged in activity for 5

minutes with adult assistance.

Medium or long-term goal
Ms TRCH would like TRCH to improve strength and coordination with his fine motors tasks so that he can complete some of his everyday self-care tasks
How I will achieve this goal How I will be supported

How I will achieve this goal How I will be supported

Support from allied health professionals

such She would like TRCH to develop

strength and coordination with his gross

motor skills so he can engage in play

activities such as catch and kick a big

ball independently and ride a bike with

assistance

Learning how to improve his writing

· improving on his pencil grip, zip up

a jacket, do buttons, open a packet

of chips, open jars and bottles with

minimal adult assistance.

· To learn how use the toilet

independently

· Improve on his personal care needs

like washing himself with verbal

direction,

· Learn how to follow direction to

complete task required

For a requested support to be funded it must meet both the provisions of s 34 of the NDIS Act and the Support Rules. Regard must be had to TRCH’s statement of goals and aspirations. While there is no formal onus of proof on TRCH, TRCH must be able to put forward sufficient evidence that the Tribunal is positively satisfied that all the statutory requirements are met.[23] The Tribunal therefore considered whether the statutory requirements were met in relation to each disputed support. This requires the Tribunal to be satisfied that each support meets all of the criteria set out in s 34 of the NDIS Act.[24]
[23] HPSC and National Disability Insurance Agency [2021] AATA 727, [85].
[24] McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121 at 38; National Disability Insurance Agency v WRMF (2020) 276 FCR 415 at 201.
Firstly, the Tribunal must concur with a statement made by Dr McDowell – there is no analytical review of the history:
And I read all of these therapy supports almost as if they were coming into the problem the first time. Like, there was no analytical review of the history and what had worked and what hadn’t worked; there was no hypothesis about why things hadn’t worked. I just read these reports as propositions, but just more of the same. It was highly unlikely that they were going to work. And from that point of view, I actually think it’s a bit harmful to the mother and to the child just to keep doing more and more stuff when it’s just not going to work without a reasonable proposition about why it hasn’t worked and how something needs to be different in order to work.[25]
[25] Hearing Transcript, 12 March 2024, 93.
In this case, there has been no review of what interventions have worked and what have not. There is limited evidence about methodology and frequency. While TRCH appears to have had multiple assessments over many years, there is very little evidence that he has had consistent therapy interventions. This creates a difficulty in forming the requisite view about which therapies are particularly beneficial for him as opposed to being generally beneficial. The Tribunal expects that, as a result of this plan, there will be evidence created to allow the Agency, and the Tribunal if necessary, to form a much clearer picture of the reasonable and necessary supports required by TRCH in the future.
Exercise Physiology
Both parties agreed that there should be some exercise physiology in the plan. The provision of exercise physiology to TRCH is consistent with the stated goal of improving TRCH’s strength and coordination. A report from Ms Cindy Lee, exercise physiologist, dated 24 May 2021,[26] notes that TRCH needs development of his gross motor skills to learn correct movement patterns. At that time, Ms Lee stated that she was doing 30 minutes per week of hydrotherapy with TRCH. She stated that the pool pressure assists TRCH to get used to a ‘lowered threshold of sensory processing’.[27] She stated they are attempting to reduce TRCH’s sensitivity to back floating so that TRCH can kick off the wall to build leg power. High-speed ball games are also being used to improve TRCH’s processing speed. TRCH was also attending weekly 30-minute land-based sessions focusing on using the correct muscles and movements for gross motor skills. While this report provides a future plan, it gives little information about progress, although it notes that TRCH had gone from being resistant to back floating to being able to back float for two laps of the pool, and that he is able to dive and come back up from the deep end of the pool.
[26] JTB at T6, 38.
[27]Ibid.
TRCH’s school recommends regular extracurricular activities and exercise physiology.[28] None of the school staff gave evidence at the hearing. A physiotherapy assessment in January 2023 noted that TRCH has below average gross motor function, low muscle strength, low postural endurance and difficult behaviour.[29] An occupational therapy assessment of June 2023 recommended that TRCH have access to hydrotherapy.[30] A behavioural assessment recommends that TRCH have exercise physiology and community access.[31] None of the professionals who wrote these reports gave evidence at the hearing, and both the school and the occupational therapist appear to have mirrored the requests made by Ms TRCH.
[28] Report of Audrey Hunt, school counsellor, April 2020, JTB at T4, 36; letter from Joanne Griffis and Leanne Billsborough 2 August 2021, 2 August 2021, JTB at T7, 41.
[29] Report of Anma Khan, physiotherapist, dated 9 January 2023, JTB at ST20, 259-60.
[30] Report of Trish Morada, occupational therapist, dated 3 June 2023, JTB at A21, 314.
[31] Report of Ana-Maria Tupou and Karolin Botrs, behaviour support practitioners, dated 9 July 2023, JTB at A23, 336.
The evidence given by Ms TRCH, Ms El Rifai and Ms Bazzi is that TRCH finds water soothing and showers frequently during the course of the day. He is able to shower less frequently if he is taken to the pool.[32] When considering the supports to be provided, the Tribunal is satisfied that none of these witnesses were independent third parties. Ms Bazzi acknowledged in her evidence at hearing that she sees herself as an advocate for Ms TRCH and TRCH.[33] Ms El Rifai has a conflict of interest, as she would likely be paid to do support work and attend some therapy appointments.
[32] Hearing transcript, 11 March 2024, 17, 28; Hearing transcript 12 March 2024, 71.
[33] Hearing transcript, 11 March 2024, 46.
The evidence of Dr McDowell was that the role of professional therapists in managing TRCH’s condition is really very small. His view was that the people who have the greatest involvement with TRCH day-to-day are the ones who need to be trained to provide TRCH with a therapeutic community.[34] He identified that Ms TRCH, support workers, classroom teachers and professionals should act as ‘co-therapists’,[35] with the professional therapists training the others involved in aspects of TRCH’s life. His view was that in using this model there would need to be a consultation with a professional for one hour per month for ‘course correction and resetting’.[36] It appears to be on this basis that the Agency has indicated that it is of the view that 12 hours per annum of exercise physiology would be sufficient.
[34] Hearing transcript, 12 March 2024, 102.
[35] Hearing transcript, 12 March 2024, 100.
[36] Hearing transcript, 12 March 2024, 102.
Dr McDowell impressed the Tribunal as a qualified, experienced, independent professional with sound knowledge of best practice and no conflicts of interest. His concern was the best model of care for TRCH and appropriate support for Ms TRCH:
And if I look into the future, I would regard the most important thing here is that, you know, the Applicant’s mother stays healthy and happy and optimistic and able to care for him, and just the practical workload of day-to-day life is a fair proposition for any human being, because, if it’s not, then, you know, breakage happens. People aren’t superhuman. So I put that as priority number 1, just day-to-day life is reasonable. The second one is day-to-day life for the Applicant himself. [37]
[37] Hearing transcript, 12 March 2024, 92.
For this reason, the Tribunal found his evidence to be highly persuasive.
There is some evidence that exercise physiology is beneficial for TRCH. In terms of the criteria to be examined in relation to the support under section 33(5) of the NDIS Act, the Tribunal is satisfied that this support will assist TRCH to pursue his goals by improving his strength and his sensory tolerance and that the support is likely to be effective and beneficial for TRCH. There are no other sources of funding for this support. Any improvements in his capacity are likely to facilitate his social and economic participation. The Tribunal finds that the provision of this support meets the criteria set out in s 33(5)(a),(b), (d) and (f) of the NDIS Act. There has been limited evidence presented about whether the cost of this support is value for money, but the Tribunal notes that the hydrotherapy component of the exercise physiology combines both the sensory and settling effects of water for TRCH, and the physical improvements in strength and coordination which could be expected from other supports such as physiotherapy or a gym program. There is also some evidence that TRCH made progress in hydrotherapy. This appears to be a reasonable therapy for TRCH to engage in. The Tribunal is satisfied that the support is value for money and while it is reasonable for Ms TRCH to continue to take TRCH to the local heated pool for recreation, the provision of exercise physiology in the form of hydrotherapy would be an adjunct to this. The Tribunal is therefore satisfied that exercise physiology, in the form of hydrotherapy, meets all the criteria set out in s 33(5) of the NDIA Act.
The Tribunal could not so be satisfied about the land-based component of the exercise physiology. The evidence before it does not indicate that TRCH derived any particular benefit or improvement from engaging in this program, nor that those benefits could not be achieved by the occupational therapy both parties acknowledge is required.
The Tribunal considered how many hours of exercise physiology, in the form of hydrotherapy, should be provided to TRCH. The evidence before it is that TRCH made some improvements by attending 30-minute sessions weekly. The evidence did not indicate over what time period that he attended these sessions. It appears to be an activity that he enjoys, and which contributes to his behavioural management, his strength, and his sensory processing.

