WKZQ and National Disability Insurance Agency

WKZQ and National Disability Insurance Agency [2019] AATA 1480 (24 June 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2018/7505
Re:WKZQ
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:24 June 2019
Place:Sydney

The Tribunal decides that:
·the reviewable decision made by the National Disability Insurance Agency on 22 November 2018 is set aside; and
·the matter is remitted to the National Disability Insurance Agency with the direction that the following will be funded as reasonable and necessary supports for WKZQ in accordance with subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth):
o18 hours of Applied Behaviour Analysis (ABA) therapy per week paid on the basis of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week: amount of $70,200 to be used flexibly by WKZQ over a period of 12 months; and
otwo hours of speech therapy per week: amount of $18,616 to be used flexibly by WKZQ over a period of 12 months.

..........................[SGD]..............................................
Dr L Bygrave, Member
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary support – where participant diagnosed with autism spectrum disorder requiring substantial support – early childhood intervention – ABA therapy – speech therapy – keyworker model – whether proposed supports are reasonable and necessary supports as defined in subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – where ABA therapy 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 – where speech therapy 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 – where keyworker model not comparable support – best practice – where tension between parents’ preference that ABA therapy and speech therapy is provided in a clinical setting and best practice that prefers therapy to be provided in natural environments – decision set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 26
National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 31, 33, 34, 100, 209
CASES
McGarrigle v National Disability Insurance Agency [2017] FCA 308
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634
SECONDARY MATERIALS
Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12)
Early Childhood Intervention Australia, National Guidelines: Best Practice in Early Childhood Intervention (April 2016)
Larsson, E.V. Intensive Early Intervention Using Behaviour Therapy is No Longer Investigational (The Lovaas Institute for Early Intervention, 2008)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Planning Operational Guideline, National Disability Insurance Agency
Prior M. and Roberts, J. Early Intervention for Children with Autism Spectrum Disorders: Guidelines for Good Practice (2012)
Prior M. et al. A Review of the Research to Identify the Most Effective Models of Practice in Early Intervention for Children with Autism Spectrum Disorders (Australian Government Department of Families, Housing, Community Services and Indigenous Affairs, 2011)
Roberts J and Williams K, Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers (February 2016)
Roberts J and Williams K, Supplementary report – XXWC (March 2019)
REASONS FOR DECISION
Dr L Bygrave, Member
24 June 2019
INTRODUCTION

WKZQ and FRCT are twin brothers aged three years and 11 months. On 13 February 2018, WKZQ and FRCT were assessed and diagnosed with autism spectrum disorder requiring substantial support (level 2).
This decision relates to the application of WKZQ. While the circumstances of WKZQ and FRCT contain many similarities, I note the facts of each child are distinct and so I have made separate decisions in relation to each child’s application.
WKZQ became a participant in the National Disability Insurance Scheme (the NDIS or Scheme) from 10 April 2017 and his first NDIS plan commenced on 5 September 2017. WKZQ’s second plan, for the period from 24 August 2018 to 22 February 2019, contained a budget of $23,756.20 to support his improved daily living as follows:
Early Childhood intervention supports to work together within the home and community settings, utilising relevant disciplines to support and advise the family in order to meet the plan goals and objectives. To include progress report on outcomes of current goals and objectives and the participant’s ongoing functional needs.
This Plan is ABA therapy funded for a six month period.[1]
[1] Exhibit T-T24, pages 476-477.
The mother of WKZQ, Ms “A”, sought review of this decision. The National Disability Insurance Agency (the NDIA or Agency) wrote a letter to Ms “A” dated 28 November 2018 stating the “requested increase for CB [capacity building] daily [a]ctivities support does not meet the reasonable and necessary criteria, and will not be included in [WKZQ’s] NDIS plan at this time.”[2] This letter enclosed an internal review decision dated 22 November 2018 that was made in accordance with section 100 of the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). The internal review decision set out the NDIA’s reasons for deciding the requested supports of 20 hours per week for Applied Behaviour Analysis (ABA) therapy and four hours of intensive speech pathology per week were not reasonable and necessary.
[2] Exhibit ST-T2.
On 12 December 2018, on behalf of WKZQ, Ms “A” made an application to the NDIS Division of the Administrative Appeals Tribunal (the Tribunal) for review.
On 18 February 2019, pursuant to paragraph 26(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) and with the consent of the Applicant, the Tribunal made an order for the NDIA to increase the funding for improved daily living supports paid to WKZQ from $23,756.20 to $47,512.40 to 24 August 2019 to ensure the continued availability of funding for reasonable and necessary supports until the Tribunal proceeding is finalised.
The matter was heard by the Tribunal in Sydney on 11, 12 and 17 April 2019. WKZQ and FRCT had legal representation, and their applications were jointly heard.
RELEVANT LEGISLATION AND ISSUE
NDIS statutory framework
The objects and principles in the NDIS Act provide guidance on the interpretation of the statute. Section 3 sets out the objects of the NDIS Act, which relevantly include:
·giving effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
·facilitating the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
·promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
·raising 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.
Paragraph 3(3)(b) of the NDIS Act also notes that, in giving effect to the objects of the Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.
Section 4 outlines the general principles guiding actions under the NDIS Act. These principles include:
·affirming that people with disability should be supported to exercise choice in the pursuit of their goals and the planning and delivery of their supports, and to receive reasonable and necessary supports including early intervention supports; and
·acknowledging and respecting the role of families, carers and other significant persons in the lives of people with disability; and
·promoting innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability, as well as positive personal and social development of people with disability including children and young people.
Subsection 4(11) of the NDIS Act also provides that:
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.
Under subsection 209(1) of the NDIS Act, the Minister may make rules prescribing matters under the Act. Relevant to this matter are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the Support Rules), which form part of the legislation.
Operational Guidelines have also been drafted by the CEO of the NDIA to assist staff to make decisions and perform functions under the Act. The Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so: Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[3]
[3] [1979] AATA 179; (1979) 2 ALD 634.
Reasonable and necessary supports
Section 31 of the NDIS Act outlines principles relating to participants’ plans. These include considering and respecting the role of family and other persons who are significant in the life of the participant, and strengthening the capacity of families to support participants who are children. Plans should also, as far as reasonably practical, be underpinned by the right of the participant to exercise control over their own life and to maximise their choice and independence, and to facilitate tailored and flexible responses to their goals and needs.
The matters that must be included in a participant’s plans are set out in section 33 of the NDIS Act; pursuant to paragraph 33(2)(b), plans must include a statement that specifies the reasonable and necessary supports that will be funded under the NDIS.
Subsection 34(1) of the NDIS Act sets out the criteria for the funding of reasonable and necessary supports as follows:
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 the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability. [emphasis added]
Subsection 34(2) of the NDIS Act provides that the NDIS rules “may prescribe methods or criteria to be applied”, or matters to which the CEO (and therefore the Tribunal) is to have regard, in deciding whether or not he or she is satisfied of the matters mentioned in subsection 34(1).
The Support Rules are also relevant to assessing and determining the reasonable and necessary supports that will be funded for NDIS participants. Rule 1.4 of the Support Rules essentially repeats the requirements of subsection 4(11) of the NDIS Act; it provides that reasonable and necessary supports for people with disability should support them to pursue their goals, maximise their independence and undertake activities that enable them to participate in the mainstream community.
The NDIA accepts that the provision of ABA therapy and speech therapy are supports consistent with rule 1.4 of the Support Rules. The issue in dispute between the parties, and therefore the issue for determination by the Tribunal, is what supports are “reasonable and necessary” for WKZQ in accordance with subsection 34(1) of the NDIS Act.
The Applicant is requesting the NDIS fund the following supports:
·ABA therapy – 20 hours per week, consisting of:
otwo hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week (cost $1,350 per week x 52 weeks = $70,200 per year);
osocial skills group two hours per week (cost $220 per week x 52 weeks = $11,440 per year).[4]
·ABA therapy program:
oclinical meeting two hours per month (cost $480 per month x 12 months = $5,760 per year);
osupervisor sessions two hours per month (cost $364 per month x 12 months = $4,368 per year).[5]
·Speech therapy – four hours per week (cost $716 per week x 52 weeks = $37,232 per year).[6]
·Full speech assessment and summary report – annual (cost $390 per year).[7]
[4] Exhibit A2.
[5] Exhibit A2.
[6] Exhibit A6.
[7] Exhibit A6.
Alternately, the Respondent’s position is to fund the following supports for WKZQ:
·capacity building supports for early childhood intervention through keyworker model – 110 hours per applicant (three to four hours per week for first month, two hours per week for next five months, one hour per week for remaining six months, the remaining hours to be used flexibly) (cost $182.74 per hour x 110 hours = $20,101.40 per year);
·six month transition from ABA therapy: therapy assistant level I support to deliver therapy in the natural environment – 168 hours per applicant (12 hours per week for first month, 10 hours per week for second month, eight hours per week for third month, six hours per week for fourth month, four hours per week for fifth month, two hours per week for sixth month) (cost $45.66 per hour x 168 hours = $7,670.88 per year);
·six month transition from ABA therapy: capacity building supports for early childhood intervention to deliver program supervision – 20 hours per applicant (two hours per week for first month, one hour per week for second month, two hours per month for next four months) (cost $182.74 per hour x 20 hours = $3,654.80 per year);
·core supports: support worker to support the applicant and the family to access the community and to implement therapeutic activities into the applicant’s everyday life and routine – 192 hours per applicant (four hours per week for 48 weeks) (cost $48.14 per hour x 192 hours = $9,242.88); and
·travel in accordance with the 2018/2019 NDIS Price Guide.[8]
[8] Respondent’s Position provided at the hearing on 11 April 2019.
It is these two proposed support plans that I consider in relation to the evidence and the requirements of the NDIS Act.
EVIDENCE
The evidence before the Tribunal in this matter is extensive. In order to clearly consider the circumstances of WKZQ, research on early intervention for children diagnosed with autism spectrum disorder and therapy options for WKZQ, I have set out the evidence before the Tribunal in the following format:
·evidence about WKZQ;
·evidence about early intervention for children diagnosed with autism spectrum disorder;
·evidence from WKZQ’s ABA therapy provider;
·evidence from WKZQ’s speech therapy provider; and
·evidence supporting the position of the NDIA.
