TRSS and CEO, National Disability Insurance Agency (NDIS)
[2025] ARTA 806
•24 June 2025
TRSS and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 806 (24 June 2025)
Applicant/s: TRSS
Respondent: CEO, National Disability Insurance Agency
Tribunal Number: 2024/1463
Tribunal:General Member N Purcell
Place:Sydney
Date:24 June 2025
Decision:The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the orders that the following supports should be funded in the Applicant’s statement of participant supports:
Core Supports:1.
Assistance with self-care activitiesa.
8 hours per week (weekday rate) x 52 weeksi.
2 hours per week (Saturday rate) x 52 weeksii.
STA Respite:2.
1 week daya.
1 Saturdayb.
1 Sundayc.
Consumables:3.
Low Cost AT – Prosthetics and Orthotics $3500 per yeara.
Low Cost AT – Personal Care and Safety $5000 per yearb.
Low Cost AT – Communication or Cognitive support - $500 per yearc.
Capacity building – daily living skills4.
26 hours Psychology per yeara.
62 hours OT per yearb.
30 hours Speech per yearc.
12 hours Podiatrist per yeard.
26 hours Exercise Physiologist per yeare.
26 hours Therapy Assistant for support with Exercise Physiology per yearf.
52 hours of Therapy Assistant – Level 2 per yearg.
20 hours Training for Carer / Parent per yearh.
20 hours Delivery of health supports by a Clinical Nurse Consultant (weekday rate) per yeari.
28 hours Dietician advice for health and wellbeing per year.j.
Behaviour Support:5.
45 hours Specialist Behaviour Intervention Support per yeara.
20 hours Behaviour Management plan and training per yearb.
Support Coordination6.
24 hours Coordination of Supports Level 2 per year.a.
Choice and Control7.
Plan management fees of $1485.72 per year.a.
The management of funding for reasonable and necessary supports under the Applicant’s plan is to remain the same.8.
The date by which the Respondent will review the Applicant’s plan is 12 months after the day on which the reasonable and necessary supports are included in the Applicant’s statement of participant supports.9.
....................[SGD]....................................................
General Member N Purcell
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – participant supports – reasonable and necessary supports – capacity building supports - assistance animal – provision of assistance dog not effective and beneficial at this stage of child participant’s development.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)
Therapeutic Goods Administration Act 1989 (Cth)
CASES
Beezley v Repatriation Commission [2015] FCAFC 165
Esber v The Commonwealth (1992) 174 CLR 430
Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250
McGarrigle and National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Operational Guidelines – Reasonable and Necessary supports, 22 September 2024.
Operational guideline - Assistance animals including dog guides, 27 March 2025.
Statement of Reasons
INTRODUCTION
The Applicant is almost 9 years old and lives with Autism Spectrum Disorder (ASD) (Level 3). He lives with his mother and younger sibling in a regional town of QLD and attends a local primary school. The key issue before the Tribunal is the Applicant’s request for an assistance dog.
DECISIONS UNDER REVIEW
The Applicant seeks external review of an internal review decision made by the National Disability Insurance Agency (the Respondent) on 14 February 2024 pursuant to section 100(6) of the National Disability Insurance Act 2013 (Cth) (‘the NDIS Act’ or ‘the Act’). This decision confirmed an earlier decision made on 19 December 2023 to approve the Applicant’s statement of participant supports (SOPS) pursuant to section 33(2) of the Act.[1]
[1] Both original decisions are reviewable decisions under section 99 of the Act.
TRSS, by his mother and representative, applied to the Administrative Appeals Tribunal (AAT) under section 103 of the NDIS Act on 13 March 2024. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, TRSS’s application was automatically transferred to the ART.[2]
[2] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).
On 10 July 2024, a new 12-month plan was made pursuant to section 48 of the NDIS Act. The funding under the plan totalled $65,543.47. By virtue of section 103(2)(ii)(e) of the Act, the current application is also taken to be an application for review of the supports approved under this plan.
Broadly speaking, the issues in dispute prior to hearing can be summarised as follows:
(a)58 hours of speech therapy
(b)50 hours for a therapy assistant
(c)42 hours for ‘Capacity Building Supports’
(d)27 hours for support by a specialist continence occupational therapist (OT)
(e)$269.27 for laxatives per year
(f)$1,644.00 for four sets of linen per year
(g)Funding of $35,000 plus maintenance costs for an assistance dog.
