TRVH and National Disability Insurance Agency

TRVH and National Disability Insurance Agency [2023] AATA 1613 (3 May 2023)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number(s): 2022/0965
Re:TRVH
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes
Date:3 May 2023
Place:Sydney

The Tribunal affirms the decision under review.
................................[SGD]........................................
Deputy President Antoinette Younes
CATCHWORDS
NATIONAL DISABILITY INSURANCE AGENCY – review of supports in applicant’s plan – whether the support is reasonable and necessary – where the participant has Post Traumatic Stress Disorder – where the participant requests therapeutic remedial massage sessions – whether the support is value for money – whether the support is most appropriately funded by the NDIS – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 42D, 37, 38AA
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 9, 24, 25, 32, 33, 34, 100, 103
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) rr 3, 5, Schedule 1
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Mulligan v National Disability Insurance Agency (2015) 233 FCR 201
National Disability Insurance Agency v WRMF (2020) 276 FCR 415
NDIA v WRMF [2020] FCAFC 79

SECONDARY MATERIALS
‘Does the support meet the reasonable and necessary criteria?’, National Disability Insurance Scheme (Web Page, 20 April 2021) < G. J. (2013). Massage therapy for PTSD, trauma, and anxiety. RUDN Journal of Psychology and Pedagogics, (3), 60-66.
‘Clinical Practice Guideline for the Management of Borderline Personality Disorder’, 2012, < FOR DECISION
Deputy President Antoinette Younes
3 May 2023
INTRODUCTION

The applicant is a 48-year-old woman who is a participant of the National Disability Insurance Scheme (‘NDIS’). This application involves review of a decision made on 19 January 2022 under section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’), which affirmed a decision made to approve a statement of participant supports (‘SOPS’) forming part of the applicant’s NDIS plan.
The applicant was granted access to the NDIS on the basis of the primary disability of chronic post-traumatic stress disorder (PTSD).
The applicant was represented by Ms Leigh Johnson, Solicitor. The respondent was represented by Mr Mark Cleary, Counsel.
BACKGROUND
On 4 November 2021, a delegate made a decision under section 33(2) of the NDIS Act to approve a SOPS in the applicant’s plan for the period from 4 November 2021 to 4 November 2023. That two-year plan approved funding in the total of $105,019.45, comprising of $85,233.20 in core supports, and $19,786.25 in capacity building supports.
On 26 November 2021, the applicant requested a review of her supports approved in the plan dated 4 November 2021. Specifically, she requested approval of two-to-three therapeutic remedial massage sessions per week as a support. On 19 January 2022, pursuant to section 100(6)(a) of the NDIS Act, a delegate of the Chief Executive Officer (‘CEO’) of the National Disability Insurance Agency (‘NDIA’) completed an internal review which affirmed the original decision. The delegate found that the requested support was not reasonable and necessary under section 34(1) and found that it was not most appropriately funded by the NDIS, as required by section 34(1)(f) of the NDIS Act.
On 13 February 2022 and in accordance with section 103 of the NDIS Act, the applicant lodged an application for review with the Tribunal in relation to the decision dated 19 January 2022.
ISSUES
The Tribunal is required to undertake a merits review and will stand in the shoes of the original decision maker, the delegate who made a decision to approve a SOPS.
The issues in the review are whether the requested support of two-to-three therapeutic remedial massage sessions per week, is reasonable and necessary under section 34(1) of the NDIS Act, and is most appropriately funded by the NDIS, as required by section 34(1)(f) of the NDIS Act.
LEGISLATIVE FRAMEWORK
The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in section 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.
In order to strike a balance between the participant’s right to articulate their goals and aspirations and the role of the Agency, the CEO is required to work with the participant to prepare the SOPS, and then to approve those supports which will be funded. Section 3 of the Act sets out the objects and principles of the NDIS Act, making particular reference to the purpose of providing reasonable and necessary supports. Subsection 3(1) provides, in part:
The objects of this Act are to:
…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability;
The objects of the NDIS Act are to be achieved by “adopting an insurance-based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability”.[1] In giving effect to the objects of the Act, regard is to be had to, among other things, “the need to ensure the financial sustainability” of the Scheme and “the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme”.[2]
[1] Subsection 3(2)(b) of the NDIS Act.
[2] Subsection 3(3) of the NDIS Act.
Section 4 of the NDIS Act refers to the General principles guiding actions under the NDIS Act and provides a set of principles. Relevantly, the following principles highlight matters concerning reasonable and necessary supports:
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional, and intellectual development.
...
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
...
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
...
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12) The role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected.
...
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.
Subsection 4(17) refers to the need to ensure the financial sustainability of the Scheme. It provides that:
It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
Section 32 of the NDIS Act provides that the CEO of the Agency is required to facilitate the preparation of a participant's plan. Section 33 of the NDIS Act provides that the plan must include the participant’s statement of goals and aspirations and a statement of participant supports prepared with the participant and approved by the CEO. It is noted that the statement of goals and aspirations is a statement by the participant and does not require the approval of the CEO. However, the statement of participant supports must specify the reasonable and necessary supports (if any) that will be funded under the Scheme.[3]
[3] Section 33(2)(b) of the NDIS Act.
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 (‘the Rules’).
Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under section 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 the supports are ‘reasonable and necessary’.
Section 34(1) of the NDIS Act requires six mandatory criteria to be met before a support is considered to be a ‘reasonable and necessary support’. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied or matters to which the decision maker is to have regard, in deciding whether they are satisfied that the criteria under section 34(1) have been met in respect of a requested support.
Section 34(1) of the NDIS Act provides as follows:
34 Reasonable and necessary supports
(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 community to provide;
(f)    the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
The phrase “reasonable and necessary supports” is not defined in the NDIS Act, but its’ meaning can be determined with the assistance of the provisions referred to above. As Mortimer J said in McGarrigle v National Disability Insurance Agency:
‘Section 13 expressly indicates that a “support” might be a service, or it might be an activity. In my opinion, although s 14 (which deals with funding by the Agency of others to assist the participant rather than the Agency assisting the participant directly) is expressed purposively, its subject matter is also “support” - whether by way of services of activities or any other matter that assists a person with disability in a way that is consistent with the general principles set out in s 4. The word “support” must be given a broad construction in this context, and there is no need for the purposes of this proceeding to seek to give it any comprehensive meaning. Rather, the point to be made is that it is a practical description of the means by which a person with disability is assisted. It is not intended, in my opinion, to encompass funding, especially because what s 14 contemplates is that the Agency will “fund” a support. The Agency cannot “fund” funding.
…
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”’.[4]
[4] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [88] and [91].
Sections 35 and 209 of the NDIS Act provide for the making of Rules in connection with the funding or provision of reasonable and necessary, as well as general supports. As a Legislative Instrument, the Rules bind the Tribunal in making decisions under the Act.
Part 5 of the Rules sets out general criteria for supports and those that will not be funded or provided.
The Rules include:
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.
Part 3 of the Rules provides for matters to be considered in deciding whether a requested support represents value for money. The relevant provisions of the Rules will be set out later in these reasons.
The Schedule to the Rules sets out the considerations relevant to determining whether supports are most appropriately funded through the Scheme:
7.1 The Act limits the supports that can be provided or funded under the NDIS to supports that are not more appropriately funded or provided through other service systems, for example as part of a universal services obligation or in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
7.2 The considerations set out in this Schedule must be taken into account by the CEO in deciding whether a support is more appropriately provided or funded by the NDIS or another service system.
7.3 For the avoidance of doubt, while this Schedule sets out considerations relevant to whether a support should be considered to be more appropriately provided or funded through another service system, it does not purport to impose any obligations on another service system to fund or provide particular supports.
The Tribunal notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency[5] as follows:
‘[The Supports for Participants Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement … some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS’.[6]
[5] McGarrigle v National Disability Insurance Agency [2017] FCA 308.
[6] McGarrigle v National Disability Insurance Agency [2017] FCA 308 at [43].
The Tribunal has considered the Operational Guidelines published by the respondent on its website; specifically, those relating to the assessment of whether a requested support meets the ‘reasonable and necessary’ criteria under section 34(1) of the NDIS Act.
The definition of participant’s impairment and the concept of permanency
Section 9 defines a participant’s impairment to mean “an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent”, indicating that the NDIS Act is concerned with the impairments of participants that meet the requirements of sections 24 and 25 of the Act.
With exceptions, the duration of a person’s participation in the Scheme is life-long and, in most cases an impairment must be permanent, or likely to be permanent, in order to meet either the disability requirements or the early intervention requirements. A person will only meet the disability requirements if the person is likely to require support under the Scheme for the person’s lifetime (section 24(1)(e)). Therefore, it is not within the Scheme that a participant who has an impairment which is not permanent, or is likely not to be permanent, will be entitled to supports for that impairment. A fair reading of the Act suggests that an unrelated impairment which is not permanent, is not supported.
Relevant case law