Evidence about WKZQ
The following information about WKZQ is based on Ms “A”’s written statements dated 3 December 2018 and 7 April 2019, Ms “A”’s oral evidence to the Tribunal on 11 April 2019, Mr “A”’s written statement dated 30 November 2018, and medical and specialist reports.
WKZQ lives with his parents, Ms “A” and Mr “A”, his twin brother, FRCT, and his younger sister in the outer south-west area of Sydney.
WKZQ and FRCT were born premature at 34 weeks gestation in July 2015. Both children suffered from a condition known as benign enlargement of the subarachnoid space, which meant they were prone to brain bleeds. In October 2015, WKZQ and FRCT experienced seizures and, in December 2015, they were admitted to Sydney Children’s Hospital for seven weeks where they underwent multiple brain surgeries and procedures to relieve pressure on their brains. During this period, WKZQ and FRCT began receiving therapy from occupational therapists, physiotherapists and speech therapists; they were monitored by the Brain Injury Rehab Team and referred to Allied Health at a local hospital.
Following their release from hospital, WKZQ and FRCT were unable to attend childcare due to the risk that they could suffer from a further subdural bleed. The family was supported by a carer for 40 hours per week during the period from March 2016 to January 2017. This allowed Ms “A” to work part-time as well as assist WKZQ and FRCT with their rehabilitation and development. From January 2017 to June 2018, WKZQ and FRCT attended childcare.
Ms “A” told the Tribunal that she began to have concerns about the behaviour of WKZQ and FRCT during 2017. She described FRCT pulling clumps of hair out of WKZQ’s head and drawing blood due to biting; and WKZQ and FRCT having lengthy tantrums and meltdowns, throwing food, exhibiting stimming behaviours such as repeatedly banging their heads against windows and spinning objects and themselves, watching shadows and constantly repeating words/phrases. She used “baby gates” to separate WKZQ and FRCT in the home.
Ms “A” and Mr “A” sought an assessment of WKZQ and FRCT. On 20 February 2018, a specialist child assessment team comprising a pediatrician, occupational therapist, pediatric fellow and social worker reported that WKZQ continued to develop skills in the average range and:
…has delayed communication, play and social skills. He likes to talk and uses his language to label, comment and request. He has difficulty with attending to other people’s tasks and likes to direct his own activity. He prefers to play on his own, or with his twin brother, and copes with his peers nearby. He displays features to confirm a diagnosis of Autism Spectrum Disorder, requiring substantial support (Level 2).[9]
[9] Exhibit T-T15, page 434.
For completeness, I note that an assessment of FRCT similarly reported a diagnosis of autism spectrum disorder requiring substantial support (level 2).
At the Tribunal hearing, Ms “A” said that following the diagnosis of autism spectrum disorder for both WKZQ and FRCT, she undertook extensive research to identify possible therapy approaches and potential individual therapists that would work well with her sons. In view of this research, Ms “A” and Mr “A” decided that ABA therapy delivered by “B” centre and speech therapy delivered by Ms “C” would provide the supports they sought for WKZQ and FRCT.

At this point, it is relevant to explain WKZQ’s family situation. WKZQ’s mother, Ms “A” previously worked as a lawyer but is now employed as an investigator on a casual and flexible basis to accommodate the therapy needs of her sons. WKZQ’s younger sister was born in May 2017. Ms “A” is the primary caregiver of WKZQ, FRCT and their two-year-old sister due to the nature of her husband’s work. Since June 2018, Mr “A” has commuted from Monday to Friday to work on a major building project on the mid-north coast of NSW; Mr “A” returns to their family home in Sydney late on Friday evening and departs again late afternoon on Sunday. This means that from Monday to Friday, Ms “A” is effectively a single parent of three children under the age of four years, including two children with autism spectrum disorder. Mr “A” and Ms “A” have no extended family or alternative support network in Sydney as their extended families reside either interstate or overseas and have extremely limited capacity to assist Mr “A” and Ms “A” in their caring responsibilities.
Since March 2018, WKZQ and FRCT have participated in ABA therapy provided by “B” at their clinic in Sydney. WKZQ and FRCT have also participated in speech therapy with Ms “C” at her Sydney clinic since August 2018.
Ms “A” explained the decision for WKZQ and FRCT to participate in ABA therapy and speech therapy in a clinical setting was made for several reasons.
First, the problematic behaviours of WKZQ and FRCT when they are together mean it is extremely challenging for them to participate effectively in combined therapy sessions either at their home or at childcare/preschool. Therapy sessions provided to WKZQ and FRCT separately (at least for some of their therapy time) means more time is spent on actual therapy for each child. Ms “A” told the Tribunal that this approach to therapy on a 1:1 basis is developing WKZQ’s skills and enabling these skills to then be generalised into other settings, such as his preschool and going to the supermarket. She also noted that this approach to ABA therapy is benefiting her daughter because it is assisting to reduce the difficult behaviours of WKZQ and FRCT in their home.
Second, Ms “A” had difficulty finding any ABA therapy providers close to their home in outer south-west Sydney. In a written statement dated 7 April 2019, Ms “A” explained her attempts to find a suitable ABA therapist for WKZQ and FRCT. She wrote that most ABA providers are at least one hour drive from their home and, due to this travel distance, cannot provide ABA therapists who will come to their home. Consequently, Ms “A” and Mr “A” decided that WKZQ and FRCT attending ABA therapy at the “B” clinic, which is about 50 minutes’ drive from their home, is the “most suitable and practical solution” for their family.[10]
[10] Exhibit A13.
Third, Ms “A” advised that WKZQ and FRCT have continued to participate in community preschool settings. She explained that WKZQ and FRCT went to childcare until June 2018, attended a Montessori preschool two days a week from August 2018 to April 2019, and have recently commenced one day a week at their local public preschool. Their younger sister currently attends childcare five days a week.
Ms “A” is closely involved with the ABA and speech therapies provided to WKZQ and FRCT. She takes WKZQ and FRCT to all their therapy sessions and maintains regular/daily communication with their therapists both with face-to-face meetings and via email or WhatsApp messaging. She described many examples of replicating and practicing the positive behaviours learnt by WKZQ and FRCT in ABA therapy and speech therapy when they are at home, driving in the car, and in community settings such as the shops, preschool, swimming lessons and/or at Sunday school.
At the Tribunal hearing, Ms “A” said she has seen “significant progress” in the behaviour and development of her sons, which she attributes to early intervention. She stated, quite simply, that the ABA therapy model “is working”.[11] She observed that since WKZQ commenced ABA therapy in March 2018 and speech therapy in August 2018 he is able to:
·express his needs and wants, say “yes”, “no”, “hi”, “goodbye”, “thank you”, and learn simple conversation;
·learn communication and social skills, including following basic instructions and improving his sharing skills;
·understand simple emotions, and significantly reduce his repetitive behaviours and meltdowns; and
·improve his fine motor strength, drink from a cup (sometimes with accidents) and show some capacity for dressing himself.[12]
[11] Oral evidence of Ms “A” on 11 April 2019.
[12] Exhibit A14.
Ms “A” told the Tribunal that FRCT’s aggressive behaviour towards WKZQ has improved. She described WKZQ’s development in interacting in social settings and waving good bye to his teacher for the first time without prompting.
The written statement of Mr “A” also observed that early intervention has “helped with the meltdowns, which means the boys are more interactive at home” and their behaviour in public is less difficult.[13] Mr “A” noted that he is now able to have a simple conversation with WKZQ, which is strengthening their relationship.
[13] Exhibit A15.
Ms “A” attributed the positive changes in WKZQ’s behaviour to ABA therapy. She explained that ABA therapy breaks down behaviours into “foundational steps” that are taught through positive reinforcement until the child understands it. She noted that the ABA program uses WKZQ’s interests in areas of sight-reading and phonics to encourage him to participate in activities and to hold his attention for longer periods.[14]
[14] Oral evidence of Ms “A” on 11 April 2019.
Ms “A” said that ABA therapy also provided her with techniques for responding to WKZQ’s problematic behaviour. She advised that ABA therapy, which is “very driven on routine and structure”, had enabled WKZQ to engage in daily routines and these skills were being transferred to his home and community environments.[15] Ms “A” compared WKZQ’s past experiences of skills development attending childcare and Montessori preschool with his current experiences of ABA therapy and speech therapy, and identified skills learnt by WKZQ that were clearly attributable to his attendance at ABA therapy.
[15] Oral evidence of Ms “A” on 11 April 2019.
In relation to the future for WKZQ, Ms “A” said the goal of early intervention of ABA therapy and speech therapy is to prepare him to attend their local public preschool for two to three days in 2020 (subject to availability) and a mainstream school in 2021.[16] She advised that she and Mr “A” have chosen a primary school for WKZQ and FRCT that has an assisted learning unit for children with autism spectrum disorder, but their hope is for WKZQ and FRCT to be able to participate in mainstream education.
[16] Oral evidence of Ms “A” on 11 April 2019.
Evidence about early intervention for children with autism spectrum disorder
Extensive evidence was filed with the Tribunal about early invention for children diagnosed with autism spectrum disorder. This evidence included detailed examination of the National Guidelines: Best Practice in Early Childhood Intervention (ECI Guidelines), academic research on early intervention, and oral and written evidence from Associate Professor “D” (paediatrician).
The ECI Guidelines identify that key best practices for children with disability and/or developmental delay recognise:
(a)the central role of families in the lives of children and the family’s expertise on their child’s abilities and needs;
(b)every child has the “right to participate fully in their family and community life and to have the same choices, opportunities and experiences as other children”;
(c)engaging a child in “natural environments” (such as their home, community and early childhood settings) promotes their inclusion and opportunities to participate, learn and practice skills;
(d)the family and professionals “work together as a collaborative and integrated team” to support the child;
(e)the capacity of the child, their family, professionals and community is built through coaching and collaborative teamwork;
(f)intervention strategies are grounded in research and “sound clinical reasoning”; and
(g)outcomes focus on what parents want for their child and family.[17]
[17] Early Childhood Intervention Australia, National Guidelines: Best Practice in Early Childhood Intervention, (April 2016) at Exhibit R1, page 7.