The Tribunal considered the positions of both parties. It formed the view that 12 hours of exercise physiology per year would likely be insufficient. This allows no time for the exercise physiologist to train Ms TRCH and support workers in the necessary techniques or for them to liaise with other key therapists, such as TRCH’s occupational therapist, to ensure that all the therapy supports, and other supports, are working on the same skills. It also seems to allow no time for report writing. If the therapy interventions are to progress on the model proposed by Dr McDowell, adequate time for these additional tasks is critical, especially initially.
Consequently, the Tribunal is satisfied that it is reasonable and necessary to fund 18 hours of exercise physiology in TRCH’s plan, and doing so meets the requirements set out in s 34(1) of the NDIS Act. This allows for one hour per month for hydrotherapy and provider travel, two hours for report writing and four hours for training and liaison. The evidence of Ms TRCH and Ms El Rifai is that they try to attend the local heated pool with TRCH most afternoons. If they are provided with the training and techniques to progress his hydrotherapy, they can do so as part of their normal activities.
Speech pathology
Both parties agree that speech pathology is reasonable and necessary for TRCH. Ms TRCH seeks 82 hours per annum of speech therapy, plus travel. In Mr Jason’s report, he recommends that TRCH receive 50 hours per annum with a speech therapist, 50 hours per annum with a speech therapy aid, 12 hours per annum of speech therapy intensive and two hours of reporting, a total of 114 hours per annum.[38] In his evidence at hearing he revised this recommendation to 30 minutes per week with a speech pathologist, 30 minutes per week with a speech pathology aide, and 12 hours per annum of intensives. Allowing for a two week break at Christmas this would be 62 hours. The Agency is of the view that 60 hours per annum is reasonable and necessary.
[38] Report of Mr Patrick Jason, speech pathologist, 9 December 2023, JTB at A31, 400.
Mr Jason stated that evidence-based research has identified that having speech pathology twice a week with two different speech pathologists is more beneficial than the typical program of 30 minutes per week. It is also beneficial to have these sessions in a range of forums including the clinic, home, and school in order to assist with generalised communication skills across environments.[39] Mr Jason gave the opinion that TRCH’s expressive language skills are at an age equivalent of less than one year but that his receptive language skills are higher. He is able to follow commands and gestures, although he does not interact with another person unless he wants something.[40] Mr Jason stated that he had observed improvements in TRCH’s communication skills during his period of intensive sessions as, by the end of the three sessions, TRCH was able to use the skill of tapping on his chest to ask for something, which had been taught to him in the first session.[41] Mr Jason confirmed that part of the role of a speech therapist would be to pass those skills on to the others in TRCH’s life, like Ms TRCH, Ms El Rifai and the school.
[39] Hearing transcript, 12 March 2024, 54-56.
[40] Hearing transcript, 12 March 2024, 58.
[41] Hearing transcript, 12 March 2024, 57.
Mr Jason agreed that TRCH has made slow progress with therapy.[42] He also agreed that there is a natural overlap between speech therapy and occupational therapy, particularly in areas like teaching the following of instructions.[43] He said that his plan for TRCH would be for him to initially be able to request objects and actions, then move to 2-step instructions, eye contact, turn taking and basic name recognition. He said that the funding for speech therapy would need to include travel because of the necessity of seeing and working with TRCH at his home and school.[44]
[42] Hearing transcript, 12 March 2024, 108.
[43] Hearing transcript, 12 March 2024, 109.
[44] Hearing transcript, 12 March 2024, 110-111.
Dr McDowell noted that TRCH has had access to therapy supports for nine or 10 years and is still operating at one year old level.[45] He was of the view that most of TRCH’s learning would happen through behavioural repetition and that TRCH’s failure to learn so far is not due to fragmentation of therapy but to how his brain works.[46] He was not of the view that any type of therapy should occur more frequently than monthly.
[45] hearing transcript, 12 March 2024, 93.
[46] Hearing transcript, 12 March 2024, 100.
The parties do not dispute that the support of speech therapy meets the requirements set out in s 34(1) of the NDIS Act, and the Tribunal agrees. As TRCH is non-verbal and has not been taught to use communication boards or other alternative communication methods, the Tribunal considers it to be a crucial support to enable TRCH to participate fully in the activities of his life. Identifying a method of communication that works for TRCH is essential. The Tribunal must determine how many hours of speech therapy are reasonable and necessary.
The evidence before the Tribunal is that TRCH’s inability to communicate effectively is a key contributor to his level of functional impairment. Not only can he not express his wants and needs, his inability to do so appears to cause him considerable frustration and to contribute to his ‘meltdowns’ and behavioural difficulties:
[TRCH] is non-verbal and relies heavily on non-verbal communication methods such as gestures, facial expressions, and vocalisations, to communicate his wants and needs. [TRCH] experiences immense amount of difficulty to verbally express his emotions. In instances where this occurs, he may feel frustrated by the perceived inability of others to understand him. These feelings can result in behaviours of concern escalate to physical aggression towards himself and/ or others.[47]
[47] Report of Ana-Maria Tupou and Karolin Botrs, behaviour support practitioners, dated 9 July 2023, JTB at A23, 332.
The Tribunal noted that, ultimately, the recommendation of Mr Jason is for two 30-minute sessions of speech pathology per week with two different practitioners; 12 hours of intensives in school holidays; two hours for report writing, and provider travel to enable the necessary activity of working with TRCH at his school and home. This is 64 hours per annum plus travel. Mr Jason also gave evidence that TRCH had been able to learn communication techniques during his intensive sessions of speech therapy, so it appears that this therapy is likely to be effective and beneficial for TRCH at a higher intensity. Ms TRCH’s evidence was that TRCH’s communication skills improved during the period of December 2023 and January 2024 when he was seeing Mr Jason on a regular basis.[48]