In National Disability Insurance Agency v WRMF,[7] the Court considered the meaning of reasonable and necessary support in the context of the Act, stating that:
‘The supports to be provided to a person who qualifies as a participant are intended to accommodate an individual’s particular impairments and to assist that particular individual to be a participating member of the Australian community …
… there 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.’
[7] (2020) 276 FCR 415 at [141] and [151].
In Mulligan v National Disability Insurance Agency,[8] Mortimer J said:
‘The access criteria in Ch 3 of the Act are an essential component of the NDIS as conceived. They are designed to impose a number of thresholds on access to the NDIS. By s 13, broad and general provision may be made for persons with disabilities – but access to the NDIS, and the supports, funding and autonomy it is intended to deliver, is reserved for a subcategory of persons with disabilities.
…
Although an impairment may, in general terms … be responsible for or related to a disability, the threshold in s 24 revolves around the severity and permanency of the effects of the impairments experienced by a person, so as to justify the provision of the “reasonable and necessary supports” to which participants may be entitled, after assessment in accordance with Pt 2 of Ch 3 of the Act.’
[8] (2015) 233 FCR 201 at [50] and [52].
EVIDENCE AND SUBMISSIONS
Pursuant to its obligations under sections 37 and 38AA of the AAT Act, the respondent lodged a set of documents (‘the T-Documents’). The T-Documents contain, among other things, a copy of the delegate’s decision record, the applicant’s request, and reports from health practitioners. The respondent lodged submissions and Statements of Facts, Issues, and Contentions (‘SOFIC’).
Post hearing submissions were received by the Tribunal on 2 April 2023.
Relevant material
The delegate’s decision record
In a letter dated 19 January 2022, the applicant was advised that a delegate of the CEO had reviewed her request under section 100 of the NDIS Act and decided that the original decision was correct. In essence, the delegate found that the requested support did not meet the reasonable and necessary criteria under section 34 of the NDIS Act.
The delegate discussed the requirements under subsection 34(1)(f) of the NDIS Act and concluded that the services requested cannot be funded as the delegate was not satisfied that that the support is the responsibility of the NDIS to fund.
The applicant’s request for review
In her application for review to the Tribunal and in summary, the applicant indicated that the decision of the delegate is wrong, and that her psychologist has expressed the opinion that the requested support meets the legislative requirements.
Health practitioners’ and other clinical reports
MRI results – 30 August 2018
The results refer to, among other things, hip pain.
Report of Dr K E Khor, Director of Pain Medicine, Prince of Wales Hospital, dated 7 February 2017
In this report, Dr Khor referred to the applicant’s “main pain issue” relating to her chronic abdominal pain, and other pains. Dr Khor referred to the pain as being severe and aggravating the applicant’s mood, and the requirement for regular analgesics.
Report of Mr Joshua Yu, Occupational Therapist, dated 21 June 2021
Mr Yu outlined his clinical assessments and made a number of recommendations including physiotherapy for “remedial massage with a Physiotherapist to assist with pain management which is affecting her mental health while reducing stress and anxiety. Funding will be required for ongoing sessions due to a limit of 5 sessions under chronic pain management scheme”.[9]
Reports of Ms Elizabeth Munro, Clinical Psychologist, dated 3 February 2022, 7 June 2022, and 30 October 2022
[9] Report of Mr Yu, Occupational Therapist, dated 21 June 2021, p 12.
Ms Munro has been treating the applicant since July 2010 for complex PTSD, depression, anxiety, stress, and chronic pain. Ms Munro recommended continued support for psychological therapy to address the applicant’s psychological distress and to encourage engagement in social and vocational activities.
In the report dated 3 February 2022, Ms Munro recommended, among other things, funding for therapeutic remedial massage as a therapy to reduce psychological and physical stress to improve the applicant’s sleep, mood, pain perception, and anxiety.[10]
[10] Report of Ms Munro, dated 3 February 2022.
In her report of 7 June 2022, Ms Munro concluded that it was vital for the applicant to have access to therapeutic remedial massage to “reduce her psychological and physical stress, therefore improving her sleep, mood, pain perception and anxiety[11]”.
[11] Report of Ms Munro, dated 7 June 2022, “POINT 12”.
Report of Dr Kim Dilati, Consultant Clinical and Forensic Psychologist, dated 28 September 2022
Dr Dilati was requested by the respondent to provide an expert opinion report concerning the applicant.
Dr Dilati outlined her expertise and conclusions about therapeutic massage therapy, which will be discussed in the relevant parts of the Decision.
Report of Ms Amanda Ford-Asbeck, Pathways Coordinator Specialised Services, Wayside Chapel, dated 12 May 2022
Ms Ford-Asbeck noted the positive impact that massage therapy has had on the applicant’s mental health and its decline as a result of the therapy cessation. Ms Ford-Asbeck supported the OT’s recommendation of massage therapy.
Dr Peter Halloway, General Practitioner
On 26 November 2021, the applicant’s treating GP, Dr Peter Holloway recommended, in addition to analgesics, “indefinite remedial massage…2-3 times/week…to reduce pain, improve mobility, and relieve depression”[12].
[12] T-Documents, T8, 50.
Hearing and witnesses
The applicant attended the hearing and gave evidence. The following persons also gave evidence at the hearing:
·Dr Kim Dilati, Psychologist;
·Ms Amanda Ford-Asbeck, the Wayside Chapel; and
·Ms Elizabeth Munro, Psychologist.
The Tribunal will refer to the evidence of the witnesses in relevant sections of the Decision.
FINDINGS & REASONS
The NDIS Act was intended to create a broad Scheme for the benefit of many Australians living with disability and that the supports that would be provided under the Scheme would not be unlimited. In this regard, the Act makes it clear that the Scheme was intended to be operated in a financially sustainable way. In particular:
·In giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the Scheme (section 3(3)(b)).