Relevant to this matter, the ECI Guidelines also acknowledge the role of direct intervention by specific professionals and note:
…there are also other bodies of evidence that suggest specific intervention for children with specific needs, such as…autism spectrum disorder that lead to improvement in childhood development and skill development…Therefore, providing ECI does not exclude the provision of specific targeted interventions, it is the way in which these interventions are provided and supported which is critical.[18]
[18] Ibid, page 17.
Academic research articles on early intervention and behaviour therapy for the treatment of autism spectrum disorder support positive outcomes for children. Some of the pertinent points from research articles provided to the Tribunal include:
·The following statement by the American Academy of Pediatrics in 2007:
The effectiveness of ABA-based intervention in ASDs [autism spectrum disorder] has been well documented through 5 decades of research… Children who receive early intensive behavioral treatment have been shown to make substantial, sustained gains in IQ, language, academic performance, and adaptive behavior as well as some measures of social behavior… [emphasis added][19]
·In 2011, the Australian Society for Autism Research reviewed the research literature and concluded the following about the intensity of a behavioural therapy program:
The intensity of a program refers to the number of hours of treatment the child receives per week as well is the intensity of training, curriculum, evaluation, planning, and coordination. A total of 15-25 hours per week over 2-3 years is generally recommended for autism early intervention in the research literature…with some programs recommending as much as 40 hours per week… [emphasis added][20]
·Good practice guidelines developed in 2012 for early intervention for children with autism spectrum disorder outlined learning-based interventions for children under seven years old and noted:
Research has consistently shown good outcomes for intensive ABA programs and there is growing evidence that intensive developmental and combined programs are also effective…
The amount of intervention is usually described as number of hours of treatment per week. Fifteen to twenty-five hours per week is generally recommended for autism early intervention in the research literature (Roberts & Prior 2006) with some programs recommending as much as 40 hours per week… [emphasis added][21]
[19] Cited in Larsson, E.V. Intensive Early Intervention Using Behaviour Therapy is No Longer Investigational (2008) at Exhibit T-T5, page 79.
[20] Prior M. et al. A Review of the Research to Identify the Most Effective Models of Practice in Early Intervention for Children with Autism Spectrum Disorders, Australian Government Department of Families, Housing, Community Services and Indigenous Affairs (2011) at Exhibit T-T6, page 117.
[21] Prior M. and Roberts, J. Early Intervention for Children with Autism Spectrum Disorders: Guidelines for Good Practice 2012 at Exhibit T-T7, pages 281-282.
In 2016, the NDIA funded a report by Professor Jacqueline Roberts and Professor Katrina Williams on evidence-based good practice for supports for preschool children diagnosed with autism spectrum disorder, their families and carers. In a section on autism spectrum disorder titled “Background information”, Professors Roberts and Williams noted that:
What we do know is that all children with autism have difficulties with social communication and restricted or repetitive behaviours, for some including sensory problems that are out of keeping with children of similar ability...
Autism is a highly variable condition, which changes over time as children grow and develop…
We know that no 2 children with autism are the same, which means that interventions will need to be adapted to suit each child’s autism characteristics, their abilities, their environment and their parents’ priorities and values… [emphasis added][22]
[22] Roberts J and Williams K, Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers (February 2016) at Exhibit T-T9, pages 332-333.
Consistent with best practices outlined in the ECI Guidelines, Professors Roberts and Williams noted:
- Parents/carers of children with autism should be supported during the early intervention years.
- Supports for children with autism should be evidence-based and delivered using a family-centred approach that incorporates individual planning.
- The specific early intervention program chosen will take into account family preferences and capacity and each child’s strengths and difficulties, age and stage of development.
- Aims of support for the child with autism are to improve social communication and minimise behaviours that challenge to enhance learning and participation…
- Early intervention programs for children with autism must be of sufficient intensity and fidelity (i.e. implemented consistently and accurately) and be evaluated to ensure program quality.[23]
[23] Ibid, pages 323-324.
Professors Roberts and Williams wrote that:
Reviews and guidelines that provide evidence about intensity (hours per week) and duration of interventions report that comprehensive programs that have been evaluated and shown to be effective most commonly provided for between 15 and 25 hours a week, suggesting a midpoint of 20 hours, and for at least 1 year… [emphasis added][24]
[24] Ibid, page 325.
They recommended children who have been diagnosed with autism “should receive 20 hours per week of early intervention” with the level of support including requirements that:
1. the support for the child and family fulfils specifications… in particular:
- staff to child ratios can vary between 1:1 and 1:3 as determined by the child’s individual program
- all staff are autism trained…
2. the support is sufficiently flexible that it can be adapted and modified in line with the child and parents’ strengths and needs.[25]
[25] Ibid, pages 325-326.
Professors Roberts and Williams specified that early intervention can be delivered by professionals, parents or carers, and can occur “in the home, community, childcare facilities, educational settings, specialised autism centres, specialised early intervention centres or a combination of these.”[26]
[26] Ibid, page 331.
In March 2019, the NDIA commissioned a supplementary report from Professors Roberts and Williams, which clarified and adapted some of their recommendations made in 2016. They stated:
The recommendation for early intervention in autism…includes working with children in natural environments to maximise the functional development of skills and provide maximum opportunities to interact with peers and develop social communication skills. Different providers define ‘in clinic’ differently, but it is likely ‘in clinic’ is not a natural context and would therefore not be the optimal setting for much intervention, especially once key elements of a desired skill or behaviour are mastered in that setting…
The recommendation for 20 hours a week…refers to the first 12 months after diagnosis…[The] type, duration and intensity of the intervention after the first 12 months should be determined based on monitoring of outcomes, taking into account methods, settings and intensity of early intervention provided and the response during the first 12 months. [emphasis added][27]
[27] Roberts J and Williams K, Supplementary report – XXWC (March 2019) at Exhibit R4, pages 9 and 18.
In relation to the applications of WKZQ and FRCT, the NDIA commissioned a report from Associate Professor “D” who has clinically specialised in the area of developmental and behavioural paediatrics. Associate Professor “D” provided a written report dated 25 March 2019 and gave oral evidence to the Tribunal on 12 April 2019. Associate Professor “D” did not personally assess either WKZQ or FRCT but relied on written reports provided to him by the NDIA.
At the Tribunal hearing, Associate Professor “D” explained that autism is an “impairment of social processing” and the “centerpiece of treatment for autism has to be learning deep understandings about how humans work within relationships and forming social connections that are meaningful”.[28] He highlighted there are significant variations between children diagnosed with autism and noted the importance for an early intervention program to focus on the individual child rather than their diagnosis of autism.
[28] Oral evidence of Associate Professor “D” on 12 April 2019.
In his written report, Associate Professor “D” stated that “early intervention” conveys both the choice to intervene as early as possible (rather than take a “wait and see” approach) and the opportunity for a child in their preschool years to respond to change, described as “neuroplasticity”.[29] He explained that:
The basis of therapeutic success is repetition towards the establishment of beneficial, sustained neuro-plastic changes at the biological level. This is fundamentally no different from any form of human learning, with goal-directed repetition training associated with corrective feedback. This process leads to ‘neuroplastic’ changes in underlying brain control systems.[30]
[29] Exhibit R4, page 3.
[30] Exhibit R4, pages 7-8.
Associate Professor “D” nuanced this statement further in his oral evidence, noting that understanding socially appropriate behaviour entails a “combination of learning the behaviour and a deeper enriched understanding of the purpose of the behaviour”.[31] He commented that “discrete skills may be most successfully taught in a one-to-one, or small group clinical setting, as long as it is understood that the second step towards the generalisation and utilisation of these skills in everyday life is likely to be necessary”.[32]
[31] Oral evidence of Associate Professor “D” on 12 April 2019.
[32] Exhibit R4, page 9.
Based on the reports about WKZQ and FRCT provided to him, Associate Professor “D” identified that early intervention would be appropriate and beneficial for both WKZQ and FRCT, and opined that their programs should incorporate the following components:
·“case coordination” by a single professional individual (or collaborative group) with the skills to overview the child’s activities and priorities, and negotiate balance for the child and their family;
·each “major area of need” for the child is supervised by a professional with skills in the appropriate methodological area (e.g. speech pathology);
·individuals who live with the child on a day-to-day basis are incorporated into the therapeutic process;
·therapeutic activities for the child are undertaken in an “ecological context” (such as at home or preschool) where the knowledge and skills acquired from therapy are easily and intrinsically generalised into day-to-day living; and
·therapeutic activities for the child are provided “through inclusion within everyday activities of living”.[33]
[33] Exhibit R4, pages 6-7.
Finally, I note the following comments made by Associate Professor “D” that are applicable to my consideration of the evidence. First, he described as “odd” that treatment for WKZQ and FRCT differentiated between speech intervention and behavioural intervention given that language is one of the challenges for WKZQ and FRCT.[34] Second, Associate Professor “D” observed in his report that it “would be beneficial to gather regular outcome information of sufficient quality to inform an actuarial analysis of response to intervention”.[35]
[34] Oral evidence of Associate Professor “D” on 12 April 2019.
[35] Exhibit R4, page 17.
Evidence from WKZQ’s ABA therapy provider

ABA therapy is described as:
…a scientific discipline that focuses on the analysis, design, implementation and evaluation of social and other environmental modifications to produce meaningful changes in human behaviour. ABA includes the use of direct observation, measurement and functional analysis of the relations between the environment and behavior; it uses changes in environmental events, including antecedent stimuli and consequences, to produce practical and significant changes in behaviour.
ABA involves identifying preferred consequences for an individual, raking skills down into small component parts, teaching component skills, and delivering preferred consequences following each demonstration of the skill. Smaller component skills are then gradually scaffolded into larger functional skills. Regular and intensive sessions are required for a child to improve.[36]
[36] Exhibit A1, page 3. This description is adapted from the Behaviour Analyst Certification Board (2014).
WKZQ has attended the “B” centre to participate in ABA therapy from March 2018 until the present.