[48] Hearing transcript, 11 March 2024, 30.
The Tribunal considers it appropriate for the two sessions per week of speech pathology to occur during the 40 weeks of school term, with intensive sessions during the school holidays. This would make 54 hours per annum, plus travel, when report writing is included. Allowing for the speech pathologist to provide training to Ms TRCH and support workers and to liaise with TRCH’s other practitioners and school would bring the total number of hours to 60 hours per annum, without travel.
In this case, provider travel is essential. The speech pathologist must work with TRCH at home and at school, and also work with the school, to maximise the benefit of the therapy. Ms TRCH gave evidence that she considers that having therapy at school benefits TRCH and it is necessary to retain this.[49] Dr MacDowell’s evidence is that the therapists must attend TRCH’s school and work with the school, as this is the primary place for capacity building.[50] While it is apparent that only a portion of TRCH’s speech pathology appointments need to be at school or home this will require the provider to travel, as will observing TRCH at school and the techniques being used to communicate with him in the school community with a view to ensuring these techniques are consistent across all areas of his life.
[49] Hearing transcript, 11 March 2024, 18.
[50] Hearing transcript, 12 March 2024, 92, 103.
The Tribunal finds that the reasonable and necessary support for speech therapy under s 34 of the NDIS Act is 60 hours per annum of speech therapy, plus 15 hours for provider travel - a total of 75 hours per annum. The Tribunal expects that the intensity of this support will reduce in future plans - either because TRCH has made progress and those people who are involved in his life have been appropriately trained; or because it has been clearly demonstrated that TRCH is unable to benefit from this therapy.
Occupational therapy
Both parties also agreed that occupational therapy is reasonable and necessary. Ms TRCH seeks 75 hours plus travel and the Agency considers 48 hours to be appropriate. The evidence of Ms TRCH and Ms El Rifai is that TRCH is still unable to wipe himself after going to the toilet, does not wash his hands, and has significant sensory issues around food and masturbation. There are three different occupational therapists who have presented reports although there is a variety of approaches to the number of hours suggested. Ms Zebib gives an opinion that TRCH requires 80 hours of occupational therapy per annum.[51] Ms Morada opines that TRCH requires twice weekly 1:1 occupational therapy sessions.[52] Mr Hosari recommends 50 hours of occupational therapy per annum.[53]
[51] Report of Carmen Zebib, occupational therapist, 16 July 2021, JTB at T9, 51.
[52] Report of Trish Morada, occupational therapist, 3 June 2023, JTB at A21, 313.
[53] Report of Ibrahim Hosari, occupational therapist, 29 November 2023, JTB at A28, 364.
Dr McDowell’s evidence was that the best model of providing support to TRCH is by therapists training Ms TRCH, support workers and classroom teachers in the techniques required to ensure consistency across all the areas of TRCH’s life rather than 1:1 therapy appointments at a high intensity.[54] He said that it is the practice of these skills at home and in other environments which gives the benefit, not what happens in the therapists’ rooms. His evidence was that if he were guiding TRCH’s therapy, he would get the therapists to go into the school to find out what is happening so that all the parties can move towards the goal of coherence.[55]
The professional therapies might give some advice, but the administration of professional methodologies happens in the children’s worked and their ecological system. And if the targets are very precise and the intervention is just relentless and opportunistic and ecological, that’s my opinion about how you get the best capacity building. But the idea that he goes and has one-to-one therapy with a therapist and stuff like that, it’s just my opinion it’s a waste of time because it’s just not going to work.[56]
[54] Hearing transcript, 12 March 2024, 100.
[55] Hearing transcript, 12 March 2024, 103.
[56] Hearing transcript, 12 March 2024, 98.
The multiple occupational therapy assessments on file give no indication that TRCH has benefited from any of the occupational therapy provided to him in the past. Dr McDowell’s evidence is that what is happening in TRCH’s brain is that he is really having trouble learning and that because his brain does not comprehend things his development has not shifted much as a result of therapy. He could not see that more of the same is justified.[57]
[57] Hearing transcript, 12 March 2024, 98.
The evidence indicates that TRCH engages in sensory soothing and stimulating behaviour such as frequent showering and frequent masturbation which is increasing now that he has reached puberty.[58] Ms TRCH explained that he makes her leave the room when he wants to masturbate, but that a consequence of the frequent masturbation is a need to shower several times a day and also for Ms TRCH to change his sheets and underwear.[59] Understandably, Ms TRCH was keen for TRCH to engage in sensory activities which would reduce his reliance on this activity for self-soothing. The sensory work done in occupational therapy will be very important in identifying and supporting alternative activities. These are activities which will need to be done at home, not in a therapeutic setting.
[58] hearing transcript, 11 March 2024, 19.
[59] Ibid.
On the evidence before it, the Tribunal could not form a view that more than 48 hours per annum of occupational therapy, including 1:1 therapy appointments; training of Ms TRCH, carers and classroom teachers; and travel; is likely to be effective and beneficial for TRCH. 48 hours of occupational therapy per annum would allow for fortnightly appointments with TRCH and Ms TRCH, plus assessment and training at school, and provider travel. The Tribunal finds that 48 hours per annum of occupational therapy is a reasonable and necessary support under s34(1) of the NDIS Act.
SOS Feeding Program
Several reports have recommended that TRCH attend an SOS feeding program.[60] No detailed information has been provided about such a program and how it differs from the other supports previously provided to TRCH such as speech therapy, occupational therapy, and attendance at a dietician. There has also been a recommendation that TRCH be funded for 30 hours with a dietician to do a feeding program.[61] The Tribunal notes that TRCH’s paediatrician, Dr Emder, records that TRCH was referred to a feeding program at Westmead Children’s Hospital but was refused.[62] This would indicate that he did not meet the requirements for such a program, although the reasons for this refusal and any feeding assessment which was conducted at that time are not before the Tribunal.