Prior to and during the hearing, the Respondent conceded that several additional supports are reasonable and necessary based on the further evidence provided by the Applicant’s Mother and other witnesses. It should be noted that some of the supports listed below were already included in the Applicant’s current SOPS. In essence, this means the parties agreed the following supports are reasonable and necessary and should be included in the Applicant’s SOPS:
Core Supports:
(a)Assistance with self-care activities
(i)8 hours per week (weekday rate) x 52 weeks
(ii)2 hours per week (Saturday rate) x 52 weeks
(b)STA Respite:
(i)1 week day
(ii)1 Saturday
(iii)1 Sunday
(c)Consumables:
(iv)Low Cost AT – Prosthetics and Orthotics $3500 per year
(v)Low Cost AT – Personal Care and Safety $5000 per year
(vi)Low Cost AT – Communication or Cognitive support - $500 per year
Capacity building – daily living skills
(d)26 hours Psychology per year
(e)62 hours OT per year
(f)30 hours Speech per year
(g)12 hours Podiatrist per year
(h)26 hours Exercise Physiologist per year
(i)26 hours Therapy Assistant for support with Exercise Physiology per year
(j)52 hours of Therapy Assistant – Level 2 per year
(k)20 hours Training for Carer / Parent per year
(l)20 hours Delivery of health supports by a Clinical Nurse Consultant (weekday rate) per year
(m)28 hours Dietician advice for health and wellbeing per year.
Behaviour Support:
(n)45 hours Specialist Behaviour Intervention Support per year
(o)20 hours Behaviour Management plan and training per year
Support Coordination
(p)24 hours Coordination of Supports Level 2 per year.
Choice and Control
(q)Plan management fees of $1485.72 per year.
The Mother withdrew her request for laxatives.
The Tribunal is also satisfied on the written and oral evidence presented at hearing that the agreed supports are reasonable and necessary pursuant to the legislative criteria and should be included in the Applicant’s statement of participant supports.
Accordingly, the sole issue before the Tribunal is whether the Applicant satisfies the reasonable and necessary criteria in relation to the request for an assistance dog.
THE HEARING
The Applicant was represented by his Mother who is also his child representative pursuant to sections 74 and 75 of the NDIS Act. The Respondent was represented by Mr Philip Nolan of Counsel.
The hearing was conducted via video and phone over 2 days.
At the commencement of the hearing, the Applicant’s Mother indicated that she was also requesting 15 hours of support worker assistance for social and community participation. This had not been contemplated by the Respondent in its Statement of Facts, Issues and Contentions (SOFIC) dated 3 March 2025. Despite lengthy correspondence from the Mother to the Respondent in the weeks leading up to the hearing, she had not identified support worker assistance as an issue in dispute. The Tribunal heard from the parties on the matter and decided to limit the scope of the hearing to the disputed supports listed in the Respondent’s SOFIC pursuant to section 53 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). This does not prevent the Mother from raising this issue with the Respondent at some point in the future, under a section 48 plan re-assessment.
The Mother also confirmed that she was not asking the Tribunal to consider the Applicant’s recent diagnosis of PTSD pursuant to sections 24 or 25 of the NDIS Act.
The Mother raised a question of procedural fairness having only received a copy of the independent OT report completed by Ms Lee Davids on 30 April 2025, just over a week prior to hearing. The Respondent noted that the Mother continued to send information and evidence well past the direction to file final evidence by 1 April 2025, which they say contributed to delays obtaining a report. Whilst ideally such a report would be finalised two weeks prior to hearing, the Tribunal is not satisfied this caused any material prejudice to the Applicant. The Tribunal observed the Mother sent very lengthy correspondence to the Respondent in the days and weeks leading up to the hearing, suggesting she is capable of reading and considering the issues raised in a 20 page report prior to the hearing. The Tribunal also observes that many of the matters raised in Ms Davids’ report were made in response to claims and evidence provided by the Mother and were therefore known. To ensure the Mother had additional time to consider the matters raised in Ms Davids’ report, the Tribunal allowed the Mother to file closing written submissions one week after the hearing concluded.
In arriving at its decision, the Tribunal has considered the various documents contained in the joint hearing bundle (JHB) which was accepted into evidence. This includes documents filed by the Respondent pursuant to section 37 of the now repealed Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) (‘T-Documents’), the Respondent’s SOFIC and an independent report of OT, Ms Lee Davids, dated 29 April 2025.
The Applicant filed many documents over the course of the proceedings, also contained in the JHB, including documents from Righteous Pups, an Assistance Animal Assessment Template completed by Ms Leah Daley, a cognitive behaviour therapy practitioner, a report by OT Dr Talitha Clements dated 3 July 2024 and a report by Ms AB dated 27 November 2024. After the hearing, the Tribunal also admitted into evidence an OT report prepared by Ms EW on 15 December 2021 (marked E1) which was not opposed by the Respondent. Written closing submissions were also filed by the Applicant on 16 May 2025 in accordance with the Tribunal’s directions.
The Applicant’s mother gave evidence on the Applicant’s behalf. His current occupational therapist (OT), Ms AB was unable to attend to give oral evidence at hearing. However, her supervising OT, Ms SC agreed to give oral evidence because she has worked closely with the Applicant for several years and signed-off on the reports prepared by Ms AB. The Respondent did not oppose this request and was suitably flexible in the conduct of this matter. Ms Davids, an independent OT, also gave oral evidence at the hearing.
ROLE OF THE TRIBUNAL
In reviewing the decision:
(a)the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;[3] and
(b)the scope of the Tribunal’s jurisdiction is determined by reference to the scope of the internal reviewer’s powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.[4]
[3] See Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [37]-[38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). Esber v The Commonwealth (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.