On 3 December 2018, Ms “E” (program supervisor at “B”) provided a written progress report on WKZQ, which outlined the history of clinic-based intervention received by WKZQ from March 2018 to November 2018.[37] This progress report also outlined WKZQ’s challenging behaviours, skills acquisition and mastered programs, and set out that his new/future goals were to:
·start toilet training and be independent in the toilet routine;
·start to read words (e.g dog, seas, three);
·generalize greetings with new persons;
·be able to do fine motor movements; and
·improve his conversational skills (initiating and asking questions).[38]
[37] Exhibit A11.
[38] Exhibit A11, page 6.
WKZQ’s current ABA senior therapist at the “B” centre, Ms “F”, produced a detailed written report dated 8 April 2019 and gave oral evidence at the Tribunal hearing on 11 April 2019.
Ms “F” summarised the intensity of WKZQ’s participation in ABA therapy from March 2018 to April 2019 as:
·March 2018 – May 2018: nine hours ABA therapy per week; four hours in 1:1 setting and five hours in 1:2 setting;
·June 2018 – July 2018: nine hours ABA therapy per week; two hours in 1:1 setting and seven hours in 1:2 setting;
·August 2018 – November 2018: 18 hours ABA therapy per week; seven hours in 1:1 setting and 11 hours in 1:2 setting;
·December 2018 – April 2019: 18 hours ABA therapy per week in 1:1 setting; six hours implemented by senior therapists and 12 hours provided by junior therapists, with program supervision of four hours per month.[39]
[39] Exhibit A1, pages 3-4.
At the Tribunal hearing, Ms “F” provided a comprehensive explanation of WKZQ’s progress since commencing ABA therapy in March 2018. Ms “F” outlined WKZQ’s baseline (probe) data and acquisition data, and explained how this data contributed to developing WKZQ’s skills areas in relation to manding (requesting), fine motor, asking for information, turn taking game, matching and toilet training. Ms “F” referred to her report dated 8 April 2019 to identify the following skills acquired by WKZQ since commencing ABA therapy:
·requesting his wants and needs to others;
·increased ability to perform a variety of fine motor actions;
·asking up to four different “WH” questions to obtain more information;
·participate in turn taking games with a variety of age appropriate activities;
·toilet trained, be able to void in different environments and complete the toileting routine independently; and
·be able to match and sort identical and similar 2D items.[40]
[40] Exhibit A1, page 8.
The report dated 8 April 2019 also outlined results from a Verbal Behaviour Milestones Assessment and Placement Program (VB-MAPP) completed with WKZQ on 27 March 2019 to assess his current skills. This assessment of WKZQ showed he has significant deficiencies in the following skills areas because at the age of 44 months, he has the equivalent skill level of a child aged:
·27 months for visual perceptual skills and matching to sample;
·13 months for social behaviour and social play;
·28 months for listener responding by feature function class; and
·30 months for “intraverbal”.[41]
[41] Exhibit A1, page 11.
Conversely, in the skill area of independent play, WKZQ demonstrated the level of a child at the age of 42 months; in the skill area of reading, he showed the ability of a child aged 47 months; and in the skill area of maths, he was assessed at the ability of a child aged 41 months.[42] Ms “F” also noted at the hearing that WKZQ has a strong interest in letters and numbers, and this interest is utilised in developing his skills and goals.[43]
[42] Exhibit A1, pages 9-10.
[43] Oral evidence of Ms “F” on 11 April 2019.
Ms “F” explained to the Tribunal that the VB-MAPP assessment of WKZQ’s skills guides the development of his future goals, which become the focus of his ABA therapy sessions. More specifically, the report dated 8 April 2019 outlined WKZQ’s skill areas and skill deficiencies assessed by the VB-MAPP, his future goals associated with particular skill areas, and how these goals will be achieved in WKZQ’s ABA therapy sessions over the next 12 months. Ms “F” used this process to explain her rationale for recommending that WKZQ is funded for 20 hours of ABA therapy each week, in addition to his program supervisor time of four hours per month.[44] Thus, Ms “F”’s report provided detail about and context regarding the quote from the “B” centre dated 8 April 2019 that formed the basis of WKZQ’s application for the NDIS to fund the supports of ABA therapy and ABA therapy program set out at paragraph 20.
[44] Exhibit A1, pages 11-12.
At the Tribunal hearing, Ms “F” addressed questions about the intensity of the ABA therapy provided to WKZQ and the reasons for WKZQ’s participation in ABA therapy in a clinical setting.
Ms “F” explained that the recommended 20 hours of ABA therapy each week is based on “best practice guidelines”.[45] She noted that six hours per day of ABA therapy provided the opportunity for learning to happen through repetition of skills and consistency: she explained a therapist will not solely focus on learning a new skill, but also work on maintaining skills that have already been mastered and generalising the skill to different people and settings. Ms “F” advised she had constant communication with WKZQ’s mother, Ms “A”, so that the skills being worked on with WKZQ in ABA therapy sessions can be mirrored and practiced at home.
[45] Oral evidence of Ms “F” on 11 April 2019.
The issue of WKZQ attending ABA therapy at the “B” clinic was also addressed by Ms “F”. She acknowledged the logistical issues in terms of the distance between WKZQ’s home and the “B” clinic, and advised the most economic and viable solution was for WKZQ and FRCT to attend the clinic. She also advised that the ABA clinical setting enables the therapist to “set up” learning opportunities with other children (or adults) to practice particular skills. She contrasted this approach to a childcare or preschool setting that is “very child-led” and so is less likely to facilitate peer interaction, particularly for WKZQ and FRCT who have “very low scores for social behaviour and social play”.[46]
[46] Oral evidence of Ms “F” on 11 April 2019.
Finally, limited evidence was provided to the Tribunal regarding the application for the NDIS to fund WKZQ to attend the ABA therapy “social skills group” for two hours per week at the significantly higher hourly cost ($220 per week x 52 weeks = $11,440 per year).[47] In response to my question at the hearing, Ms “F” advised this comprises a group of children attending the “B” centre where a therapist facilitates interactions and builds relationships amongst the group. She noted that while this is a “skill that should be worked on all the time in preschool and childcare…this specific social skills group…identifies specific targets for FRCT and WKZQ”.[48]
[47] Exhibit A2.
[48] Oral evidence of Ms “F” on 11 April 2019.
There was also minimal evidence about the role and benefit for WKZQ of the “clinical meeting” of two hours per month at a cost of $5,760 per year, or the “supervisor sessions” of two hours per month at a cost of $4,368 per year. Ms “A” and Ms “F” made brief reference to these sessions in their oral evidence but no detail about the purpose of these meetings/sessions was provided to the Tribunal.
Evidence from WKZQ’s speech therapy provider
Ms “C” (speech pathologist) provided written assessments about WKZQ on 2 August 2018 and 23 November 2018, and a further report about WKZQ and FRCT dated 8 April 2019. Ms “C” also gave oral evidence at the Tribunal hearing on 12 April 2019.
On 2 August 2018, Ms “C” reported that WKZQ presented with “autism, a moderate receptive and a moderate expressive language disorder, speech delay and a social language delay”.[49] She recommended that WKZQ would benefit from four hours of intense speech pathology services per week comprising both 1:1 and small group sessions to “adequately address his receptive and expressive language delay, speech clarity and social skills delay”.[50] She also stated that WKZQ would benefit from “behavioural support or psychology services to address his meltdown behaviour, feeding difficulties and self-help skills”.[51]
[49] Exhibit A7, page 9.
[50] Ibid.
[51] Ibid.
On 23 November 2018, Ms “C” recorded WKZQ’s progress from an average of 1.25 hours per week of speech pathology sessions between August 2018 and November 2018. Ms “C” also noted that Ms “A” was a consistent presence at therapy sessions and undertook speech pathology activities in the home and community setting. Ms “C” reported:
During the past 4 months, [WKZQ] has demonstrated the ability to acquire new skills across the domains of receptive language, expressive language, speech clarity, social skills, and behaviour management. In addition, [WKZQ] has begun to generalise the skills into his everyday life.[52]
[52] Exhibit A5, page 8.
Ms “C” stated that both WKZQ and FRCT “have demonstrated the ability to make functional gains and build their capacity for independence through intensive therapy”.[53] She outlined the anticipated outcomes for WKZQ and FRCT from their speech therapy program was an increase in their independence (and less reliance on formal 1:1 supports) to ensure their transition to attending preschool for three days per week in 2020 and their eventual transition to school in 2021. Ms “C” also reported Ms “A”’s priority for therapy sessions is to assist WKZQ and FRCT integrate into mainstream community activities such as trips to open-air parks or the shops, and to attend birthday parties, sports lessons and community activities.
[53] Exhibit A5, page 9.
Ms “C” provided the following quote for WKZQ’s speech therapy program:
·Speech therapy – four hours per week (cost $716 per week x 52 weeks = $37,232 per year).
·Full speech assessment and summary report – annual (cost $390 per year).[54]
[54] Exhibit A6.
In a written report about WKZQ and FRCT on 8 April 2019, Ms “C” explained in detail the reasons why WKZQ required this level of support:
Both [FRCT] and [WKZQ] present with autism spectrum disorder, receptive and expressive language disorders, speech articulation delay, social skills disorders, difficulty with self-help, and challenging behaviours. This comorbidity of conditions warrants a more intensive therapy model than a client who may present with a single diagnosis. There is substantial scientific evidence to support the argument that more intensive therapy (i.e. 4 hours per week) will yield greater therapy outcomes. The intensive therapy will occur in a variety of settings including 1:1 sessions, 2:1 sessions, small group social skills sessions, preschool visits to ‘up skill’ caregivers, and in-home sessions. All sessions, irrespective of setting have and will continue to build upon the capacity of the participants to develop their independence and to foster the ultimate goal of being enrolled in a mainstream environment with limited supports. Based on my clinical observations and time spent working with [FRCT] and [WKZQ], I do not believe therapy should be solely conducted within the home and wider community environments. The nature of their challenging behaviours in these environments has the capacity to greatly reduce the intensity and effectiveness of therapy, thereby negating ‘value for money’, while spending significant amounts of time in ‘off task’ behaviours. It is recommended therapy occur in a variety of environments, including 1:1 and move to larger group settings as the boys develop skill sets. It is recommended [FRCT] and [WKZQ]’s therapy be conducted on a receding schedule, that is beginning with high frequency and intensity, and weaning off as the boys develop skills, capacity and independence…
Intensive therapy is aimed at building capacity and language skills, so that the boys will be able to attend mainstream school, with limited supports, and to ensure they will be independent as adults. 4 hours of therapy per week is recommended for 12 months, with a receding model review to follow in 12 months’ time… [emphasis added][55]
[55] Exhibit A3, pages 1-2.