[60] Report of Ms Tara Taylor, speech pathologist, 22 July 2021, JTB at T10, 59; report of Ms Elizabeth Lucas, speech pathologist, 11 May 2022, JTB at ST14, 242; report of Jennifer Hoskings, occupational therapist, 15 June 2023, JTB at A22, 318.
[61] Report of Ibrahim Hosari, occupational therapist, 29 November 2023, JTB at A28, 364.
[62] Report of Dr Philip Emder, 11 August 2016, JTB at ST2, 184.
Ms Taylor has noted that:
[TRCH]’s mother reported that she has significant difficulty feeding [TRCH]. He goes long periods without eating and will fight against eating many foods. [TRCH] will only eat when his mother assists him to and he does not eat with other people or in other environments such as school. [TRCH] has significant difficulty chewing foods and this was observed during the assessment. His mother reported that he requires approximately 70-80 chews per bite, before swallowing food and mealtimes can last for 1 hour or longer. [TRCH] also avoids certain foods and requires a more balanced diet…[63]
The Tribunal notes that the information about feeding in Ms Lucas’ report is identical to the report from Ms Taylor and appears to be a ‘cut and paste’.
[63] Report of Ms Tara Taylor, speech pathologist, 22 July 2021, JTB at T10, 56.
Since the date of Ms Taylor’s report, TRCH has worked with a dietician on his feeding. Ms TRCH’s evidence is that TRCH does tend to eat grass and dirt but she now substitutes raw mint, parsley and spinach for this on the advice of the dietician.[64] Ms TRCH said that TRCH is not eating independently at school and his lunchbox often comes back full. He has specific foods that he does not like, such as bread and pasta, which seems to be related to the texture and smell. He prefers crunchy snacks, meat and vegetables. He will get himself a drink of water if he needs it and takes snacks to his room to eat.[65] He will not eat yoghurt or eggs and has a limited choice of vegetables, such as corn, peas and cucumber.[66]
[64] Hearing transcript, 11 March 2024, 16.
[65] Ibid.
[66] Hearing transcript, 11 March 2024, 17-18.
Ms El Rifai stated that TRCH has ‘meltdowns’ about eating. He avoids eating meals and screams and cries. He spits out food. Ms El Rifai stated that it is a struggle to get him to eat a meal, even with her and Ms TRCH together. It takes a long time to get him to eat and he may be crying and become physically violent. He is sometimes crying the whole time that he is eating.[67]
[67] Hearing transcript, 12 March 2024, 69-70.
Mr Jason’s report contains a recommendation that TRCH attend an SOS feeding program:
A feeding therapy program, such as the SOS (Sequential-Oral-Sensory) approach to feeding is recommended to improve [TRCH’s] feeding habits, his oral intake and nutrition. [TRCH’s] speech therapy intervention will maximise his engagement, independence, and social relationships. This is important to enable [TRCH] to participate and contribute within his schooling and the community…[68]
[68] Repot of Mr Patrick Jason, 9 December 2023, JTB at A31, 399.
At hearing, Mr Jason acknowledged that he is not a feeding specialist, although Ms Lucas is. He stated that, from what he has heard, the SOS feeding program is the ‘gold standard’ and this is why he recommended it, but he did not have specific knowledge about the program.[69]
[69] Hearing transcript, 12 March 2024, 59.
Dr McDowell’s report states that in his opinion TRCH’s feeding problems relate to his behavioural issues as a result of his developmental age, not to problematic aversive behaviour:
4.11.1 I read no evidence that [TRCH] has a feeding disorder beyond what would be expected for his overall developmental level. His feeding is described in OT reports (e.g. 3.9) and his mother’s statements of lived experience (3.13). I note she is able to feed him snacks and take-away foods, and take him to restaurants.
4.11.2 Feeding therapy involves examination of what (type, texture, size) is provided to eat, along with motivational strategies to modify behavioural resistance to eating, such as aversive behaviour. I read that meals take a long time, but I did not read problematic aversive behaviour.
4.11.3 My presumption of cause regarding any feeding problems would be firstly developmental (skills at the level of a 1-2 year old child), and secondly distraction. Beyond these presumptions I read little to justify feeding therapy. If this is the case, I would recommend feeding support to be a task of home supports.[70]
[70] Report of Dr Michael McDowell, 23 April 2023, JTB at ST22, 286.
At hearing Dr McDowell stated that a feeding program would not be best practice for TRCH:
There is a difference between just a kind of a non-specific approach, which is, ‘He needs a feeding progress,’ versus a very specific intervention to modify a specific problem. If he had a specific problem, so, for example, he had difficulty chewing food substances that were textural, like, you know, softer meats and things like that, if there was quite a specific problematic and there was a clear methodology to address that problem, then I would support the therapy. But I didn’t read it as that. I read it as just a general problem, ‘Let’s go and see a dietician and do feeding therapy because he’s a fussy eater and he’s a difficult eater.’ And he’s had lots of it already, and I just couldn’t actually see that it was best practice, because I couldn’t actually see the purpose of it.[71]
[71] Hearing transcript, 12 March 2024, 94.
Dr McDowell was of the opinion that if TRCH has a sensory aversion or preference for a certain type of food then it may be fighting an unnecessary fight to try and get TRCH to eat that food. If he does need that food, the way to deal with the sensory issues is to gradually introduce it, which should be done at home, not in a therapeutic setting:
So if he’s hypersensitive to potato, for example, you might change how a potato is administered, add things to it so it’s less unpleasant and more attractive, and then just build it up in little bits. So the actual strategy is pretty simple; it’s just an elaboration of feeding a fussy toddler. So this whole idea that feeding therapy is going to fix it, I just – you know, my experience is that just slow patient intelligence is the way you win it, and it’s, you know, it’s not some short-term magic therapy that somehow manipulates him into taking something that he doesn’t want.[72]
[72] Hearing transcript, 12 March 2024, 94.