[4] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].
The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Sections 3(1)(c) and (g) relevantly state the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
A participant’s plan must include a statement of participant supports, approved in accordance with section 33 of the NDIS Act, and any rules made under the NDIS Act.
The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing a number of provisions including section 34 regarding reasonable and necessary supports. The Act also introduced a new section 10 regarding a definition of NDIS support (discussed further below in relation to the NDIS Transitional Supports Rules) and amended section 34(1)(f) which now requires the decision maker to be satisfied that “the support is a NDIS support for the participant”. These changes apply to the Applicant’s SOPS and must be considered by the Tribunal.[5]
[5] Subitem 129(2) of Schedule 1 of the Amending Act provides that if a statement of participant supports is approved or varied on or after 3 October 2024, the amendments apply irrespective of whether the Applicant’s plan came into effect before, or on or after commencement.
Subsection 34(1) of the NDIS Act now relevantly states:
(1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(aa)the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is an NDIS support for the participant.
Note: For the purposes of paragraph (aa):
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant’s disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[6] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[7]
[6] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [202]. (“WRMF”)
[7] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).
The term “reasonable and necessary support” is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’) Mortimer J observed the following with respect to the terms (pre-amendment):
Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”. Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO’s assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.[8]
[8] At [91].
The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 also considered the meaning of reasonable and necessary supports:
[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.[9]
[9] At [149]-[151].
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Relevant rules in the Applicant’s case include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘the Supports Rules’).
Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary.
Relevantly in this case, Rule 3.1 regarding value for money (section 34(1)(c)) states:
3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
…
(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).[10]
[10] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).
Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Part 5 contains general criteria regarding supports and supports that will not be funded. Rules 5.1 and 5.2 provide:
5.1 A support will not be provided or funded under the NDIS if:
(a) it is likely to cause harm to the participant or pose a risk to others;
…
The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) (‘the Transitional Supports Rules’) introduce several key changes. Schedule 2 of the Transitional Supports Rules describe supports that are not considered NDIS supports.
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[11] The relevant guidelines include the Operational Guideline - Reasonable and Necessary Supports (22 September 2024)[12] and Operational guideline - Assistance animals including dog guides.
[11] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].
[12] Operational Guideline - Reasonable and Necessary Supports (22 September 2024), p17.
ASSISTANCE ANIMALS
The Respondent has published an ‘Operational guideline - Assistance animals including dog guides’ regarding the circumstances where it would consider funding an assistance animal.[13]
[13]
Relevantly, the guideline states:
An assistance animal is an animal specially trained to help you do things you can’t do because of your disability. These are things the animal wouldn’t naturally do otherwise, like guiding you through crowded places.
To be included in your plan, an assistance animal must, among other things, be an NDIS support that is related to your disability support needs.
An assistance animal is an NDIS support if it is one of the following:
• accredited under a State or Territory law that provides accreditation of animals trained to assist someone with a disability to alleviate the effect of the disability
• accredited by an animal training organisation prescribed by the Disability
Discrimination Act regulations4
• accredited by a registered NDIS provider who is registered to provide assistance
animals under s73E of the NDIS Act
• trained to assist a person with a disability to alleviate the effect of a disability and to meet the hygiene and behaviour standards expected for an animal in a public place.[14]
[14] Operational guideline - Assistance animals including dog guides, p2.
The animal must be able to provide support in 3 active tasks that a participant would not otherwise be able to do because of their disability. The wellbeing of the animal and issues of risk to the participant, their family or the community are also relevant considerations.[15]
[15] Operational guideline - Assistance animals including dog guides, p10.
The Respondent contended in its SOFIC that the Applicant’s behaviours of concern had not been adequately considered or assessed including possible risks to both the Applicant and a dog. The Respondent submitted there are other more appropriate therapeutic interventions, such as OT and psychology which can support the Applicant to regulate his emotions. The Respondent further contended that such interventions are likely to reduce the current level of required support as the Applicant builds new skills and makes progress with his developmental goals.[16]
[16] Respondent’s SOFIC, p8.
Applicant’s evidence
The Applicant’s Mother submitted several reports in support of the request for an assistance dog including:
(a)Quote of Righteous Pups dated 21 September 2023[17]
(b)Assistance Dog Template of Ms Leah Daley dated 25 September 2023[18]
(c)Report of Dr Talitha (Tilly) Clements, OT dated 3 July 2024[19]
(d)Report of OT, Ms AB dated 27 November 2024[20]
(e)Letter of Ms Joanne Baker, Righteous Pups dated 13 December 2024.[21]
[17] See T15 and T16 of JHB.
[18] T18 of JHB.
[19] A26 of JHB.
[20] A39 of JHB.
[21] A41 of JHB.
Ms Leah Daley, is based in Victoria and has a Bachelor of Teaching/Bachelor of Arts and is a Therapy Dog Handler.[22] She completed the Assistance Animal – Assessment Template on 25 September 2023.