Both in her report dated 8 April 2019 and in oral evidence to the Tribunal, Ms “C” addressed the NDIA’s concern that speech therapy sessions for WKZQ were taking place at her clinic, rather than in his home or at his preschool.
Ms “C” explained the behaviours of WKZQ and FRCT during her assessment in their home in August 2018 were observed to include “prolonged periods of kicking, screaming, verbal protesting, and refusal behaviours”.[56] Consequently, Ms “C” and Ms and Mr “A” decided “as a team, that in-home intervention was not appropriate at the time, due to the boys’ behaviours, [their sister’s] needs and to ensure that therapy sessions would yield the greatest possible results”.[57]
[56] Exhibit A3, page 5.
[57] Exhibit A3, pages 5-6.
Ms “C” noted that WKZQ and FRCT’s behaviour has continued to impact on the method of service delivery as there is an increase in their off-task and challenging behaviours when they participate together in speech therapy sessions. She observed that, when WKZQ and FRCT are together:
…a large amount of time…up to 30-40 minutes of a session could be managing their behaviour to help them transition back to the task… We’ve even had to remove [Ms “A”] from one-on-one sessions in the past to try and get the boys back on-task so the method of therapy, intervention and delivery at the moment has been primarily one-on-one; yes, we have preschool visits, yes, we have done home visits, yes, we’ve done some two-on-one, but the nature of the behaviours mean that without speech pathology sessions each week, we’ve focused on one-on-one so that we can manage those behaviours and make the most results.[58]
[58] Oral evidence of Ms “C” on 12 April 2019.
Ms “C” told the Tribunal that speech therapy sessions undertaken since August 2018 have focused heavily on up-skilling WKZQ with the basic language skills required for him to transition back into therapy sessions provided in the home or preschool environment. She confirmed she recently attended WKZQ’s preschool to assess his language needs within that environment, and provide support and strategies to the staff and caregivers.
Since March 2019, WKZQ and FRCT’s hours of speech therapy have increased to four hours per week. Ms “C” described how this has had “amazing results”, in particular with regard to their social skills and the ability of WKZQ and FRCT to participate in games, play with more age appropriate toys, and improve their tolerance of each other in the same room.[59]
[59] Oral evidence of Ms “C” on 12 April 2019.
Ms “C” also addressed questions about the provision of both ABA therapy and speech therapy for WKZQ and FRCT. At the Tribunal hearing, Ms “C” described the role of a speech pathologists is to “study, diagnose and treat communication disorders”.[60] She explained her experience working with ABA therapists and opined that:
ABA and Speech Pathology complement each other as they rely on the same principles of teaching and work together to target behaviour management, speech articulation, receptive language, expressive language, AAC, fine motor, gross motor, and social skills… For example, behaviour intervention programs are integrated throughout speech pathology sessions to assist in minimal time being spent in ‘off task behaviours’. Similarly, speech pathology goals [are]…incorporated into ABA sessions to ensure generalisation across people and places.[61]
[60] Oral evidence of Ms “C” on 12 April 2019.
[61] Exhibit A3, page 12.
Ms “C” further confirmed to the Tribunal that WKZQ’s ABA and speech therapy teams work closely together and with his parents.
Evidence supporting the position of the NDIA
In March 2019, the NDIA commissioned Ms “G” (occupational therapist) and Ms “H” (speech pathologist) to undertake a functional and communication assessment of WKZQ and FRCT. This assessment occurred at the home of WKZQ and FRCT on 7 March 2019, and Ms “G” and Ms “H” subsequently produced an undated written report that was filed with the Tribunal on 26 March 2019. A further supplementary questions written report dated 25 March 2019 was also completed by Ms “G” and Ms “H”. Ms “G” provided oral evidence to the Tribunal on 12 April 2019 and Ms “H” gave oral evidence on 17 April 2019.
Ms “G” and Ms “H” confirmed at the Tribunal hearing that their assessment of WKZQ at his home was based on Ms “A”’s self-report via a Family Outcome Measure and their observations of WKZQ and FRCT. The NDIA also provided Ms “G” and Ms “H” with reports by WKZQ’s ABA therapists and speech pathologist. Neither Ms “G” nor Ms “H” spoke with WKZQ’s treating therapists.
In their report filed on 26 March 2019, Ms “G” and Ms “H” opined the following about WKZQ:
[WKZQ] has a number of strengths that are often overlooked by his challenges. [His] strengths are: social communication and play with adults, his ability to engage in play activities inside and outside for longer than 5 minutes at a time and his ability to communicate his basic wants and needs. [He] finds it challenging to overcome sensory sensitivities impacting his regulation, incorporating his siblings and other children into his play and engaging in gross motor activities independently due to his delayed gross motor skills resulting in him bumping into objects on a regular basis.[62]
[62] Exhibit R3.
Ms “G” and Ms “H” expressed their opinion that WKZQ’s current therapy was “working on goals that are beyond his age level”, such as reading words.[63] They also stated that WKZQ would “highly benefit from therapy in his natural environments with his siblings and mother involved”, which would “support him to transfer his skills and embed them into his every day routines”.[64]
[63] Ibid.
[64] Ibid.
Following their assessment, Ms “G” and Ms “H” recommended that WKZQ receives NDIS funding to access therapy using a “keyworker model”. They described the “keyworker model” as a “method of service delivery in early intervention” that provides families access to a range of therapies, but therapy is delivered through one qualified professional, named the “keyworker”. For WKZQ, Ms “G” and Ms “H” suggested the keyworker is an occupational therapist.
Ms “G” and Ms “H” recommended WKZQ “has access to an intensive keyworker therapy block for the first 6 months of his plan” with the keyworker supporting “the family in the home and community environments for up to 6 hours a week” [emphasis in original].[65] Slightly confusingly, Ms “G” and Ms “H” later recommended in their report that WKZQ “receives 110 hours of keyworker funding for 12 months…used in an intensive block for the first 6 months”.[66]
[65] Ibid.
[66] Ibid.

Ms “G” and Ms “H” further recommended that therapy is conducted in WKZQ’s “natural environments, his home, preschool, childcare and the community”.[67] They opined that the keyworker model “will support the transition from intensive ABA and speech pathology intervention into [WKZQ’s] everyday routines and natural environments”.[68]
[67] Ibid.
[68] Ibid.
Due to uncertainty about the number of therapy hours Ms “G” and Ms “H” recommended for WKZQ and FRCT in their written report, the NDIA provided the Applicant and Tribunal with a document titled “Respondent’s Position” during the hearing on 11 April 2017. This set out the Agency’s proposal to fund supports for WKZQ as set out in paragraph 21.
In oral evidence to the Tribunal on 12 April 219, Ms “G” confirmed the “Respondent’s Position” reflected recommendations in the report she wrote with Ms “H” that was filed on 26 March 2019. Ms “G” contended that this level of supports would enable WKZQ to achieve the outcomes identified from his assessment, which were:
·to be able to communicate and play with other children;
·to be able to hold attention so he can complete tasks throughout his daily routines;
·to be more independent within the home; and
·to be able to self-regulate his emotions and not get so upset.[69]
[69] Ibid.
Ms “G” acknowledged that, while she has experience as an occupational therapist working with children with autism spectrum disorder, she has no expertise in ABA therapy. Nonetheless, Ms “G” stated unequivocally that ABA therapy would not be part of WKZQ’s recommended keyworker model.
At the hearing, the Tribunal asked both Ms “G” and Ms “H” about the reasons underpinning the hours of supports recommended for WKZQ as set out in paragraph 21 above. In brief, their evidence was that they looked at WKZQ’s goals, considered what another family using the keyworker model was accessing under the NDIS, and recommended a program they believed was reasonable and necessary to assist WKZQ’s family to transition from ABA therapy to the keyworker model.
CONSIDERATION
As set out at paragraphs 20 and 21, the Applicant and the NDIA have presented two alternate models of supports for WKZQ. In brief, these models are: on one side, the Applicant seeking funding to support his participation in intensive ABA therapy and speech therapy over a period of 12 months; and, on the other side, the Agency proposing to fund therapy through a keyworker model at a less intensive and reducing rate over a period of 12 months.
These alternate models of therapy highlight the following issues in dispute between the parties in terms of what supports are reasonable and necessary for the NDIS to fund pursuant to subsection 34(1) of the NDIS Act: first, the number of hours of therapy for WKZQ; second, the type of therapy supports; third, the cost of the proposed therapy supports; and fourth, the environment in which WKZQ should participate in therapy.
I now consider the supporting evidence for these models in relation to the provisions of subsection 34(1) of the NDIS Act. In my consideration below, I have regard to Mortimer J’s decision in McGarrigle v National Disability Insurance Agency, which provides the following guidance to assess “reasonable and necessary supports” in the NDIS Act:
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”…
In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described…then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant…That determination can only be made on the basis of probative evidence.
Once a decision is made that the support…is reasonable and necessary, then subject to the other requirements in s 33(5) and s 34, the scheme requires and contemplates that support “will” be funded. In my opinion, that can only mean wholly or fully funded.
The subject matter of the CEO’s approval in s 33(2)(b) is the reasonable and necessary supports that “will” be funded. The language is imperative, and in my opinion this is consistent with the applicant’s contention that the relevant gateway established by the legislative scheme is whether the support is “reasonable and necessary”, and once through that gateway, the scheme intends the support will be fully funded… [emphasis added][70]
Will the support assist WKZQ to pursue the goals, objectives and aspirations included in his statement of goals and aspirations – paragraph 34(1)(a)?
[70] [2017] FCA 308 at [91], [93-95].