·The need to ensure the financial sustainability of the Scheme is a mandatory relevant consideration in the performance of functions and the exercise of powers under the Act (section 4(17)).
·The CEO can only approve supports which are "reasonable and necessary", which clearly involves the CEO assessing the cost of the support as compared to the benefit to be derived from the support (section 33(2), see also section 34(c)).
·The Agency must manage, advise, and report on, the financial sustainability of the Scheme (section 118(1)(b)).
·The reporting obligations of the Board and the Scheme Actuary include reporting on the financial sustainability of the Scheme (sections 172, 177, 180B).
·The Minister must have regard to the need to ensure the financial sustainability of the Scheme when making the Scheme Rules under section 209 (section 209(3)).
The intention for the Scheme only to assist persons with impairments of a particular kind is made clear in the extrinsic material. In the Second Reading Speech for the relevant Bill, former Prime Minister Gillard referred to someone in Australia being diagnosed with a "serious disability" every 30 minutes, and to the more than 400,000 people living with "significant and permanent disabilities".[13] The former Prime Minister also referred to the legislation being designed to ensure that "the scheme remains sustainable over the long term".[14]
[13] Commonwealth, Parliamentary Debates, House of Representatives, 13877 29 November 2012 (Julia Gillard, Prime Minister).
[14] Commonwealth, Parliamentary Debates, House of Representatives, 13878 (Julia Gillard, Prime Minister).
The construction of "supports" as meaning those things which might aid or assist in addressing an impairment that satisfies either section 24 or section 25 best achieves the purpose of the Act. It ensures that funding under the Scheme is only used to address the kinds of serious disabilities that the Scheme was intended to address. Further, it provides a limitation on the supports to be provided under the Scheme which enables the Act to achieve its purpose of providing support in a financially sustainable way.
The applicant has an accepted condition of chronic PTSD that has qualified her as a participant in the Scheme. As a participant, she is entitled to certain supports that benefit her participation in the community and life generally. The applicant has made claims of other conditions such as borderline personality disorder, anxiety, depression, dissociative disorder, fibromyalgia, bursitis spinal arthritis, bulging spinal discs, chronic fatigue syndrome, bone degeneration, ovarian cysts, migraines, and a gluteal tear[15] but she is not a participant in the Scheme by reason of any of those ailments. The NDIA has not recognised those conditions as primary disabilities for which access to the Scheme has been granted. The applicant takes medications to manage her conditions. She receives clinical care from medical and allied health professionals.[16]
[15] T-Documents, T5, 21-22.
[16] T5, 23; T12, 83.
As mentioned above, the applicant has relied on the report health practitioners including the report of Dr Khor, who confirmed the applicant’s pain and its impact on aggravating her mood state. She also relied on the report of Mr Yu, who made a number of recommendations including physiotherapy for “remedial massage with a Physiotherapist to assist with pain management which is affecting her mental health while reducing stress and anxiety. Funding will be required for ongoing sessions due to a limit of 5 sessions under chronic pain management scheme[17]”.
[17] Mr Yu, Occupational Therapist, dated 21 June 2021, p 12.
On 3 February 2022, Ms Munro, who has treated the applicant since 2010, recommended remedial massage “as a therapy to reduce her psychological and physical stress, therefore improving her sleep, mood, pain perception and anxiety”[18]. Ms Munro observed that the applicant’s pain “significantly exacerbates her insomnia, depression, and stress, and can trigger a relapse into florid PTSD. Conversely, if [TRVH] is depressed, stressed and anxious, this makes it more likely that she will notice her pain and other physical disabilities”[19]. Ms Munro stated that remedial massage will result in “improvement in functional capacity (cognitive and psychosocial), will therefore enable [TRVH] to attempt her goals, such as attendance at short courses to learn psycho-social, vocational, and living skills. This will include addressing her psychological distress and encouragement to engage in social and vocational activities”.[20]
[18] Report of Ms Munro, 3 February 2023, p1.
[19] Report of Ms Munro, 3/2/22, p1.
[20] Report of Ms Munro, 3/2/22, p2.
In her report dated 7 February 2021, Ms Munro reiterated her opinion that it is vital that the applicant has access to funding for therapeutic remedial massage as a therapy to reduce her psychological and physical stress, improving her sleep, mood, pain perception and anxiety. Ms Munro noted that remedial massage would lead to improvements in functional capacity (cognitive and psychosocial) which will enable the applicant to attempt her goals, including attendance at short courses to learn psychosocial, vocational, and living skills.
Ms Ford-Asbeck noted the positive impact that massage therapy has had on the applicant’s mental health and its’ decline as a result of the therapy cessation. Ms Ford-Asbeck supported the OT’s recommendation for massage therapy.
In her report dated 28 September 2022, Dr Kim Dilati, addressed the question of whether the claimed support was directly related to the applicant’s diagnosis of chronic PTSD. Dr Dilati concluded that there is no evidence that the requested support of remedial massage two to three times a week, is directly related to the applicant’s treatment and management of chronic PTSD.
Dr Dilati expressed the following opinions:
…
there is no evidence to suggest that the requested support (of remedial massages two to three times per week) is directly related to the Applicant’s diagnosis of chronic PTSD.
To date, opinions expressed in medical, occupational therapy and psychological reports have recommended remedial massage to alleviate physical pain, discomfort and provide relief for stress and mental health symptoms rather specifically for the treatment of PTSD.
Ms Munro opined that remedial massage would lead to cognitive and psychosocial improvement in the domains of sleep, mood, pain perception and anxiety and that the Applicant’s pain, in the absence of remedial massage “can trigger a relapse into florid PTSD”.