[22] T19 of JHB, p268.
Ms Daley relied on several reports provided from the Applicant’s school and treating OT, speech pathologist and psychologist when preparing her report.[23] The Mother also provided significant information. It is unclear from the report whether Ms Daley met the Applicant in-person, online or at all. Ms Daley noted the following:
[The Applicant] experiences difficulties interpreting and organising input from what he sees, tastes, touches, hears and smells. Sensory perceptions can become frightening for [the Applicant] and can lead to elevated levels of anxiety and sensory overload, culminating in a sensory meltdown. These meltdowns cause significant distress not only for [the Applicant], but the entire household. His responses to sensory experiences fluctuate from one day to the next.[24]
[23] T18 of JHB, p234
[24] T18 of JHB, p240.
Ms Daley described the Applicant’s reactions when experiencing sensory overload. These include running away from situations “no matter how dangerous the consequences” and hiding in public places. The Applicant becomes temporarily non-verbal, is hyperactive and defiant, displays repetitive behaviours such as finger picking, rocking back and forward or humming, covers his ears or eyes and insists on certain foods or clothing.[25] Ms Daley noted that his treating OT had reported in March 2023 that the Applicant reacts strongly to loud or unexpected noises, has temper tantrums, gets easily frustrated and has strong emotional outbursts when unable to complete tasks.[26] Paradoxically, Ms Daley concluded “[the Applicant’s Mother] confirms [the Applicant] does not demonstrate any behaviours of concern”.[27]
[25] T18 of JHB, p240.
[26] T18 of JHB, p243.
[27] T18 of JHB, p263.
Dr Talitha Clements is an OT based in Western Australia. After completing her degree in 2014, Dr Clements commenced canine assisted OT work in 2017. Dr Clements began working with Assistance Dog Trainers in WA and states she has had “success obtaining funding for fully trained assistance dogs” in 20 – 50 cases. It is unclear why a more precise figure was not provided.[28] Dr Clements did not provide a CV with her report or clarify the nature of her PhD qualification. She claims to have “hands on experience with training assistance animals” but it is unclear from her report whether there is an accredited qualification for assistance animal training and/or whether she has that qualification.[29] She was not called to give oral evidence by the Mother.
[28] A26 of JHB, p475.
[29] A26 of JHB, p475.
In her report dated 3 July 2024, Dr Clements supported the Applicant’s request for the funding and maintenance costs for an assistance dog. Dr Clements claimed that an assistance dog would be trained to do the following for the Applicant:
(a)Apply deep pressure on command to the Applicant.
(b)Will ‘track’ the Applicant if he runs off and hides.
(c)Will provide ‘emotional support and environmental understanding in community settings’ by creating a physical barrier to maintain the Applicant’s personal space.
(d)Provide night-time support by sleeping in the Applicant’s room and helping him to settle to sleep if he wakes.
(e)Be trained to interrupt self-injurious behaviours such as finger picking by placing a paw on him or nudging him.[30]
[30] A26 of JHB, p476.
Righteous Pups explained in their response to targeted questions (undated) that a dog would be trained to:
(a)Brace so the Applicant can lean on it for balance.
(b)Interrupt repetitive behaviours or a rise in anxiety with a paw touch or gentle nose bump.
(c)Act as a social bridge in the community and help him regulate emotions.
(d)Assist with toileting and other self-care activities.[31]
[31] A6 of JHB, p399-400.
Ms AB, the Applicant’s current treating OT wrote a report on 27 November 2024.[32] She opined:
[The Applicant] experiences severe anxiety and emotional distress to the point of absconding. Over the last year he has absconded and placed himself in unsafe situations. This is directly related to his microdeletion and diagnosis of ASD. [The Applicant] has deficits in executive function skills which impacts his ability to process unsafe situations and danger. He also displays a decreased ability to manage his emotions. As a result of his ASD diagnosis, [the Applicant] has significant challenges managing change and unpredictability. It is likely that support services will result in increased anxiety and unreliable services.
An assistance dog will provide [the Applicant] with the opportunity to explore new environments, access the community and to remain calm and regulated. This may increase his independence and participation in daily activities. It is hoped that over time [the Applicant’s] reliance on support workers will decrease significantly due to the assistance of a therapy dog. An assistance dog is a significantly lower cost when compared to long term support work.[33]
[32] A39 of JHB, p532.
[33] A39 of JHB, p557-558,
Managing Director of Righteous Pups Australia, Ms Joanne Baker wrote in a letter dated 13 December 2024 that:
(a)The dog will always remain under the handling of an adult, particularly in public settings.
(b)The dog is trained to track and locate the Applicant should he abscond.
(c)The dog is trained to mitigate the affects of the Applicant’s disability.
(d)The animal is trained to intercept sensory overload or meltdowns and provide deep pressure to assist regulation.[34]
[34] A41 of JHB, p579.