Dr McDowell stated that blood tests to determine if TRCH has nutritional deficiencies plus an analysis of what he eats with a nutritionist, combined with his general growth, would indicate if TRCH has a feeding problem which requires feeding therapy.[73] There is no evidence before the Tribunal that TRCH’s growth is impacted by his diet. The evidence from Dr Emder was that TRCH’s blood tests were normal despite his limited diet and his height and weight were in the 90^th percentile.[74]
[73] Hearing transcript, 12 March 2024, 105.
[74] Reports of Dr Philip Emder, 12 May 2016; 21 February 2017; JTB at ST1 and ST3, 183, 186.
In Dr McDowell’s opinion, TRCH has pica, a disorder in which children (in particular) eat things which are not food. As there is no indication that TRCH has a nutritional deficiency which is causing the pica, the appropriate way to manage this condition is behaviour management around that particular habit.[75]
[75] Hearing transcript, 12 March 2024, 105.
Ms TRCH stated that she no longer takes TRCH to restaurants due to his behaviour. She asked Dr McDowell how a 12-year-old without a disability would behave in a restaurant. His response was:
[it] is down to his level of developmental comprehension. If the child understands restaurants at a one-year-old level, then I would expect him to behave at a one-year-old level…if your son’s ability to understand what restaurants are all about is not much better than a one-year-old, that is how he’s going to think about restaurants and his behaviour will reflect that, but it’s behaviour in a 12-year-old body…expecting therapy to make your son the same as a 12-year-old, I just think that’s not a reasonable proposition.[76]
[76] Hearing transcript, 12 March 2024, 103-104.
The Tribunal is satisfied that TRCH is a fussy eater and has a limited diet. Meals take a long time and TRCH exhibits frustrated and angry behaviour around mealtimes. He also has pica, eating grass and dirt. There is no evidence that TRCH has nutritional deficiencies or a growth disorder as a result of his diet and he is able to independently eat snacks and food that he likes and get himself water. He simply has significant behaviours around foods that he does not want to eat. The Tribunal accepts the evidence of Dr McDowell that this is likely developmental and will not be addressed by feeding therapy in addition to the speech therapy, occupational therapy and 100 hours of behavioural intervention and management planning to which the parties have already agreed.
On balance, the Tribunal was unable to form a view that a feeding program would be effective and beneficial for TRCH as set out in s 34(1)(d). As a consequence, it was unable to find that this is a reasonable and necessary support which should be included in TRCH’s NDIS plan.
Regular support worker hours
Ms TRCH seeks four hours per day of assistance from a support worker for six days per week (24 hours). The Agency is of the view that two hours per day for seven days per week (14 hours) is reasonable and necessary. The Agency appears to have formed this view on the basis of Dr McDowell’s report in which he says that two hours of 1:1 support each school day should be sufficient, with an additional two hours of 1:1 support on weekend days.[77]
[77] Report of Dr Michael McDonnell, JTB at ST22, 287-288.
The Tribunal notes that this does not specifically take into account Dr McDowell’s view that feeding supports should be a task of home support; that the support workers who work with TRCH will need to be trained by his therapy team, and will therefore require the time to attend therapy appointments; or that the support workers, in conjunction with Ms TRCH, will be responsible for implementing these therapeutic interventions across TRCH’s day. In his report, Dr McDowell notes that TRCH requires care in almost all areas, as would a very young child, but in contrast to a very young child, the provision of care to TRCH is made more difficult due to his age, size and challenging behaviours.[78]
[78] Ibid, 282.
At hearing, Dr McDowell acknowledged that the two hours of support work per day was simply for physical tasks such as feeding TRCH, getting him ready for bed and bathing him. He said that this time was about function rather than therapy.[79] Nonetheless, if this functional time is to incorporate consistent therapeutic approaches to managing TRCH in a therapeutic community as suggested by Dr McDowell, the support workers are going to require additional time to liaise with TRCH’s therapists, learn techniques and provide feedback. There also needs to be some time provided for support workers to attend the local heated pool with TRCH on some afternoons in order to assist him with his hydrotherapy in a non-clinical environment, and to give Ms TRCH some respite. This could all be incorporated into some additional funding for the purpose of SCCP at a weekday rate. This would be consistent with the goals of improving TRCH’s skills and putting him in a position where he is willing and able to play with other children.
[79] Hearing transcript, 12 March 2024, 103.
Ms El Rifai holds a Diploma of Community Services and a Statement of Attainment in Implementing Restrictive Practices. Ms El Rifai’s evidence was that she has been working with TRCH since mid-2021 and that she has worked with him regularly for 4 to 5 hours per day, including Saturdays and Sundays. On average, it would have been between 20 and 30 hours per week. Ms El Rifai said that she has sometimes worked for seven hours if it has been necessary.[80] The Agency noted that this degree of support work was not funded in the August 2021 plan.
[80] Hearing transcript, 12 March 2024, 83.
Ms El Rifai stated that she takes TRCH to the local heated pool and to the shops. She also assists with mealtimes and personal care. She stated that she has to take him to the toilet and uses a disabled toilet when they are out in the community. She needs to wipe him after urinating and defecating and also needs to wash his hands for him. He cannot toilet alone. He can wash his body in the shower, but not his hair. She stated that his mood has changed since he has commenced puberty and he is now more difficult to manage. She explained that TRCH drags her around to show her what he wants and that he has also grabbed her and head-butted her.[81]
[81] Hearing transcript, 12 March 2024, 71 - 75.
Ms El Rifai stated that TRCH has now reached the point where sometimes she feels like he needs more than 1:1 support. She thought that he had been more compliant before he became a teenager. He will grab and try to hit other people if he has a meltdown during community access. She said that he can come out ‘ready to attack’[82] and that he is fast. She said that she has to hold his hand during community access because he will walk ahead or run off. When they go to the shops he will run behind the counter and take what he wants. He has no concept of road safety.[83] Ms El Rifai stated that there have been some improvements in TRCH’s skills as now he will hold a fork and spoon; stay on the toilet more; flush the toilet more often; stay at the sink to have his hands washed; and let the staff at the shop scan the snack he has picked.[84]
[82] Hearing transcript, 12 March 2024, 75.
[83] Hearing transcript, 12 March 2024, 77-78.
[84] Hearing transcript, 12 March 2024, 76-77.
Ms El Rifai stated that even spending a short amount of time with TRCH is challenging and takes a toll. She was of the opinion that Ms TRCH is sleep deprived and is unable to sleep restfully because of her fear that TRCH will abscond from the home.[85]
[85] Hearing transcript, 12 March 2024, 89.
Ms TRCH works as a casual teacher and is currently employed full-time — although she does not work during school holidays. Ms TRCH has a neck and back injury which impacts on her ability to undertake the physical care tasks required by TRCH.[86] She explained that she has to take TRCH to her own physiotherapy appointments because she has nobody to look after him. She has no family support. Her parents and sister live nearby but are not supportive of her and do not assist her with TRCH’s care. In fact, they have recently put their house on the market with the intention of returning to live overseas. This will leave Ms TRCH and TRCH as the only family members left in Australia. Ms TRCH described this as a ‘big thing’,[87] even though they only see her family for an hour or two a couple of times per week. Ms TRCH has required psychological support herself to deal with the attitude of her family.[88] Ms TRCH described herself as suffering from carer burnout.[89] She stated that this burnout affected her ability to follow through with the speech pathology ‘homework’ given to her by Mr Jason.[90]
[86] Hearing transcript, 11 March 2024, 21.
[87] Hearing transcript, 11 March 2024, 23.
[88] Hearing transcript, 11 March 2024, 22.
[89] Hearing transcript, 11 March 2024, 21.
[90] Hearing transcript, 11 March 2024, 31.
Ms TRCH stated that, in her opinion, TRCH’s meltdowns are becoming worse and that the school has informed her that he has been hitting people at school and hitting his support worker at school.[91]
[91] Hearing transcript, 11 March 2024, 32.
Most of the professional reports before the Tribunal recommend that TRCH be provided with support work services and respite. These recommendations vary, and most do not specify the number of hours which should be provided. Dr Zondiwe Mwanza, consultant paediatrician, has supported access to respite for Ms TRCH as TRCH requires extensive supervision, support and behavioural intervention.[92] Mr Hosari recommends 10 hours per week of home based assistance, plus eight hours per day of community participation on a Saturday and Sunday.[93] Ms Bazzi recommends two hours per day for personal care, seven days per week plus five hours of social, community and civic participation on a Saturday.[94] Ms Morada initially recommended 10 hours per week for respite, therapy and personal care.[95] In an unsigned supplementary report she changed this recommendation to 30 hours per week of core support work plus an additional 15 hours per week for school holidays.[96] The Tribunal must treat this recommendation with caution as the document on which it is made is not signed and is not on letterhead, as with the initial recommendation, and Ms Morada did not give evidence at the hearing to clarify this change of position.