Somewhat consistent with Ms Munro’s opinions, research indicates that remedial massage can alleviate symptoms of depression, anxiety, pain, and stress, however it is recommended that massage therapy is used as an adjunct to evidence-based, structured psychological and psychotropic medication for the treatment of PTSD or any mental health disorder.
Specifically, in a literature review conducted into the treatment and management of PTSD2, remedial massage therapy was not recommended as a primary treatment and there is limited evidence to support that remedial massage is effective in alleviating symptoms for individuals with PTSD. Rather, the Australian Guidelines into the Treatment of PTSD (2020) strongly recommend the use of Prolonged Exposure (PE), Cognitive Processing Therapy (CPT), Cognitive Therapy (CT), Eye Movement Desensitisation and Reprocessing (EMDR), Narrative Exposure Therapy (NET), Trauma-Focused Cognitive Behavioral Therapy (TF-CBT), Guided internet-based TFCBT (iTF-CBT), Present Centred Therapy (PCT), Stress Inoculation Training (SIT), and medication (SNRI’s and SSRI’s) as first line treatment. Each of these treatment modalities have been found to be evidence-based, effective, and trauma-focused.
Furthermore, there is less evidence to suggest that massage therapy or other Complementary and Alternative Medicine (CAM) therapies are effective with treating PTSD, albeit can be used as an adjunct to the recommended treatment modalities of PTSD such as structured psychotherapy and medication.
Research in the field of PTSD supports the use of remedial massage in reducing anxiety and depressive symptoms, lowering cortisol levels (associated with stress), pain, physical tension, irritability, worry, and dissociation, however evidence from clinical trials in adult patients with chronic disorders of the musculoskeletal system suggests that massage therapy results in significant short-term improvement of symptoms and treatment effects do not appear to be sustained. Therefore, touch-based interventions, such as remedial massage, have been recommended as a somewhat effective adjunctive treatment for psychiatric disorders (such as PTSD) rather than by itself (see Kopf, 2021)
In relation to anxiety and stress, which can be symptoms of PTSD, a meta-analysis of 37 studies found that massage therapy reduced state anxiety, trait anxiety, depression, and the onset of pain after multiple massage therapy treatments, however, there have been limited studies supporting the use of massage therapy in the reduction of other more distressing PTSD symptoms such as reliving experiences, avoidance symptoms, reexperiencing symptoms and hyperarousal.
…
Regarding chronic health conditions such as chronic fatigue syndrome, fibromyalgia, and migraines, massage therapy has found to again reduce anxiety, depression, stress, pain, cortisol and stress-related diseases yet the research has not examined other PTSD symptoms.[21]
[21] Dr Dilati’s report, dated 28 September 2022, pp 4-6.
Dr Dilati concluded that although research indicates that remedial message therapy can improve symptoms of depression, anxiety, stress, and pain, when it is used alongside other evidence-based primary treatments, there is limited evidence available to support the use of remedial massage for sleep, the treatment of PTSD, and for individuals who present with the applicant’s complex physical and mental health conditions.[22]
[22] Dr Dilati’s report, dated 28 September 2022, p 6.
The applicant’s evidence
During the hearing, the applicant gave evidence that:
…
When my chronic pain gets really, really, bad, like, if I have massage therapy, it alleviates some of that pain, then it makes my moods better, it will make me function better. And, you know, like, do my stuff, like, what I’ve got to do. I find that when she’s massaging me, the pain is alleviating, my anxiety is alleviating as well. Does it make sense?[23]
[23] Transcript, p 15, [25-30].
The applicant went on to say that she was attending massage therapy a couple of times a week and that she was also having other forms of treatment like acupuncture which she found beneficial for the bulging disc.[24]
[24] Transcript, p15, [25-30].
Under cross-examination, the applicant stated that massage therapy does not alleviate the pain “entirely, but it helps, which improves my mood...”[25]
[25] Transcript, p16, [25-30].
The evidence of Ms Munro
In oral evidence, Ms Munro stated that massage therapy helped the applicant with a “whole lot of physical symptoms of her anxiety and stress, which meant that she was in a better state psychologically to undertake psychological therapy.[26] Ms Munro opined that in her professional experience, chronic physical pain affects mental health and that this is well-supported in the literature. [27] She agreed that it is of assistance to the applicant to have regular, as an adjunct therapy, massage therapy – “…that assists the psychological therapy by allowing [applicant] to be in a more - well, a less stressed and destressed state”.[28]
[26]Transcript, p 26, [35-45].
[28] Transcript, p 27, [5-10].
In cross examination, Ms Munro did not dispute the accuracy of the references provided in Dr Dilati’s report and acknowledged that her evidence is based on her personal experience, of about 40 years.[29]
[29] Transcript, p 29, [20].
The evidence of Dr Dilati
In summary, Dr Dilati reiterated her written opinion that research indicates that remedial massage can alleviate symptoms of depression, anxiety, pain, and stress but it is recommended as an adjunct to evidence-based structured physiological and psychotropic medication for the treatment of PTSD or any mental health disorder[30]. She referred to alternative ‘treatments’ such as yoga, music therapy, drama therapy, social activities, etc.[31]
[30] Transcript p 48, [5].
[31] Transcript p 48, [45].
In relation to the frequency of massage therapy, Dr Dilati gave evidence that “In my opinion, two to three times a week does seem excessive and I would be asking why that individual is not in therapy two to three times per week, which seems to be much more fitting to the condition of the individual and if we are looking for mediation or rehabilitation, two to three times a week of evidence-based therapy - talking therapy - would be much more beneficial for that individual in the long term”.[32]
[32] Transcript p 49, [40].
Ms Ford-Asbeck