The Tribunal requested the Applicant file the first report to suggest or recommend an assistance dog. The Applicant’s mother filed a two-page report dated 15 December 2021 by OT Ms EW. This report was written when the Applicant was aged 5 years and 4 months and relevantly states:
Early intervention therapy may reduce symptoms and support development, [the Applicant] has shown positive behaviours when interacting with the assistance dog within his Early Childhood Development Program (ECDP). Benefits included a reduction in maladaptive behaviours and an increase in social engagement. [The Applicant] typically carries a weighted dog to assist with regulation, as he continues to grow, [his Mother] has requested assistance to identify age-appropriate strategies to maintain his arousal level.[35]
[35] E1.
Ms EW referred briefly to a ‘pilot study’ conducted in 2021 involving 14 children aged 3 – 14 years who had an intellectual or physical disability and another study in 2014, the relevance of which is unclear in relation to the Applicant’s circumstances. Ms EW then wrote:
It is recommended that an assistance dog is considered to support [the Applicant] to continue to build on skills demonstrated within the therapy setting. An assistance dog may mitigate maladaptive behaviours and facilitate social interactions, further evidence may be required from his Psychologist to support this application.[36]
[36] E1.
As mentioned above, Ms SC, a senior OT who supervises the Applicant’s treating OT, Ms AB, gave oral evidence at hearing because Ms AB was unavailable. Ms SC graduated from university in 2018 and registered with APHRA in 2019. She has primarily worked with a paediatric focus throughout her career and has known the Applicant for several years.
Ms SC acknowledged to the Tribunal at the outset that she is not an expert on assistance dogs. She explained that the Applicant has difficulties with emotional regulation and executive functioning which can interfere with his access to the community. She said, “from what I know of assistance dogs and what I’ve seen in the past is that it can be a very successful option to go alongside therapy and to work with therapists”.[37]
[37] Ms SC’s oral evidence.
In relation to the concern about carer burnout, Ms SC stated: “From what I know of [the Mother], I would say no, and I understand that an assistant dog needs to be looked after and cared for in the right way. [The Mother] is very hands on and I know there is the risk of carer burnout, but I don’t think that that relates in this particular case to a dog. I think that this will help alleviate versus adding to that”.[38]
[38] Ms SC’s oral evidence.
In relation to the Applicant’s behaviours of concern and any risk of him being aggressive to an assistance dog, Ms SC said:
I would have to say not, because I haven’t seen any history of violence towards animals. And I think that those instances where he has lashed out physically, there is a very clear trigger and thing that has happened before that and it’s not necessarily aimed towards other people. Sometimes people are there at the time, but he’s not violent towards people intentionally.[39]
[39] Ms SC’s oral evidence.
Mother’s oral evidence
The Mother gave evidence of the Applicant’s engagement with assistance, therapy and family dogs:
(a)He has engaged on a weekly basis with an assistance dog at an Early Childhood Development Program (ECDP) under the care of an adult handler.
(b)He has engaged with emotional support dogs in the community, for example, in the local chemist he sat with and stroked a woman’s dog for 25 minutes after feeling overwhelmed in a public setting.
(c)He has been supported during medical procedures, such as blood tests, by a hospital dog.
(d)Some of the Applicant’s therapists use dogs in their sessions.
(e)He interacted with 2 elderly dogs at home that passed away when he was 5. He was regularly involved in feeding and walking them.
(f)He interacts with his grandmother’s dog and engages appropriately with it at all times.[40]
[40] Mother’s oral evidence.
The Mother also confirmed that the Applicant has only absconded on 3 occasions. This suggests the issue or risk of the Applicant running away was somewhat overstated in some of the other documentary evidence. The Tribunal considers Dr Clements’ and Righteous Pups’ suggestion that an assistance dog should track an absconding child, particularly in an urban environment, a somewhat unusual and potentially unsafe strategy. Ms Davids later indicated that such a proposal did not accord with good practice.
The Mother contended in her closing oral submissions that the Applicant will be able to access the community more effectively with the support of an assistance animal.
The Autism Assistance Dog will be life changing for not only [the Applicant], but our entire family. It will allow us to access the community as a family, which has to date been a significant barrier due to [the Applicant’s] multiple disabilities and impairments. It would give us freedom to attend places in the community that the general public or other people do easily on a daily basis with no worries at all. We could attend places like the park, the playground, the beach. We could go to a cafe, maybe try a restaurant. The Autism assistance dog will enable us to perhaps even have our first family holiday or even experience a short weekend away. We don't go on holidays. The functional impact of [the Applicant’s] disabilities are significant and every member of our family is isolated and impacted and excluded from participating in society.[41]
[41] Mother’s oral submissions.
In her closing written submissions, the Mother also stated:
The Autism Assistance Dog is considered both a reasonable and necessary support that will enhance [the Applicant’s] overall wellbeing and assist him to achieve his goals. [The Applicant] has multiple complex disabilities which significantly impact his functional capacity on a daily basis. The Autism Assistance dog will allow [the Applicant] to develop a greater sense of independence, improve his self-esteem, facilitate increased communication and social development skills, which are within his NDIS goals. Further, the assistance dog will allow him increase safety when accessing the community and natural environments.