[92] Report of Dr Zandiwe Mwanza, consultant paediatrician, 8 August 2022, JTB at A27, 345.
[93] Report of Ibrahim Hosari, occupational therapist, 29 November 2023, JTB at A28, 363.
[94] Report of Ms Fatima Bazzi, social worker, undated, JTB at A30, 390.
[95] Report of Trish Morada, occupational therapist, 3 June 2023, JTB at A21, 314.
[96] Supplementary report of Trish Morada, occupational therapist, 3 June 2023, JTB at A21, 339.
Notwithstanding the conflicting evidence, the Tribunal can identify that there is broad consensus that TRCH requires at least two hours per day of 1:1 assistance with self-care and activities of daily living. There is no consensus about the amount of time which should be provided for SCCP, although the reports, including that of Dr McDowell, indicate that 1:1 assistance is required for activities in the community. The reports about TRCH’s behaviour indicate that he is difficult to manage.
The Tribunal is satisfied that two hours per day, seven days per week of support at a ratio of 1:1 is reasonable and necessary for TRCH for self-care and activities of daily living, taking account of the factors in s 34(1) of the NDIS Act. The Tribunal finds that this is insufficient to meet TRCH’s needs, however, because he also needs some time in the community with a support worker through the week, particularly attending the local swimming pool, which helps him to self-regulate. Support workers would also need additional time to attend therapy appointments with TRCH so that they can learn and apply a therapeutic approach to TRCH’s daily life. On balance, the Tribunal is satisfied that it would be reasonable and necessary for TRCH to also be provided with an additional three hours per week of 1:1 support work for weekday community access; and a further one hour of 1:1 weekday support for the purpose of the support worker being trained in implementing therapy. This would usually occur by them attending therapy appointments with TRCH. These hours should be able to be used flexibly across weekdays as TRCH and Ms TRCH require.
The Tribunal therefore finds that TRCH’s NDIS plan must include two hours per day of 1:1 support for personal care and activities of daily living; three hours per week (weekday) of 1:1 support for SCCP and one hour per week (weekday) of 1:1 therapy support.
The parties have agreed to five hours of SCCP on a Saturday. The evidence before the Tribunal indicates that this is a reasonable and necessary support for TRCH, which will supplement the weekday activities and give Ms TRCH a more meaningful break. Dr McDowell’s evidence was that five hours of SCCP on a weekend is reasonable to give Ms TRCH respite and time to attend to other family activities, but that from a clinical perspective a longer time would likely be tiring for TRCH. Noting that both the five hours of SCCP and the STA is to be provided on a Saturday, Ms TRCH will have access to five extra Saturday hours each time that TRCH attends STA to extend some of these sessions of SCCP if required. TRCH will still be provided with two hours of support on a Sunday, and it is reasonable that Ms TRCH does not have further support on a Sunday. The total support hours for at home supports, community access and therapy will therefore be 23 hours per week, plus STA.
The Tribunal finds that this support has been reasonable and necessary and has met the requirements set out in s 34(1) of the NDIS Act since the August 2021 NDIS plan.
School holidays and STA
Ms TRCH seeks 32 hours per week of 1:1 supports during school holidays. The Agency is of the view that 18 hours per week of 1:3 support is appropriate.
The parties have also agreed to 12 days per year of STA, but the care ratio for this is also disputed, with the Agency’s position being that 1:4 is reasonable and necessary, and Ms TRCH seeking 1:1.
The Tribunal notes that, as Ms TRCH is a casual teacher and does not work over the school holidays, although she may have some work to do, the hours of care that she seeks are equivalent to TRCH’s school attendance. It is normal for parents of school aged children to have the children home for the school holidays. This is particularly the case for older children who are too old for mainstream vacation care programs. Of course, these children would also be able to spend some time independently in the community and at the homes of friends, which is not accessible for TRCH. Nonetheless, the Tribunal finds that providing care during school holidays for 32 hours per week does not take account of what it is reasonable for Ms TRCH to provide, and so does not meet the criteria set out in s 34(1)(e).
The Agency has proposed 18 hours of care per week during the school holidays. In addition to the increased supports for self-care and activities of daily living; and SCCP and therapy which will result from this decision, this amounts to 41 hours per week of care during the school holidays – a substantial amount.
At issue is also the care ratio at which this care is to be provided. Dr McDowell’s evidence is that the support level required is different depending upon the activities involved. For community access, TRCH would require 1:1 support. For a disability specific holiday program which is appropriately secured and caters to children with TRCH’s needs, Dr McDowell thought that a care ratio of 1:3 would likely be sufficient, and if respite was to be provided in a group home arrangement, which was also disability specific, 1:4 would likely be suitable. Dr McDowell noted that he has not met TRCH and therefore does not have ‘an intuitive clinical feel for the level of support he needs just to be safe’:[97]
If it’s a group program behind a fenced area with disability-trained service providers, then one-to-three, I think, would be entirely appropriate if they know what they’re doing, you know, but if it’s just him by himself out in the community, you probably need a higher level of one-to-one for the safety reasons I mentioned before.[98]
100.Ms TRCH’s evidence was that TRCH’s class at school consists of six pupils, one teacher and one SLSO.[99] This a ratio of 1:3. She also gave evidence that TRCH’s lunchbox comes home full; that he comes home in dirty underwear because he has not been toileted with the assistance he requires; and that he is hitting the staff and students at school. Nonetheless, he currently spends his school day in this care ratio and there is no evidence that the above shortcomings relate to the care ratio. They could be due to the quality of care that he is receiving, a miscommunication about TRCH’s needs, short staffing, staff training or a number of other factors.
[97] Hearing transcript, 12 March 2024, 95.
[98] Hearing transcript, 12 March 2024, 96.
[99] Hearing transcript, 11 March 2024, 23-24.
The Agency confirmed that its intention is for the holiday care and STA to occur in disability specific programs and facilities with trained staff which cater to children with issues like TRCH’s, and are intended to keep him safe. He will need to spend time with other children in supported play in order to meet the goal of being able to socialise with other children. This is not facilitated by always providing him with 1:1 supports.
The Tribunal considered the evidence about TRCH. He requires routine and repetition. He can be aggressive. He is non-verbal and has frequent meltdowns. He requires 1:1 support for community access. He currently attends school at a ratio of 1:3. The Tribunal did not have any evidence before it to indicate that TRCH would not be able to attend holiday care and STA in the ratios suggested by the Respondent (other than Ms TRCH’s understandable concern), provided that the facilities in which such care occurs are secure and the staff appropriately trained. Only time will tell if these ratios do not work. A trial of care conducted in such a manner will produce observations and incident reports with which to guide future supports. It may be that TRCH requires a higher care ratio even in disability specific settings, but this has simply not been tested.
The Tribunal was concerned that, with TRCH’s need for routine and the fact that he is non-verbal, it is unrealistic to simply expect him to transition into such arrangements without additional support. While he attends school at a ratio of 1:3, this is in a very familiar environment, with familiar staff and peers. The Tribunal is of the view that TRCH will need to be supported by his usual support workers while he starts this transition. These workers will be able to offer him security and familiarity while imparting their knowledge to the workers in these new environments. For this reason, the Tribunal decided that it is reasonable and necessary to provide an additional 20 hours of support work for the purpose of transitioning TRCH into holiday care and STA. This would allow his usual workers to attend with him at the beginning of each day for a few days in each environment.
TRCH is able to attend school in a 1:3 care ratio, and there is no evidence before the Tribunal to demonstrate that TRCH will not be able to attend holiday care at a 1:3 ratio or STA at a 1:4 ratio, provided they are conducted in an appropriate environment with trained staff. The Tribunal was unable to find that it is reasonable and necessary to provide TRCH with holiday care and STA at a ratio of 1:1. It may be that care in these ratios does not suit TRCH, but this is yet to be established.
The Tribunal finds that it is reasonable and necessary to provide TRCH with 18 hours per week of holiday care for 12 weeks per year at the ratio of 1:3 and 12 days per annum of STA at the ratio of 1:4, and that these supports meet the criteria specified in s 34(1) of the NDIS Act. Both of these activities are to occur in disability specific environments, rather than in the general community.