Ms Ford-Asbeck is the applicant’s support coordinator. During the hearing, she noted her observations that massage impacted positively on the applicant’s mental health.[33]
[33] Transcript p 78, [15-35].
Oral and post-hearing submissions
In oral submissions and in essence, Mr Cleary reiterated that there is no evidence that the requested support of remedial massage two to three times a week is directly related to the applicant’s diagnosis of chronic PTSD. Ms Johnson argued that the applicant’s chronic pain is exacerbating the chronic PTSD and making it difficult for the applicant to participate in psychological counselling. Ms Johnson contended that the Tribunal ought to reject Dr Dilati’s conclusions on the basis, among other things, that Dr Dilati has been briefed and paid by the respondent.
On 21 March 2023, the applicant provided documents including a quote from a remedial massage therapist, Mr Pitt who in an email on 20 March 2023, states:
Dear [redacted]
I am a Remedial Massage Therapist, and I am writing to offer my services to assist you with pain management and relaxation which would be aimed at improving your mental health, sleep patterns, and general wellbeing.
My qualifications are as follows:
Cert IV in Remedial Massage from TAFE Randwick
Membership of the professional association, Massage and Myotherapy Australia
Professional Indemnity Insurance with AON
Registration for refund with Private Health Funds
5 years experience as a working Therapist
My standard charges are $250 an hour, but I am happy to provide my services on the NDIS at $193.99 an hour, as long as a suitable support plan is in place.
Please let me know if you are interested in scheduling a massage therapy session with me. I would be more than happy to help you.
In response, the respondent expressed concerns about Mr Pitt’s quote arguing[34] that it is more than double the amount the applicant said she had been paying in the past for her remedial masseuse. The submissions referred to the applicant’s evidence at the Tribunal hearing that she had been seeing a massage therapist in her local area and that the cost is about $95/hour.
[34] Post hearing submissions, 3.
As mentioned earlier, the issues in the review are whether the requested support of two-to-three therapeutic remedial massage sessions per week, is reasonable and necessary under section 34(1) of the NDIS Act, and is most appropriately funded by the NDIS, as required by section 34(1)(f) of the NDIS Act.
The respondent contends that the intention of the NDIS Act is to fund reasonable and necessary supports that are “directly related to an eligible person’s individual ongoing disability support needs” and not reasonable and necessary support needs at large.[35] The respondent relied on McGarrigle v National Disability Insurance Agency[36] and Mortimer J’s comments that the NDIS Act does not contemplate the provision of large “support” but rather the support by which the person is assisted. In NDIA v WRMF, the Court also commented that reasonable and necessary “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”[37].
[35] Statement of Facts, Issues and Contentions (‘SFIC’), 15.
[36] McGarrigle v National Disability Insurance Agency (2017) 252 FCR 121.
[37] NDIA v WRMF [2020] FCAFC 79.
The respondent relied on r 5.1(b) of the Rules which confirm that a support will not be funded under the Scheme if it is not “related to the disability”. That is, a requested support will not be funded if it is not related to the disability in that there needs to be a direct link or connection between the disability and the support funded. The respondent argued that there is no direct link in this instance.
The applicant, Ms Munro, and Ms Ford-Asbeck have argued the benefits of massage therapy, but Dr Dilati concluded that there is no evidence to support the proposition that the requested support of two to three times a week is directly related to the treatment and the management of the applicant’s PTSD. Dr Dilati relied on cited and extensive academic and clinical research indicating that remedial massage can be used as an adjunct to evidence-based structured psychological and psychotropic medication for the treatment of PTSD or any mental health disorder. The Tribunal is satisfied that a fair reading of the evidence indicates that both Ms Munro and Dr Dilati agree that massage therapy can be used as an adjunct therapy for the management of multiple mental health challenges including chronic PTSD.
Ms Munro agreed with Dr Dilati’s comments that remedial massage can be used as a complimentary or alternative therapy and that it must be delivered alongside established evidence-based therapies.[38] Ms Munro did not agree that remedial massage is not generally considered part of a treatment or management plan for PTSD.[39] She emphasized that massage therapy was “always to be an adjunct to the psychological treatment or therapy…”.[40] She accepted that two to three times a week for massage therapy “may be more than what is necessary…there may be times when TRVH doesn’t need such frequent intervention or therapy…it’s very difficult for me to put a number on that, because I’m not skilled. I do not know when TRVH has had her massage therapy, she is much more receptive to psychological therapy”.[41] Ms Munro gave evidence that she did not think that that it was her place to make enquiries about the qualifications of, or type of masseuse that would provide the massage therapy[42].
[38] Transcript of proceedings, p 36, [5-10].
[39] Transcript p 36, [20].
[40] Transcript p 36, [45].
[41] Transcript p 37, [5-10].
[42] Transcript p 38, [25].
Those are significant acknowledgments by Ms Munro; Ms Munro agreed that two to three times a week for massage therapy “may be more than what is necessary” but qualified her response by stating that there may be occasions of increased frequency. The fact that Ms Munro was uncertain about how often the massage therapy was needed, and had not made enquiries about the qualifications, or type of masseuse, raise concerns about her recommendations.
Ms Ford-Asbeck gave evidence that “massages really impacted on [the applicant’s] mental health in a positive manner because she, I guess, got some relief from the massages. She wasn’t, you know, in such a chronic state of mental health continually as she was previous…[When asked] Have you noticed that when she has massages, and is the reduction in physical pain then impacting her positively on her mental health, that she was more able, then, to engage with social activities around the Wayside Chapel: that is, seeing friends, and having coffee, and - being social, in other words?‑‑‑Yes, absolutely. We’re - at Wayside now, we’re very lucky to see TRVH twice, three times a month, and this has declined since all of this business has been going on. So, from where she would definitely come once or twice a week - and, look, all - it wasn’t always perfect with her pain, but, you know, she - the - I’ve seen a decline in her activities at Wayside because of - I believe, because of the lack of massage therapy… You, as her contact person and support person at Wayside - you - it’s your opinion, is it not, that the massage therapy, in reducing her physical pain, greatly positively affects her mental health: that is, her PTSD? ‑‑‑One - one hundred per cent. There’s no doubt about that.”[43]