[The Applicant] engages with therapeutic interventions more successfully when assistance dogs and therapy dogs are present within sessions. The Autism Assistance Dog trained specifically by Righteous Pups Australia, who are accredited Members of Assistance Dogs International; will be satisfactorily and expertly trained to assist [the Applicant] in alleviating the effects of his multiple complex disabilities and impairments.[42]
[42] Applicant’s closing written submissions dated 16 May 2025, p1.
Ms Lee Davids - Independent OT’s evidence
Ms Lee Davids was engaged by the Respondent to provide an independent report based on the papers. The Applicant’s Mother was invited, on the Applicant’s behalf, to participate in the assessment with Ms Davids but declined. Unfortunately, the Applicant’s Mother was not informed that an assessment would be conducted ‘on the papers’ in lieu of an in-person assessment with the Applicant and herself. She was unaware that a report was being prepared until it was filed by the Respondent prior to hearing. Applicants and their representatives are usually advised that a report will be prepared on the papers in circumstances where they decline to participate in a face-to-face assessment (in person or online). The Tribunal observes this to be good standard practice. While it would have been clearly preferable for the Mother to understand that a report would be prepared, it does not detract from the right of the Respondent to engage an independent expert for the purposes of obtaining an expert opinion.
Ms Lee Davids graduated with a degree in OT in 1991 and completed a Master’s degree in Occupational Health and Safety in 2005. She is registered with APHRA. She has used dogs in her own OT practice and has trained several hospital and nursing home visiting dogs. Ms Davids’ CV, filed with her report, declared that she had previously worked for the Respondent.
At hearing, Ms Davids told the Tribunal she worked for the Respondent most recently in 2022, explaining that she developed several operational guidelines for the Respondent as part of her prior work, including the current guideline on Assistance Animals. She made two minor corrections to her report dated 29 April 2025.[43] Ms Davids currently works as an independent OT consultant.
[43] The word ‘not’ should be added: ‘The veracity of these improvements in the study sample is not in question’, R5 of JHB, p700. And the words ‘care plan’ should read ‘participant’s plan’ at p709.
As the Mother was not legally represented, the Tribunal invited the Respondent to address any concern about a perceived conflict of interest between Ms Davids’ previous work for the Respondent and her report prepared for these proceedings. Counsel for the Respondent confirmed that Ms Davids has no current affiliation with the Respondent. Counsel further submitted that Ms Davids was engaged to provide an opinion based on her experience dealing with assistance / therapy animals and developing and applying the guidelines.
In her closing written submission, the Mother asserted the following:
I would argue that the Respondent calling upon Ms Davids as an expert witness in relation to this matter is not only absurd, but a serious conflict of interest…. More specifically, Ms Davids wrote the assistance animal template (AAT); worked on the panel of assistance animal applications for NDIS. Additionally, Ms Davids described writing the ‘would we fund it template’; and also referred to her experience working with Dr Tiffani Howell from LaTrobe University in regard to the “key terms for animals in assistance roles” report.[44]
[44] Applicant’s closing written submissions dated 16 May 2025, p4.
Further, the Mother submitted that that Ms Davids is not a qualified autism assistance dog trainer and that her experience breeding and judging dogs is not relevant to these proceedings.[45] The Tribunal notes the qualifications of Ms Daley and Dr Clements in relation to assistance dogs remain unclear.
[45] Applicant’s closing written submissions dated 16 May 2025, p3.
The Tribunal has considered both parties submissions. The Tribunal finds that Ms Davids appropriately declared that she had previously worked for the Respondent and now works as an independent consultant. It is not unusual for experienced senior OTs to have worked across a range of settings and organisations.
Further, Ms Davids’ previous work for the Respondent does not necessarily mean her opinions are not impartial or independent. For example, several of Ms Davids’ recommendations, particularly in relation to an incontinence OT and a key worker model (Therapy Assistant Level 2) were not in accordance with the Respondent’s original position. Her report benefited the Applicant in this respect and her recommendations assisted the parties to reach an agreement on several supports in dispute. While Ms David’s evidence in relation to those matters will not be discussed further in this decision, they assisted the Tribunal to form the view that the agreed supports are reasonable and necessary. In the Tribunal’s view, this demonstrates Ms Davids’ independence; she was not an advocate for either party.
The Tribunal finds that Ms Davids’ experience developing and applying the guidelines across hundreds of applications for assistance animals is relevant. It demonstrates she has relevant expertise and understands good practice in the field, even though she doesn’t personally train assistance dogs herself. I agree with the Applicant’s submission that her background in breeding and judging dogs is irrelevant, however Ms Davids’ experience training visiting dogs is relevant. The Tribunal places considerable weight on her opinions, particularly regarding the timing of the provision of an assistance animal. The Tribunal is unable to place significant weight on the evidence of Ms Daley, Dr Clements and Ms Baker noting the lack of clear information about their qualifications, training and experience with assistance animals. They did not give oral evidence which might have allowed such matters to be clarified.