Further, the Tribunal finds that it is also reasonable and necessary to provide an additional 20 hours of support work to be used flexibly to assist TRCH to settle into holiday care and STA. This will allow TRCH to transition into these environments with additional support.
Reimbursement of invoices / payment of outstanding invoices
Ms TRCH has requested that the Agency pay a number of invoices for support work from Ms El Rifai. Included in the JTB were five invoices for various periods between 16 January 2023 and 16 April 2023 totaling $35,479.74. These invoices were for support work for a variety of shifts up to and including 24 hours in length. The Tribunal considered whether or not it could make any order that the Agency pay these invoices or reimburse Ms TRCH for them if she has paid them already.
A similar request was made in XXWC by his mother and National Disability Insurance Agency [2020] AATA 923 (XXWC), in which DP Forgie was asked by XXWC’s mother to make an order that the Agency reimburse the costs of early intensive behavioural intervention (EIBI) supports that had not been included in the statement of participant supports under review but were found by DP Forgie to be reasonable and necessary. DP Forgie decided she could not make the order noting that the decision affecting XXWC’s rights was the decision by the CEO to approve a statement of participant supports. She explained with respect to the decision to approve a statement of participant supports 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.[100]
(Emphasis added)
[100] XXWC, [121] – [124].
While this Tribunal is not bound by the decision in XXWC, it finds the approach persuasive and correct. The Tribunal is of the view that it does not have the power to order the Agency to pay invoices for support work services used by Ms TRCH which were not initially included in the August 2021 NDIS Plan, even if the Tribunal has now found increased supports to have been reasonable and necessary. That being said, 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 Tribunal noted that some of the outstanding invoices provided relate to periods of care by Ms El Rifai for 24 hours per day in April 2023. 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 since the plan of August 2021.
Travel
Ms TRCH seeks transport funding of $9,282, being for 10,920 kilometres at 85 cents per kilometre. There was no clear calculation provided as to how this figure was arrived at, nor if it relates to provider travel, activity-based transport, or a combination of both. The Tribunal notes that it has already specified that travel is to be included for the total hours chargeable by professionals for exercise physiology, speech therapy and occupational therapy.
It is apparent that TRCH requires community access with the assistance of a support worker at a ratio of 1:1. He also has school transport funded on an in-kind basis by the NSW Department of Education. He is unable to travel independently, and his behavioural difficulties mean that travelling on public transport with a support worker is not likely to be accessible for him. The Tribunal is satisfied that transport funding for community access relates directly to TRCH’s disability. It is also necessary to assist TRCH to pursue his goals of increased independence and socialisation. While it is reasonable for Ms TRCH to transport him to attend community and recreation activities while he is in her care, part of the purpose of TRCH having community access is to relieve Ms TRCH of such responsibilities. It is therefore not reasonable to expect her to transport him to and from community access with a support worker. The Tribunal finds that such transport is not a day-to-day living cost which should be borne by Ms TRCH. It is value for money when charged at the rate set by the current NDIS pricing arrangements as it is cheaper than alternatives like taxis. Ms El Rifai is able to take TRCH out to the local pool and the shops using her own vehicle. TRCH’s support workers should be able to charge for such activity-based transport.[101]
[101] JQJT and National Disability Insurance Agency [2016] AATA 478.
It is also necessary for support workers to attend some of the reasonable and necessary therapy appointments with TRCH for the purpose of being trained in those therapies to deliver them across all aspects of TRCH’s life. These therapies would not be necessary but for TRCH’s disability, nor would the need for support workers to be trained in them. The Tribunal is satisfied that it would be appropriate for a support worker to attend one or another of TRCH’s therapy appointments once a month for this purpose.
Given that it is necessary for support workers to attend therapy appointments with TRCH and also to take him on 1:1 community access, the Tribunal was satisfied that it is reasonable and necessary for TRCH’s NDIS Plan to include limited transport for community access and support worker attendance at therapy appointments, and that the provision of such support meets the requirements set out in s 34(1) of the NDIS Act. It could not be satisfied that it would be appropriate to provide any other form of transport funding separate to that already specified in this decision.
Assistive technology
Ms TRCH has requested multiple items of assistive technology. These are all recommended by Ms Hoskings in her report 15 June 2023.[102] This report contains a sensory assessment of TRCH and makes recommendations about equipment which may be useful. There is no evidence provided about any alternatives which may have been considered, any trials of equipment which may have been done or any research or evidence base which would support that the equipment in Ms Hoskings’ report is the best and most appropriate equipment for TRCH.
[102] Report of Jennifer Hoskings, occupational therapist, 15 June 2023, JTB at A22, 318-319.
The Respondent argued that the provision of the assistive technology would be a duplication of supports because it was a duplication of the goals of the therapy supports. The Tribunal disagrees with this position. The recommended equipment appears to be an extension of the therapy, to enable therapeutic supports to be provided to TRCH in the home as needed, rather than a duplication. This is in keeping with the approach advocated by Dr McDowell that TRCH be supported in a therapeutic community as part of his ordinary life rather than attending multiple therapy appointments. Nonetheless, the Tribunal does agree with the other arguments made by the Respondent that the requested assistive technology has not been established to be best practice or value for money. There is simply insufficient evidence provided about each requested support; alternatives to that support; the evidence base for the support; and any trials to indicate whether this support is of a particular benefit for TRCH, rather than a benefit generally. TRCH is a unique individual with quite particular sensory processing difficulties, and it is entirely possible that he may find some of the recommended equipment unpleasant to use.