[43] Transcript p 78, [15-35].
The Tribunal observes that Ms Ford-Asbeck’s contentions that massage therapy positively impacted the applicant’s PTSD, are not supported by the research cited by Dr Dilati, namely that “…there is limited evidence to support that remedial massage is effective in alleviating symptoms for individuals with PTSD”.[44]
[44] Dr Dilati’s report, dated 28 September 2022, 24.
Ms Johnson contended that the Tribunal should view Dr Dilati’s conclusions cautiously given that she was paid for her report by the respondent. The Tribunal considers those submissions to be serious, suggesting a lack of impartiality and independence on the part of Dr Dilati. Dr Dilati outlined her experience, skills, and expertise. The Tribunal observes that she has supported her conclusions by cited academic and clinical research. In oral evidence, Dr Dilati came across as being measured and she thoroughly explained her conclusions. The Tribunal is satisfied that there is no evidence to support Ms Johnson’s contentions that Dr Dilalti is not independent and objective. The Tribunal has decided to give Dr Dilati’s conclusions significant weight.
The applicant’s treating GP, Dr Holloway recommended “indefinite remedial massage…2-3 times/week…to reduce pain, improve mobility, and relieve depression” [45] in addition to analgesics, but the issue is PTSD.
[45] T-Documents, T8, 50.
Mr Yu outlined made a number of recommendations including physiotherapy for “remedial massage with a Physiotherapist to assist with pain management which is affecting her mental health while reducing stress and anxiety[46]” but the applicant was not admitted into the scheme for pain; chronic PTSD was the primary condition for which she was accepted into the scheme.
[46] Mr Yu, Occupational Therapist, dated 21 June 2021, p 12.
The Tribunal acknowledges the views of Ms Munro, Ms Ford Asbeck, Dr Holloway and Mr Yu, about the perceived benefits of massage therapy, however, the Tribunal prefers Dr Dilati’s evidence that there is limited support to the contention that remedial massage is effective in alleviating symptoms of PTSD. Dr Dilati was subject to extensive cross-examination by Ms Johnson, and Dr Dilalti maintained that position and supported it with evidence-based research.
On the evidence, the Tribunal is not satisfied that the support sought, namely two to three sessions of massage therapy a week, is related to the applicant's disability as required by rule 5.1(b), namely chronic PTSD, the disability on which the applicant was granted access to the scheme.
Does the requested support represent value for money? In considering section 34(1)(c), the Tribunal is required to have regard to the matters set out in the Rules at rule 3.1(a)-(f). Rule 3.1(a) requires the CEO/Tribunal to consider "whether there are comparable supports, which would achieve the same outcome at a substantially lower cost". Further rule 3.1(b) requires consideration of “whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant”.
The applicant gave evidence of $95 per hour for a remedial massage and a post-hearing quote of about $200 an hour.
In relation to the question of value of money, Ms Munro stated that when she came to her conclusions about the benefits of massage therapy, she did look at comparable supports to see whether they achieved the same outcome at a different cost. When asked to clarify, she stated “‑‑‑there are no other comparable or supports available that achieve the same result. Because of her physical injuries and disabilities, she’s unable to do exercise and things like that. So the massage is a way of providing a physical therapy which is helpful for the psychological state”[47].
[47] Transcript, p 30, [10-15].
When pressed by Counsel for the respondent, Ms Munro acknowledged that she did not know the cost of the massage therapy.[48] Ms Munro added:
‘…it’s not up to me to be the case manager in this instance. All I’m reporting on is whether or not massage therapy, as an adjunct to psychological therapy, which has been approved by the NDIS, is a reasonable thing in terms of facilitating [applicant] to achieve her stated goals. That’s all I’m really talking about… MR CLEARY: Just so I’m clear, Ms Munro, you make the statement in your first report that, “Massage therapy represents good value for money”. But I want to suggest to you that you’ve really done no assessment of whether that’s the case; do you agree? No, I disagree on the basis of some of the alternative options, such as a personal trainer or an exercise physiologist, then my understanding of the massage therapy was that it was at a very much less cost than either of those two options, which are unsuitable for the other reasons that I outlined earlier; so this represents good value for money…It seems that the NDIA, or the NDIS, was quite prepared to pay for an exercise physiologist or a personal trainer, and the cost per hour of those practitioners is, from my memory - and this obviously going back more than a year, because that’s how long this has been going on for - was very much less than the normal rates that one would pay for a personal trainer or an exercise physiologist per hour. That’s what I was talking about when I was staying it was good value for money. What are those rates? Do you know what they are?‑‑‑Not offhand, no, I don’t know.
…I recall at the time of writing that report more than a year ago, that I was aware, and I was aware because - this is irrelevant, but my husband was just beginning to undertake exercise physiology and I know how much he was paying. And it was very much more than what TRVH was paying or suggesting that she would pay for the massage therapy’.[49]
[48] Transcript, p 30, [20-25].
[49] Transcript, p31, [25-45].
In response to the question as to whether Ms Munro knew about the cost of the massage, she stated “…there might be senior massage therapists who charge more or charge less depending on their skills and qualifications”.[50]
[50] Transcript, p31, [45].
The following exchange provides further responses by Ms Munro:
TRVH: $95 an hour.
…