In relation to the Applicant’s request for an assistance dog, Ms Davids explained as follows:
An assistance animal (AA) is simply another form of assistive technology. However, the prescription of an AA is far more complex than one for inanimate items because not only is it a high-cost, long-term and potentially high-risk item, it is a living creature. Assistance animals are considered high risk items because most are dogs. Dogs are predator animals which, unlike prey animals which run from threats, can use their teeth to attack their prey or defend themselves when perceiving a threat or experiencing injury. Therefore, this process must involve a thorough evaluation of the need, expected outcomes and above all, risk.[46]
[46] R5 of JHB, p697.
Ms Davids explained in her report that it is essential to observe a client, preferably over multiple sessions, with one or more assistance animals performing some of the proposed tasks to assess how the client reacts to the animal. She said it is insufficient “to generalise a client’s affection for animals as a predictor that an assistance animal will suit them”.[47] Ms Davids also noted that because a parent will always be the primary handler in cases involving children, there is a potential risk that if a dog perceives behaviours of concern directed at the primary handler, such as hitting or kicking, “they could react defensively by biting the person they perceive as the threat, in this case the child”.[48]
[47] R5 of JHB, p698.
[48] R5 of JHB, p698-699.
Ms Davids’ made the following observation:
Further, as with any high-cost, long-term, high-risk item of assistive technology, assistance animals should only be considered as the last and only remaining support after capacity building has been provided and no further gains are expected. This is because if further capacity building is provided, and the client makes gains such that the assistance animal is no longer needed, there remains a live animal, unnecessary to the situation, which continues to need care and which could be more appropriately placed with another person with a disability who actually needs it.[49]
[49] R5 of JHB, p699.
She also noted that the Assistance Animal application form, consisting of 46 pages, completed by Ms Daley and signed off by Righteous Pups and the Applicant’s Mother:[50]
(a)did not acknowledge any behaviours of concern.[51]
(b)indicated the Applicant could use the animal to lean on for toileting, which shows no understanding that an animal should not be used as a mobility device.[52]
(c)indicated the animal could reduce the Applicant’s absconding but does not describe how.[53]
(d)did not appear to observe the Applicant interacting with any dogs, trained or otherwise.[54]
[50] See T18 of JHB, p227. It is unclear what formal qualifications Ms LD has beyond a Bachelor of Teaching/Arts though there is reference to Cognitive Behaviour Therapy Practitioner.
[51] R5 of JHB, p700.
[52] R5 of JHB, p700
[53] R5 of JHB, p701.
[54] R5 of JHB, p701.
Ms Davids’ told the Tribunal in her oral evidence that she had not previously encountered the idea that an assistance dog could be used to track an absconding child, noting that she has seen “hundreds and hundreds of applications for assistance animals over the years”. She explained that while dogs can be trained to track, all attempts should be made to minimize the behaviour rather than train a dog to respond to it.[55]
[55] Ms Davids’ oral evidence.
It was puzzling to the Tribunal that Ms Daley did not undertake an actual assessment of the Applicant with one or more potential assistance dogs and/or a trained assistance dog prior to completing the application form. It was also unclear why Righteous Pups would effectively endorse such an application in these circumstances.
Ms Davids did not support funding for an assistance dog at this time for the following key reasons:
(a)It could present a risk to both the Applicant and his sister due to their externalised behaviours of concern and the potential for the dog to react defensively or to protect its primary handler.
(b)Assistance dogs should not be introduced while capacity building therapies are still expected to deliver outcomes that may render the intervention unnecessary.
(c)The Applicant’s current capacity building program has not improved his behaviours of concern and must be redesigned to include proper behaviour support and integration therapies.
(d)There is no evidence that assistance animals can deliver the outcomes that are expected in this case.
(e)There has been no trial to observe the Applicant engaging with or performing tasks in the presence of a trained assistance animal.
(f)The tasks or services proposed to be delivered by the dog would not address the underlying reasons for the Applicant’s behaviours of concern, or reduce them.[56]
[56] R3 of JHB, p709.
Ms Davids also expressed concern that the Applicant may pose a risk to the animal and/or that his mother may not be able to cope with the additional responsibility. Having heard the Mother and Ms SC’s oral evidence, the Tribunal is satisfied this would not be a major risk.
CONSIDERATION
The Tribunal wishes to acknowledge at the outset that it accepts the Mother’s evidence that the Applicant has a long history of engaging with dogs and animals more generally. He clearly enjoys spending time with dogs and derives benefit from their presence and company, whether it be a pet, therapy dog or assistance dog. There was no evidence he has ever behaved in an aggressive or inappropriate manner with an animal.
The Tribunal accepts that an Assistance Animal is a NDIS Support pursuant to Schedule 1, Item 2 of the Transitional Supports Rules. Section 34(1)(f) is met. Accordingly, the Tribunal will proceed to consider whether this support is reasonable and necessary pursuant to the other criteria in section 34(1).