The Planning Operational Guideline at part 10.3 reiterates that the “NDIA must be satisfied that the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations”. The Guideline further notes:
This requirement will be satisfied where the NDIA is able to identify a clear and direct link between the support to be funded, or provided and one or more of the goals outlined in the participant’s statement of goals and aspirations…
It is important to note that the NDIA does not need to be satisfied that the funding, or provision of a support, will specifically result in the achievement of a participant’s goals, objectives and aspirations. Rather, the support simply needs to assist (i.e. aid, support or contribute) the participant to achieve their goals. [emphasis added]
The goals of WKZQ set out in his NDIS plan that commenced on 24 August 2018 are:
…to develop age appropriate independence skills during daily routines such as meal times, dressing, bathing and toilet training …
…to develop his language and communication skills so he can; communicate his wants and needs effectively at home and community settings, interact socially with peers, follow group directions and participate in group activities.[71]
[71] Exhibit T-T24, page 475.
I now consider whether the supports requested by WKZQ at paragraph 20 and the supports proposed by the Agency at paragraph 21 will assist WKZQ to pursue his goals, objectives and aspirations.
The alternate models of supports are summarised as follows:
·WKZQ’s requested supports are for ABA therapy of 20 hours per week and four hours of clinical meetings and supervisor sessions per month; and speech therapy of four hours per week and annual speech assessment/report.
·The NDIA’s proposed supports are for capacity building supports provided through a keyworker model of 110 hours per year; six months transition from ABA therapy (assistance of 168 hours per year to deliver therapy in the natural environment and 20 hours per year to build capacity to deliver program supervision); core supports of 192 hours over 48 weeks; and travel costs.
I am satisfied that both of these models comprise supports of early childhood intervention despite these models containing differences in the number of hours and intensity of therapy, the type of therapy, the cost of therapy and the environment in which the therapy is provided.
The academic research before the Tribunal, as set out at paragraphs 48 to 54, shows that early intervention programs are beneficial for children diagnosed with autism spectrum disorder. This view is further outlined in the ECI Guidelines, which states that “specific intervention for children with…autism spectrum disorder…leads to improvement in childhood development and skill development”.[72]
[72] Early Childhood Intervention Australia, op cit, page 17.
Consistent with the Planning Operational Guideline, I am satisfied that the supports of 20 hours ABA therapy per week and four hours speech therapy per week as set out at paragraph 20, and the capacity building and therapy supports described at paragraph 21 are early childhood intervention supports that show a clear and direct link to the goals of WKZQ set out in his NDIS plan that commenced on 24 August 2018.
In particular, I am satisfied the supports of ABA therapy and speech therapy requested by WKZQ are to assist him achieve his goals of developing his language and communication skills, and learning skills to communicate effectively and participate socially. Indeed, the evidence of WKZQ’s mother, Ms “A”, his ABA therapy provider, Ms “F”, and his speech therapist, Ms “C”, are that these supports have already been effective in assisting WKZQ to pursue his goals, objectives and aspirations.
I am also satisfied that the intention of the keyworker model of supports, as proposed by the NDIA at paragraph 21, is to assist WKZQ to meet his goals and aspirations in his NDIS plan. The keyworker model is described in the ECI Guidelines as a “model of interaction” to provide supports for a child by “working with significant adults in the child’s life, imparting information, knowledge and skills to them by using coaching and consultation rather than only direct therapy with the child.”[73]
[73] Early Childhood Intervention Australia, op cit, pages 13-14.
Regarding the supports requested by the Applicant of ABA therapy program two hours clinical meetings per month and two hours supervisor sessions per month and the full speech assessment and summary report, I find that there is no detailed information before the Tribunal that shows a clear and direct link between these supports and the goals included in WKZQ’s statement of goals and aspirations in his NDIS plan that commenced on 24 August 2018. In particular, the Tribunal was provided no information about the purpose of these clinical meetings and supervisor sessions, or any evidence about how these supports will assist WKZQ to pursue his goals.
I therefore find the requirement in paragraph 34(1)(a) of the NDIS Act is met in respect of:
·The Applicant’s requested supports of:
oABA therapy – 20 hours per week for 12 months, consisting of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week and social skills group of two hours per week; and
ospeech therapy – four hours per week for 12 months.
·The Respondent’s proposed supports of:
ocapacity building supports for early childhood intervention through keyworker model – 110 hours; and
osix month transition from ABA therapy: therapy assistant level I support to deliver therapy in the natural environment – 168 hours; and
osix month transition from ABA therapy: capacity building supports for early childhood intervention to deliver program supervision – 20 hours; and
ocore supports – 192 hours; and
otravel in accordance with the 2018/2019 NDIS Price Guide.
Will the support assist WKZQ to undertake activities, so as to facilitate his social and economic participation – paragraph 34(1)(b)?
Part 10.4 of the Planning Operational Guideline states that this requirement for a support to assist the participant to undertake activities so as to facilitate his social and economic participation is consistent with the objects of the NDIS Act. It notes that:
Whether or not the funding, or provision of a support itself, will facilitate a participant’s social and economic participation is not the test. Rather, the NDIA must be satisfied that the funding, or provision of a support, will assist the participant to undertake activities which will facilitate their social and economic participation. [emphasis in original]
I now consider whether the supports requested by WKZQ at paragraph 20 and the supports proposed by the Agency at paragraph 21 will assist WKZQ to undertake activities that will facilitate his social and economic participation.
The alternate models of supports are summarised as follows:
·WKZQ’s requested supports are for ABA therapy of 20 hours per week and four hours of clinical meetings and supervisor sessions per month; and speech therapy of four hours per week and annual speech assessment/report.
·The NDIA’s proposed supports are for capacity building supports provided through a keyworker model of 110 hours per year; six months transition from ABA therapy (assistance of 168 hours per year to deliver therapy in the natural environment and 20 hours per year to build capacity to deliver program supervision); core supports of 192 hours over 48 weeks; and travel costs.
The purpose of WKZQ undertaking intensive early intervention therapy is to facilitate his attendance at his local preschool for two to three days per week in 2020 and his attendance at a mainstream primary school in 2021. WKZQ’s mother, Ms “A”, also outlined her priority for ABA therapy and speech therapy to assist and support WKZQ to integrate into mainstream community activities such as trips to outdoor parks, and attending birthday parties and sports lessons. I am satisfied that WKZQ’s future attendance at preschool and school, and his participation in community activities are consistent with the concept of social and economic participation.
As set out at paragraph 106, I am satisfied that both of these models of supports requested by WKZQ and proposed by the Agency are programs of early childhood intervention. I am also persuaded by the evidence of Associate Professor “D” that the purpose of early intervention is to provide the opportunity for a child to experience neuroplastic change in their preschool years; he noted that skills may be taught in early intervention programs that lead to the “generalisation and utilisation of these skills in everyday life”.[74]
[74] Exhibit R4, page 9.
The Planning Operational Guidelines set out that I must be satisfied that a support will assist WKZQ to undertake activities which will facilitate his social and economic participation.
I am satisfied the evidence before the Tribunal shows that the supports of ABA therapy and speech therapy requested by WKZQ will assist him to attend preschool in 2020 and primary school in 2021. Further, I am satisfied that the keyworker model of supports, as proposed by the NDIA at paragraph 21, is intended to facilitate WKZQ’s social and economic participation.
However, there is no detailed information before the Tribunal explaining how the ABA therapy program of two hours clinical meetings per month and two hours supervisor sessions per month and the full speech assessment and summary report will assist WKZQ to undertake activities that will facilitate his social and economic participation. I therefore find these supports do not meet the criteria of paragraph 34(1)(b) of the NDIS Act.
I am satisfied the requirement in paragraph 34(1)(b) of the NDIS Act is met for:
·The Applicant’s requested supports of:
oABA therapy – 20 hours per week for 12 months, consisting of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week and social skills group of two hours per week; and
ospeech therapy – four hours per week for 12 months.
·The Respondent’s proposed supports of:
ocapacity building supports for early childhood intervention through keyworker model – 110 hours; and
osix month transition from ABA therapy: therapy assistant level I support to deliver therapy in the natural environment – 168 hours; and
osix month transition from ABA therapy: capacity building supports for early childhood intervention to deliver program supervision – 20 hours; and
ocore supports – 192 hours; and
otravel in accordance with the 2018/2019 NDIS Price Guide.
Does the support represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support – paragraph 34(1)(c)?
Rule 3.1 of the Support Rules sets out the matters to be considered 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 matters relevant to this application are:
(a)whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
(b)whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long‑term benefit to, the participant;
(c)whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
(d)…
(e)whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;
(f)whether the support will increase the 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). [emphasis added][75]
[75] I note that paragraph (d) is not relevant to this application because it refers to supports that involve the provision of equipment or modifications.
The Planning Operational Guideline at part 10.5 further notes that the “NDIA is considerate of the fact that funding supports that do not represent value for money has the potential to undermine the financial sustainability of the NDIS”.
I now consider whether the supports requested by WKZQ at paragraph 20 represent value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative supports proposed by the Agency at paragraph 21.
First, I make some general observations and findings about the alternate models of supports for WKZQ and then I consider whether or not each separate identified support meets the requirements of paragraph 34(1)(c).
At the outset, I believe it is pertinent to address the comment by Associate Professor “D” that it would be beneficial to gather evidence to inform an actuarial analysis of response to intervention. I agree with Associate Professor “D”: however, in this matter there was no actuarial analysis or evidence provided by the NDIA’s Scheme Actuary that could inform me about any assessment regarding either the value for money of a support or the impact on the financial sustainability on the NDIS when considering the supports requested by the Applicant or the supports proposed by the Agency.
Rule 3.1(a) of the Support Rules requires me to consider whether there are comparable supports that would achieve the same outcome at a substantially lower cost.
As I highlighted at paragraph 100, there are clear and significant differences between the supports requested by WKZQ at paragraph 20 and the supports proposed by the Agency at paragraph 21. In particular, the supports requested by WKZQ are characterised by:
·a higher number and intensity of therapy hours provided by a qualified therapist;
·the provision of ABA therapy and speech therapy;
·a higher cost with ABA therapy and speech therapy totalling $129,391 for 12 months;
·the current provision of therapies in a clinical setting; and
·empirical evidence that shows skills development for WKZQ.