MS JOHNSON: $95 an hour I’m told.
…
MR CLEARY: I don’t know what that’s for. Is it for an hour? I’ll ask Ms Munro. Ms Munro, do you know what the - sorry, did you make enquiries about how long each massage therapy session would go for when you made this assessment about representing good value for money?   My understanding at the time was it was either for half an hour or an hour, and that a similar amount of time with an exercise physiologist or a personal trainer was significantly more, and as I’ve noted earlier, I made that statement at the time, I can’t remember the exact figures that were involved, but it seemed to me, on the basis of a comparison with an exercise physiologist, that it represented good value for money given that it was not possible for TRVH to be involved in that sort of physical activity that’s involved with an exercise physiologist and/or a personal trainer.
Did you make that assessment based on a particular qualification that a masseuse held?   No, I made that assessment based on what was reported to me by TRVH, the benefits that she received from that massage, especially in the regulation of her emotional reactivity.
Is this right - you were comparing a Thai massage place to exercise physiology or an exercise physiologist or a personal trainer when you were assessing whether or not it was good value for money; is that right?   Well, as I’ve said, I was aware of how much my husband was paying, I was aware that the exercise physiology and personal trainer weren’t suitable options for TRVH given her physical condition. But I’m also aware that she was benefitting greatly from the massage therapy in terms of her ability to be in a cognitive state where she was responsive to psychological therapy and also where she was able to manage the emotional dysregulation that’s associated with her conditions, her disabilities, her psychosocial disability; it was very helpful in that regard. And that was what I was talking about when I was talking about good value for money.
That assessment, was that over an indefinite period of time or was it over a short period of time, that assessment of good value of money comparing these particular therapies?   Well, as Ms Johnson pointed out, I’ve been treating TRVH for a very long period of time.
Yes?   So I’ve been able to observe, over an extended period of years, what’s helpful for TRVH and what’s unhelpful or, in fact, harmful.
Do you know what TRVH has asked in terms of this support? Do you know what the terms of the support were that she asked for; do you know that? In terms of massage therapy?   Not in any detail, but I understand it was something like fortnightly therapy, which coincided with the psychological therapy, although I note that in one of the documents - well, in fact, Dr Dilati’s report, she was recommending up to weekly psychological therapy.
So TRVH is asking for massage therapy up to three times a week indefinitely?
That’s not fortnightly. Does that change your opinion about value for money if you were acting under a misunderstanding about what she was asking?   Well, not really. Because she’s saying “up to”. So there may be times when she is needing more frequent, if she’s in a particularly distressed state. And there may be weeks that go by where she doesn’t need any.
Well, I think she actually asked for two to three times a week, in terms of the applicant; is that something you’re familiar with? Two to three times a week indefinitely?   I don’t recall that.
Can I suggest to you that two to three times a week for massage therapy, regardless of how long the sessions are, would be too frequent for an adjunct therapy such as this; do you agree with that?   I don’t agree or disagree. Because it’s not something that I’m qualified to speak on.
Right?   What I am qualified to speak on is that I know that massage therapy has been helpful for TRVH when she’s facing other stressful situations such as a flare-up of her pain or other psychosocial stressors such as - I don’t know, well, other psychosocial stressors, or if she’d been triggered by other events…[51]
[51] Transcript pp 32-34.
The respondent has contended that the requested support does not represent value for money (section 34(1)(c)), as a lower cost alternative could be utilised. Dr Dilati gave examples of multiple alternatives which would achieve a desired outcome such as relaxation and other therapies that would have a longer-term impact; Dr Dilati gave evidence that massage therapy has a short-term benefit.
When asked about value for money by Mr Cleary – “In terms of value for money, because you understand that one of the questions the tribunal has to look at is value for money, do you consider it would be reasonable for the applicant to explore lower cost alternatives and what would they be in your view?”, Dr Delati stated “Lower cost alternatives - they would have to be sustainable. Something that is cost-neutral and doesn’t involve regular therapy. It could be, as I’ve mentioned, finding a hobby. Something that is meaningful. A meaningful occupation or meaningful activities, are so well known to reduce some depression and some anxiety symptoms, and having that connection as well is also one of the considerations I would give for PTSD, depression, and other mental health issues, so I would be trying to find something that is cost-neutral and sustainable in the long-term, and it could be for example swimming or hydrotherapy or walking. Something along those lines where that individual can find something as relaxing and something that person can enjoy as well. As I have mentioned, there is hundreds of different types of therapeutic activities that could provide a sense of purpose and provide meaningful occupational activities”[52]
[52] Transcript p 50, [30-45].
The applicant herself talked about participation in social interactions at the Wayside Chapel which she thought gave her short-term benefits. Ms Johnson submitted that the applicant’s pain interferes with her ability to go places and that the massages help. Whilst that may be the case, the question is value for money. There is little if any evidence that would assist the Tribunal in determining whether the provision of the requested level of support will substantially improve the life stage outcomes for, and be of long-term benefit, to the applicant. The Tribunal accepts the evidence that massage therapy does not have long-term impacts and that there are alternatives which would achieve a desired outcome such as relaxation and other therapies that would have a longer term impact. On balance and in consideration of the evidence as a whole, the Tribunal is not satisfied that the requested support represents value for money (section 34(1)(c)).