Section 34(1)(d) and Rule 3.2
Section 34(1)(d) concerns whether the supports will be or are likely to be effective and beneficial having regard to current good practice. Rules 3.2 and 3.3 assist this analysis.
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
(a) published and refereed literature and any consensus of expert opinion;
(b) the lived experience of the participant or their carers; or
(c) anything the Agency has learnt through delivery of the NDIS.
3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
Counsel for the Respondent submitted that it is important to distinguish the purpose of capacity building supports from that of assistive technology. For example, capacity building supports are aimed at reducing or minimising the functional impact of the Applicant’s impairments in his day-to-day life. Assistive technology, or in this case, a dog, helps an individual to do things they could not otherwise do. In this sense, the Respondent contends that assistive technology, particularly of the type requested, should only be used when an individual has reached their full functional capacity and have been shown incapable of doing particular tasks or activities. Ms Davids provided a useful analogy, explaining that one would not assess someone for a complex wheelchair until such time as the person had completed therapies and other capacity building interventions to reach their full mobilising potential. The Respondent submitted that capacity building supports need time to do their ‘work’ first.
The Tribunal observes that the Applicant has a range of capacity building supports in his SOPS including psychology and OT which are intended, over time, to build his skills to regulate his emotions and thus minimise instances of emotional dysregulation. Over the next 12 months, the Applicant will also receive speech therapy, exercise physiology and specialised incontinence OT, amongst other supports, which are focused on building his capacity to communicate, move his body and complete more self-care tasks. The Tribunal considers that as he builds his skills and confidence in these domains, for example with his toileting and communication, there are likely to be beneficial flow on effects more broadly including with his emotional regulation. Pleasingly, there was evidence the Applicant has made impressive progress with his speech in recent times:
[The Applicant] has benefitted significantly from speech therapy and demonstrated clear progress in his communication skills over the last 18 months. Comparison between his assessments in 2023 and 2024 show that his abilities in most language areas have improved, including concept knowledge, recalling sentences, sentence comprehension, grammar, and sentence production. [The Applicant’s] mother also reports that his reading has also progressed. His receptive and expressive language and reading skills now fall mostly within the average range. His increased scores in these areas indicate that he is closing the gap between himself and his peers.[57]
[57] JHB, p426.
The Applicant’s Mother submitted:
[The Applicant] has ASD Level 3 and multiple other complex disabilities which significantly impact his daily functioning. He is at significant risk of regression of skills. Funding the assistance dog now, whilst he is young and receiving intensive early intervention supports will enable him to build capacity, gain skills, and improve his quality of life. I know this support will be effective and beneficial and give [the Applicant] the best opportunity to increase his capacity to gain skills and achieve his goals and aspirations.
However, Ms Davids explained that an assistance animal isn’t something that one would use for a child who is continuing to engage in a lot of therapies because it is hoped they will make gains and achieve outcomes from those supports.[58]
[58] Ms Davids’ oral evidence.
The Applicant’s Mother also contended:
When compared to support worker cost comparisons provided in the evidence, the autism assistance dog is a once off purchase, reducing long term cost of support workers and therefore considered value for money.[59]
[59] Applicant’s closing written submissions, dated 16 May 2025, p2.
The Tribunal observes that as an 8-year-old child, the Applicant is continuing to grow and develop. It is therefore difficult to predict what his skills and capacity will look like in another year or two. Through a combination of developmental maturity and the effects of capacity building supports, the Applicant will hopefully make good progress in developing his functional capacity. In the Tribunal’s view, it is premature for the Mother to be concluding that her son will require a support worker, and therefore an assistance dog is a ‘cheaper’ option.
Ms Davids gave evidence about the importance of a good capacity building program at this stage of the Applicant’s development.
It is very important to understand that a good transdisciplinary capacity building program is not simply attendance at regular therapy sessions. It is a program that fully integrates the therapeutic strategies of all disciplines involved into the child’s everyday activities in all their natural environments so the effect of therapy continues across their entire life. A well-designed capacity building plan built upon these principles will facilitate the reduction of TRSS’s behaviours of concern and improve his ability to participate in self-care tasks more than would the provision of an assistance animal.[60]
[60] R5 of JHB, p705-706.
The Tribunal accepts Ms Davids’ evidence that the provision of an assistance dog is not an appropriate form of support at this time. It may be the case that over the coming years, the Applicant’s capacity building supports contribute to significantly reducing his current challenges, particularly with respect to his emotional regulation. The associated improvements in his functioning and capacity would likely render an assistance animal an unnecessary form of support. The Tribunal finds that in these circumstances, funding the provision of an assistance dog is not effective and beneficial having regard to good practice.
The Tribunal finds the provision of an assistance animal does not meet section 34(1)(d). It is unnecessarily to consider the remaining provisions under section 34(1).
Date(s) of hearing: 7 and 8 May 2025 – by video Applicant: Applicant’s mother Counsel for the Respondent: Mr Philip Nolan Solicitors for the Respondent: Ms Thompson, Moray & Agnew
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