In contrast, the supports proposed by the NDIA are characterised by:
·a lower number and intensity of therapy hours provided by a qualified therapist;
·a lower cost with the supports costing a total of $40,669.96 for 12 months;
·the building of capacity through a keyworker model;
·the transition away from ABA therapy over six months;
·the provision of supports in the natural environments of the home, preschool and community; and
·empirical evidence that describes the keyworker approach as a model of early intervention.
I find the evidence does not show that these alternate models of supports for WKZQ are “comparable” for the purposes of paragraph 34(1)(c) of the NDIS Act. Based on the differences outlined in paragraphs 128 and 129 above, I am not persuaded that the keyworker model proposed by the Agency at paragraph 21 that seeks to transition WKZQ from ABA therapy over six months is a genuine alternative to the 12 months program of intensive ABA therapy and speech therapy set out at paragraph 20.
Indeed, I cannot be satisfied that the supports proposed by the Agency at paragraph 21 would substantially improve the life stage outcomes for WKZQ, or be likely to reduce the cost of funding of supports for WKZQ in the long-term. This is because the evidence shows:
·autism is a highly variable condition and, as no two children are the same, interventions must be adaptable: see Roberts and Williams;
·children with autism spectrum disorder benefit from early intervention behaviour therapy of 20 hours per week for at least one year: see Roberts and Williams; and
·WKZQ has been learning to express himself in simple conversation, developing social skills, understanding simple emotions, and improving his fine motor skills and independence since his participation in intensive ABA therapy and speech therapy: see evidence of Ms “A”, Ms “E”, Ms “F” and Ms “C”.
In comparing the supports requested by WKZQ at paragraph 20 and the supports proposed by the NDIA at paragraph 21, it is relevant to address the issue about the environment in which WKZQ should participate in ABA therapy and speech therapy.
In oral submissions to the Tribunal, counsel for the NDIA contended that WKZQ should participate in therapy “provided in naturalised settings and incorporated into daily routines”, and the “B” centre and Ms “C”’s clinic was not a “natural environment”.[76] Counsel for the Applicant refuted this contention and submitted that the circumstances of WKZQ and FRCT supported the decision to provide intensive early intervention treatment to them in a clinical setting.
[76] Oral submissions by Counsel for the NDIA on 17 April 2019.
WKZQ’s parents, Ms “A” and Mr “A”, have made the decision for WKZQ to participate in ABA therapy and speech therapy in a clinic setting for the following reasons:
·the challenging behaviours of WKZQ and FRCT, and consequently, the reduced benefits when they participate in therapy sessions together;
·the effect of WKZQ and FRCT’s challenging behaviours in the home on their younger sister;
·the lack of ABA therapy providers in outer south-west Sydney; and
·the continuing participation of WKZQ and FRCT in the community through preschool, swimming lessons and/or Sunday school.
I am satisfied the evidence shows there are very clear and compelling reasons about why WKZQ is participating in ABA therapy and speech therapy in a clinic setting at this point in time. I emphasise that this decision is for a point in time because the evidence showed this approach has a particular purpose to develop WKZQ’s skills to a level that will then assist him to engage in appropriate behaviour in his home and preschool, and eventually assist him to participate in a mainstream school in 2021. I also have regard to the evidence of Associate Professor “D”, as outlined at paragraph 58, that “discrete skills may be most successfully taught in…a clinical setting” as a step towards generalising these skills in everyday life.[77]
[77] Exhibit R4, page 9.
Counsel for the NDIA provided submissions that acknowledged the Agency’s proposed supports provided through a keyworker model were not “like for like” with the supports requested by WKZQ; however, she identified that the statutory criteria required looking at “the benefits achieved by the support in issue”.[78] I now consider whether each support meets the requirements of paragraph 34(1)(c).
[78] Respondent’s oral submissions on 17 April 2019.
ABA therapy – 18 hours per week
WKZQ has requested support of ABA therapy for 18 hours per week, which consists of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week. The cost of this support is $1,350 per week x 52 weeks = $70,200 for 12 months.
There is substantial evidence before the Tribunal from WKZQ’s mother, Ms “A”, and the providers of ABA therapy to WKZQ, Ms “E” and Ms “F”, that WKZQ has benefitted from participating in ABA therapy since March 2018.
Ms “A” gave evidence that she has observed WKZQ learning to express himself in simple conversation, developing social skills, understanding simple emotions, and improving his fine motor skills and independence.
Comprehensive assessments undertaken by WKZQ’s ABA therapists in December 2018 and April 2019 shows WKZQ’s language and communication skills, and his social skills and social behaviour are progressing. I particularly refer to the evidence of Ms “F” that shows baseline and ongoing assessment of WKZQ’s skills provides the basis for setting WKZQ’s goals in his ABA therapy.
I note there was some concern outlined by Ms “G” and Ms “H” that the ABA therapy provided to WKZQ was working on his ability to read single words, which they opined was above his needs and abilities. In my view, this concern was dispelled by the evidence of Ms “F”, which showed that two skill areas that were age appropriate for WKZQ were reading and maths, and consequently, Ms “F” was seeking to build on these skill areas of strength for WKZQ.
The intensity (hours per week) of ABA therapy for WKZQ is also supported by the academic research that suggests children with autism spectrum disorder benefit from early behavioural intervention of 20 hours per week for at least one year: see Roberts and Williams. As described by Associate Professor “D”, the purpose of this approach is that there is an initial high level of intensity (and cost) in behavioural intervention to create neuroplastic changes while a child is young.
The Agency submitted that the evidence about WKZQ did not demonstrate whether there were commensurate changes in the rate of WKZQ’s development when the intensity of his participation in ABA therapy increased from nine hours per week to 18 hours per week in August 2018. Based on the evidence before the Tribunal about the age and development of WKZQ, and his capacity for neuroplastic change in his preschool years, it is not possible for me to make a specific finding about this issue. However, I accept that the evidence of Ms “F” was credible and explained a clear and logical methodology of assessing WKZQ’s skills that then guides his future goals, and these goals are the focus of his ABA therapy sessions. Ms “F” gave detailed evidence about the context of 18 hours ABA therapy per week and the requested balance of 1:1 and 1:2 therapy sessions. She confirmed that the recommended 20 hours of ABA therapy is based on best practice guidelines.
I am therefore satisfied that the support of ABA therapy of 18 hours per week consisting of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week and costing $70,200 for 12 months meets the requirements of paragraph 34(1)(c) of the NDIS Act.
ABA therapy social skills group – two hours per week
WKZQ requested support of ABA therapy social skills group for two hours per week at a cost of $220 per week x 52 weeks = $11,440 per year.
Minimal evidence was provided to the Tribunal about the purpose of the ABA therapy social skills group and how it would benefit the skills development of WKZQ. Relevant to my consideration about whether this support represents value for money, neither the ABA therapist, Ms “F” nor the Applicant provided any explanation about why this ABA social skills group is costed at a higher hourly rate than ABA therapy provided to WKZQ on the basis of a 1:1 or 1:2 setting.
I also note that WKZQ is currently attending preschool one day a week, which provides him with a comparable opportunity to develop his social skills.
I find there is no evidence that the ABA therapy social skills group would provide WKZQ with opportunities to develop his social skills that are not already provided to him either during his 18 hours of ABA therapy or his day at preschool each week.
I therefore find this support does not represent value for money, relative to any benefits achieved and the costs of alternative support through preschool, and should not be funded by the NDIS.
I am not satisfied that the support of ABA therapy social skills group for two hours per week at a cost of $11,440 for 12 months meets the requirements of paragraph 34(1)(c) of the NDIS Act.
ABA therapy program: clinical meeting – two hours per month, and supervisor sessions – two hours per month
WKZQ’s ABA therapy program included funding for clinical meetings for two hours per month at a cost of $5,760 for 12 months and supervisor sessions for two hours per month at a cost of $4,368 for 12 months.
The combined cost of these meetings/sessions is $10,128 per year. However, neither Ms “A” nor the ABA therapist, Ms “F” provided detailed information about the purpose of these clinical meetings and supervisor sessions, evidence about the benefits of these meetings to WKZQ, or any financial explanation for the significant cost of these requested supports.
While I accept regular communication between Ms and Mr “A” and WKZQ’s ABA therapists enables clear communication between WKZQ’s parents and his ABA therapists, Ms “A”’s evidence to the Tribunal was that communication occurs via email, WhatsApp messaging and face-to-face meetings. However, this does not explain the ABA therapy program requested amount of $10,128.
I am not satisfied that the support of ABA therapy program clinical meetings for two hours per month and supervisor sessions for two hours per month at a combined cost of $10,128 for 12 months meets the requirements of paragraph 34(1)(c) of the NDIS Act.
Speech therapy – four hours per week
WKZQ requested four hours of speech therapy per week at a cost of $37,232 for 12 months.
The evidence of speech therapist, Ms “C”, is that WKZQ participated in an average of 1.25 hours speech therapy from August 2018 to March 2019: he acquired new skills in receptive language, expressive language, speech clarity, social skills and behaviour management.
Ms “C” also told the Tribunal that WKZQ and FRCT increased their participation in speech therapy to four hours per week from March 2019, which showed “amazing” results in their social skills with each other, and their participation in games and age appropriate toys.
An obvious difficulty with the evidence before the Tribunal is that it is not clear the extent to which WKZQ’s development and skills acquisition is attributable to his participation in ABA therapy and the extent to which it can be attributed to his participation in speech therapy.
WKZQ’s dual participation in both ABA therapy and speech therapy was discussed at the hearing. Associate Professor “D” told the Tribunal that the differentiation between ABA therapy and speech therapy for WKZQ was “odd” given language was a challenge. Ms “C” outlined her view that ABA and speech therapies are complementary as they “work together” to target behaviour management, language skills and social skills.[79]
[79] Exhibit A3, page 12.
In considering these opinions, I am satisfied that both ABA therapy and speech therapy address WKZQ’s areas of skills deficiencies, particularly in relation to his language and social skills.
I make the following findings based on the evidence.