The fourth mandatory criterion under section 34(1)(d) requires the Tribunal to be satisfied that the requested support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. Rules 3.2 and 3.3 of the Rules set out the type of evidence the Tribunal might take into account in deciding whether the support will be, or is likely to be, effective and beneficial.
In relation to the question as to whether remedial massage therapy is generally considered part of an effective and beneficial treatment plan or management plan of a person diagnosed with chronic PTSD, Dr Dilati opined that remedial massage therapy is not generally considered as part of an effective or beneficial treatment plan or management plan of a person diagnosed with (chronic) PTSD; she noted that it is established that more traditional and evidence-based forms of treatment are recommended for the treatment of PTSD such as trauma-focused psychological treatment, which is the most effective evidence-based intervention for PTSD, in addition to medication[53].
[53] Dr Dilati’s report, dated 28 September 2022, p 7.
Dr Dilati noted that the Australian Guidelines for Post-Traumatic Stress Disorder (2020) recommend psychological therapy as the first line treatment, followed by pharmacological treatment, as the second line intervention in the context of broader mental health care[54]. She also cited the American Psychological Association (APA) Clinical Practice Guidelines[55] that recommend four interventions for the treatment of PTSD in adults: Cognitive Behavioural Therapy (CBT), Cognitive Processing Therapy (CPT), Cognitive Therapy (CT), and Prolonged Exposure Therapy (PET). She concluded that “remedial massage therapy is not generally considered part of a treatment or management plan for individuals suffering from PTSD. One reason is due to the potential worsening of PTSD related symptoms and exposure to unmanageable triggers in individuals who seek remedial massage therapy by practitioners who are not trauma informed which can retraumatise some individuals. For an adult patient with PTSD, the APA suggests that clinicians initially offer CBT or prolonged exposure therapy rather than relaxation”.[56]
[54] Dr Dilati’s report, dated 28 September 2022, p 7.
[55] Rich, G. J. (2013). Massage therapy for PTSD, trauma, and anxiety. RUDN Journal of Psychology and Pedagogics, (3), pp 60-66.
[56] Dr Dilati’s report, dated 28 September 2022, p 8.
Dr Dilati was asked to comment on whether remedial massage therapy is generally considered part of a treatment plan or management plan of a person diagnosed with borderline personality disorder (BPD), anxiety, depression, dissociation disorder. She concluded that the Australian Guidelines for BPD (2012)[57] support the provision of structured psychological therapies such as Dialectical Behaviour Therapy (DBT), Mentalisation Based Therapy, Systems Training for Emotional Predictability and Problem Solving (STEPPS), Cognitive Analytic Therapy (CAT), Schema-Focussed Psychotherapy (SFP), Transference-Focussed Psychotherapy (TFP), Cognitive-Behavioural Therapy (CBT), interpersonal psychotherapy, and the management of risk factors leading to self-harm. She also referred to secondary treatments including pharmacological therapies[58]
[57] Clinical Practice Guideline for the Management of Borderline Personality Disorder, 2012, Dr Dilati’s report, dated 28 September 2022, p 8.
Moreover, Dr Dilati noted that remedial massage therapy in isolation is not a substitute for psychotherapy or prescribed medication and is not clinically considered to be part of a treatment plan or management plan for a person diagnosed with BPD, anxiety, depression, or dissociative disorder and that research supports that massage therapy can be beneficial as a complementary and alternative treatment and should be used as an adjunct to evidence-based psychological and pharmacological therapies.[59]
[59] Dr Dilati’s report, dated 28 September 2022, p 9.
In response to the question whether remedial massage therapy is considered best practice for the management of the applicant’s mental health issues, Dr Dilati noted that although remedial massage therapy may assist in the reduction of anxiety, depression symptoms, stress levels (cortisol levels), pain and dissociative symptoms, “massage therapy has not improved sleep quality and in some cases, have worsened PTSD symptoms in participants… In general, remedial massage therapy is not considered best practice for the management of the Applicant’s mental health issues. Rather, best practice is considered to be consistent with the Australian Guidelines of PTSD, depression, anxiety, dissociation, and Borderline Personality Disorder which include structured psychological and pharmacological therapies as the primary treatment (with the exception of BPD)… In my opinion, remedial massage therapy is not considered best practice or the primary treatment for the management of the Applicant’s mental health issues. Rather, I recommend that the Applicant increases her psychological treatment with Ms Munro or another trauma informed psychologist with expertise in treating trauma with the use of EMDR and TF-CBT to relieve her PTSD symptoms on a weekly basis rather than every two to three weeks to ensure. This approach will ensure the Applicant has the required skills to manage her distress associated with her mental health conditions…Additionally, the Applicant should attend a weekly BPD group program, and engage in other complementary therapies such as music therapy which has been found to be effective in individuals with persisting PTSD symptoms and chronic health conditions, in addition to creative art therapies such as drama therapy. Whilst there is a cost associated with these therapies, there is far more research available demonstrating the efficacy of these treatments for PTSD than remedial massage therapy. However, it is evident that the Applicant and her Psychologist deem remedial massage to be most effective at reducing the Applicant’s symptoms, despite inconsistent research finding”[60].
[60] Dr Dilati’s report, dated 28 September 2022, p 11.
It is evident that Dr Dilati opines that the use of remedial massage can form part of a management plan for general mental health conditions but that there is limited evidence-based research to suggest that it can be useful as a primary treatment or part of a management plan with an individual diagnosed with complex PTSD as well as complex mental health disorders such as the applicant’s due to the issue of trauma informed practice and physical touch acting as a trigger in some instances with highly traumatized individuals.
In consideration of the evidence as a whole, the Tribunal finds that massage therapy is not considered part of an effective and beneficial treatment or management plan for the management of chronic PTSD. As such, the Tribunal is not satisfied that section 34(1)(d) is met in respect of the provision of the requested support.
Given the above findings, the Tribunal does not need to deal with the requirements of section 34(1)(f).
CONCLUSION
As the applicant has not met sections 34(1)(c) and (d) of the NDIS Act, in relation to the requested support, the Tribunal finds that the requested support is not a reasonable and necessary support for the applicant.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes

...................................[SGD].....................................
Associate
Dated: 3 May 2023

Date(s) of hearing: 14 March 2023

Solicitors for the Applicant: L. Johnson, Leigh Johnson Lawyers

Counsel for the Respondent:

Solicitors for the Respondent:

M. Cleary, Counsel

A. Wong, Mills Oakley Lawyers

[2023] AATA 1613

3 May 2023

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