The Tribunal is of the view that before the more expensive items such as the Vuly play gym and the Gravitron massage chair could be funded there would need to be evidence about TRCH trialling these technologies and receiving benefit from them rather than a set of generalised recommendations, which is all the evidence the Tribunal has before it. Ms TRCH may like to consider seeking funding for a trial of assistive technology in a future plan with a view to establishing whether specific items are a benefit to TRCH rather than the current ‘scattergun’ approach. The evidence currently before the Tribunal does not establish that these supports will be effective and beneficial for TRCH as set out in s 34(1)(e), and so they cannot currently be funded.
The Tribunal noted that the August 2021 plan and the subsequent plan replenishments have included an amount of $200 per annum for low-cost assistive technology. Having reviewed the list of very inexpensive items recommended by Ms Hoskings and noting that TRCH has a tendency to break items, the Tribunal was satisfied that it is reasonable and necessary to provide $500 per annum for low-cost assistive technology for TRCH. This would enable Ms TRCH to buy some of the more inexpensive items such as the Jelly Fish chair, fidget toys, Thera putty and visual timers. This appears to be appropriate, as these items are inexpensive and trialling and reporting upon their use would cost more than the items themselves. This gives Ms TRCH some flexibility in meeting TRCH’s need for assistive technology without a commitment to expensive items which have not been proven to be effective and beneficial for TRCH.
Reassessment Date
Neither party made submissions on an appropriate reassessment date. The history of the plans thus far has been that they have been of a 12-month notional duration. The Tribunal considers it appropriate that this continues for now. This decision provides significant additional support to TRCH for a finite period. These supports must be monitored, and his progress evaluated, so that future plans have good evidence on which to base his ongoing supports. Ms TRCH should not expect to receive the same level of therapy supports in subsequent plans. They have been provided at such an intensity in this plan so that she, TRCH’s support workers, and his school, can all be trained to provide him with a therapeutic community moving forward, where allied health intervention is minimised in accordance with the model of care proposed by Dr McDowell.
CONCLUSION
The Tribunal is satisfied that the following supports are reasonable and necessary, from the start date of the August 2021 NDIS Plan:
1.    18 hours per annum of exercise physiology (including provider travel);
2.    75 hours per annum of speech pathology (including provider travel);
3.    48 hours per annum of occupational therapy (including provider travel);
4.    Support work:
- two hours daily, seven days per week, of support for personal care and activities of daily living at the ratio of 1:1 (14 hours per week);
- three hours per week at weekday rates of support for social, community and civic participation at the ratio of 1:1;
- one hour per week at weekday rates of therapy support at the ratio of 1:1;
- 20 hours per annum of support work at the ratio of 1:1 to assist in the transition to holiday care and STA;
5.    18 hours per week for 12 weeks per annum of holiday care at the ratio of 1:3;
6.    12 days per annum of STA at the ratio of 1:4;
7.    Transport funding for community access and support worker attendance at therapy appointments once per month;
8.    $500 per annum for low-cost assistive technology.
DECISION
The internal review decision of 25 October 2021 made under subsection 100(6) of the National Disability Insurance Scheme Act 2013 (Cth), which confirmed the reviewable decision of 27 August 2021, is set aside and remitted for reconsideration with directions that:
a.the following reasonable and necessary support will be funded under the National Disability Insurance Scheme from 27 August 2021:
(i)18 hours per annum of exercise physiology (including provider travel);
(ii)75 hours per annum of speech pathology (including provider travel);
(iii)48 hours per annum of occupational therapy (including provider travel);
(iv)Support work:
(a)two hours daily, seven days per week, of support for personal care and activities of daily living at the ratio of 1:1 (14 hours per week);
(b)three hours per week at weekday rates of support for social, community and civic participation at the ratio of 1:1;
(c)one hour per week at weekday rates of therapy support at the ratio of 1:1;
(d)20 hours per annum of support work at the ratio of 1:1 to assist in the transition to holiday care and STA;
(v)18 hours per week for 12 weeks per annum of holiday care at the ratio of 1:3;
(vi)12 days per annum of STA at the ratio of 1:4;
(i)Transport funding at current NDIS Pricing Arrangements for SCCP and support worker attendance at therapy appointments once per month;
(vii)$500 per annum for low-cost assistive technology.
b.The date by which the Respondent will reassess the Applicant’s plan is 12 months from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports (the reassessment date).
c.All other reasonable and necessary supports in the existing statement of participant supports, not funded under paragraph a(i), excluding any one-off assistive technology already funded, shall be replicated for a period of 12 months, from the date on which the support under paragraph a(i) is included in the Applicant’s existing statement of participant supports until the reassessment date.
d.The Respondent is to determine the appropriate mechanism for the reimbursement or payment of support work invoices.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Member T Bubutievski

...............................[SGD].........................................
Associate
Dated: 15 August 2024

Date(s) of hearing: 11, 12 & 14 March 2024

Advocate for the Applicant: By his Mother, Ms TRCH

Solicitors for the Respondent: Ms B Audsley, AGS

Date(s) of hearing:	11, 12 & 14 March 2024
Advocate for the Applicant:	By his Mother, Ms TRCH
Solicitors for the Respondent:	Ms B Audsley, AGS