First, WKZQ’s skills in receptive language, expressive language, speech clarity, social skills and behaviour management have developed from his participation in speech therapy. I find that language has been identified as a skills deficit area for WKZQ and speech therapy is key to addressing this deficit.
Second, there is no empirical evidence to support Ms “C”’s opinion that the increase in speech therapy for WKZQ from 1.25 hours to four hours a week had “amazing” results.
Third, outcomes from increasing WKZQ’s speech therapy to four hours per week were described by Ms “C” as developments in his social skills. These outcomes could also be attributed to the intensity of WKZQ’s participation in ABA therapy.
And fourth, the evidence suggests there is an overlap of focus skills between the ABA therapy and speech therapy. Notably, however, the cost of speech therapy is substantially higher than the cost of ABA therapy: ABA therapy averages a cost of $75 per hour compared to the cost of speech therapy of $179 per hour.
Weighing all the evidence, I am satisfied that the NDIS fund the support of two hours speech therapy per week for WKZQ at a cost of $18,616 for 12 months. I find this support meets the requirements of paragraph 34(1)(c) of the NDIS Act.
Full speech assessment and summary report
WKZQ requested the NDIS fund an annual full speech assessment and summary report at a cost of $390. There is no explanation in any evidence before the Tribunal about the purpose or benefit of this speech assessment and summary report.
I am not satisfied that the support of full speech assessment and summary report at a cost of $390 meets the requirements of paragraph 34(1)(c) of the NDIS Act.
Keyworker model
For completeness, I consider the NDIA’s proposal at paragraph 21 to fund therapy for WKZQ through a keyworker model over a period of 12 months in relation to the requirements of paragraph 34(1)(c) of the NDIS Act.
The evidence suggests the following problems with applying the keyworker model as proposed by the Agency to the particular circumstances of WKZQ.
First, the keyworker model does not support the provision of ABA therapy, which is the preferred therapy sought by Ms and Mr “A” for WKZQ. Somewhat curiously, the Agency’s proposal at paragraph 21 specifically funds supports for WKZQ to transition from ABA therapy over six months. I note that there was no explanation provided to the Tribunal about why the Agency did not support the continuation of ABA therapy for WKZQ, despite ABA therapy being funded in WKZQ’s NDIS plan that commenced on 24 August 2018.
I find that, given Ms and Mr “A”’s clear wish for WKZQ to continue with ABA therapy, the proposal by the Agency to transition WKZQ from ABA therapy is completely inconsistent with the objects and general principles of the NDIS Act, which reinforce the exercise of choice in the planning and delivery of supports, and acknowledge the role of families in this process. This approach is also inconsistent with section 31 of the NDIS Act that outlines principles relating to participants’ plans including respecting and strengthening the capacity of families to support participants who are children, and enabling participants to exercise control and maximise choice and independence.
I also find that the Agency’s proposal to transition WKZQ from ABA therapy through a keyworker model is not consistent with the empirical evidence and ECI Guidelines. As set out clearly in the evidence of Professors Roberts and Williams at paragraph 50, parents of children with autism should be supported and early intervention programs should take into account preferences of the child’s family. The ECI Guidelines also recognise the family’s expertise about their child’s needs.
Second, it appears that a premise underpinning the Agency’s proposal at paragraph 21 is that the keyworker model will transition WKZQ from ABA therapy and Ms “A” will be able to provide “therapy hours” to WKZQ and FRCT in their home and in the community. This premise ignores Ms “A”’s detailed evidence to the Tribunal about situations in the community and at home where she already routinely practices and reinforces positive behaviour and language skills with WKZQ.
Third, the keyworker model does not address the logistical problem identified by Ms “A” about the lack of ABA therapists and speech therapists in the area of outer south-west Sydney where WKZQ lives. Ms “A” gave extensive and credible evidence about her attempts to find suitable ABA and speech therapists for WKZQ and FRCT, and described most ABA providers being at least one hour from their home.
Fourth, the benefit of the keyworker model identified by the NDIA about the role of the keyworker to act as a conduit between parents and therapy providers is not an issue of concern for WKZQ’s parents. Rather, the evidence provided by WKZQ’s mother, Ms “A”, and WKZQ’s ABA and speech therapy providers is that they constantly and regularly communicate via email, WhatsApp and face-to-face discussions.
Finally, the proposal to decrease WKZQ’s participation in ABA therapy is counterintuitive to the evidence that shows the program is having a proven beneficial effect on WKZQ’s skills development and his behaviour.
I am satisfied there is no evidence before the Tribunal to support a finding that the keyworker model proposed by the Agency meets the requirements of paragraph 34(1)(c) of the NDIS Act.
Will the support be, or likely to be, effective and beneficial having regard to current good practice – paragraph 34(1)(d)?
Rules 3.2 and 3.3 of the Support Rules state:
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.
Extensive evidence from published and refereed literature, and expert opinion was provided to the Tribunal about best practice for early intervention for children diagnosed with autism spectrum disorder. Based on this evidence, I make the following findings about autism spectrum disorder and early childhood intervention:
·autism spectrum disorder is a highly variable condition but all children diagnosed with autism have difficulties with social communication and restricted or repetitive behaviours: Professors Roberts and Williams;
·early intervention of behavioural therapy, which includes intensive ABA therapy, is effective in establishing neuroplastic changes in children diagnosed with autism: Associate Professor “D”;
·the recommended number of hours of early intervention for a child with autism is 15-25 hours treatment per week, with a “midpoint” of 20 hours early intervention treatment per week, for at least 12 months: Professors Roberts and Williams; and
·no two children with autism are the same, so early intervention needs to adapt to suit each child’s skills, environment and parent’s priorities: Professors Roberts and Williams.
I also find the ECI Guidelines describe best practice delivery of early intervention for a child diagnosed with autism spectrum disorder:
·recognises the central role of the child’s parents, family and their preferred outcomes;
·ensures a collaborative approach between the child’s family and professional therapists; and
·provides therapy in natural environments such as the home, community or childcare/preschool that is supported by research and sound clinical reasoning.

I now consider whether the supports requested by WKZQ at paragraph 20 and the supports proposed by the Agency at paragraph 21 will be or are likely to be effective and beneficial to WKZQ, having regard to current good practice.
I am satisfied that the findings at paragraphs 144 and 166 support the provision of early intervention treatment for WKZQ of 20 hours per week for at least 12 months.
Best practice for early intervention as outlined in the ECI Guidelines both recognises the central role of the child’s parents and their preferred outcomes and provides for therapy to occur in natural environments such as the home, community or preschool. Clearly, these Guidelines show an inherent tension between the parents of WKZQ wanting his ABA therapy and speech therapy to be provided in a clinical setting and best practice that prefers therapy to be provided in natural environments.
As I have set out in paragraphs 134 to 135 and 169 to 178 above, there are clear and compelling reasons that explain why WKZQ is currently participating in ABA therapy and speech therapy in a clinical setting. For these reasons, I am satisfied that the supports of ABA therapy and speech therapy for WKZQ are consistent with best practice guidelines regarding early intervention for children with autism spectrum disorder. I further note that this finding is consistent with the objects and general principles outlined in sections 3 and 4 of the NDIS Act, affirming that participants in the NDIS should be supported to exercise choice in the planning and delivery of their supports.
I am satisfied that the following supports meet the requirement in paragraph 34(1)(d) of the NDIS Act:
·ABA therapy – 18 hours per week for 12 months, consisting of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week; and
·speech therapy – two hours per week for 12 months.
Does the funding take account of what it is reasonable to expect families, carers, informal networks and the community to provide – paragraph 34(1)(e)?
The Support Rules at rule 3.4 outlines the following:
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
(a) for a participant who is a child:
(i) that it is normal for parents to provide substantial care and support for children; and
(ii) whether, because of the child’s disability, the child’s care needs are substantially greater than those of other children of a similar age; and
(iii) the extent of any risks to the wellbeing of the participant’s family members or carer or carers; and
(iv) whether the funding or provision of the support for a family would improve the child’s capacity or future capacity, or would reduce any risk to the child’s wellbeing;
…
(c) for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
The circumstances of WKZQ and his immediate family were not disputed by the Agency.
In relation to the matters set out at rule 3.4 of the Support Rules, it is clear the circumstances of WKZQ’s family have underpinned decisions made by Ms and Mr “A” about WKZQ. The circumstances of Ms “A” are that, from Monday to Friday, she is effectively a single parent to three children under four years old, including twins with autism spectrum disorder, because Mr “A”’s employment is currently based on the mid-north coast of NSW. Ms and Mr “A” have no benefit of assistance from extended family or informal networks.
I want to acknowledge the extraordinary role of Ms “A” in the lives of her children and family. She is a devoted mother seeking to do the best possible for her three children. Ms “A” was both credible and articulate in her evidence to the Tribunal: her evidence was detailed, emotional and compassionate as she described the challenging behaviours of her sons; her process of undertaking extensive research to find appropriate early intervention treatment and therapy providers; and her engagement with WKZQ and FRCT’s therapists so she can practice therapy exercises at home or play language games with her sons while driving in the car.
In my view, it is also relevant to note that Ms “A” has placed her own professional legal career on hold to support WKZQ and FRCT, and their younger sister. This situation has clearly caused her emotional and personal stress, as well as adding to her and Mr “A”’s financial stress. I note that, where possible, Ms “A” is also undertaking casual employment as an investigator.
I am satisfied that funding WKZQ to participate in 18 hours ABA therapy per week and two hours of speech therapy per week for 12 months takes account of what is reasonable to expect his family to provide.
I find the requirement in paragraph 34(1)(e) of the NDIS Act is met for the following supports:
·ABA therapy – 18 hours per week for 12 months, consisting of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week; and
·speech therapy – two hours per week for 12 months.
Is the support appropriately funded through the NDIS – paragraph 34(1)(f)?
Rule 3.5 of the Support Rules outlines that the CEO (and the Tribunal) must consider whether the supports are “most appropriately funded or provided through the NDIS, rather than through other service systems”, including early childhood development.
Schedule 1 of the Support Rules state under the heading of early childhood development that:
7.8 The NDIS will be responsible for personalised supports, specific to a child’s disability (or developmental delay), which are additional to the needs of children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.
7.9 The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:
(a) specifically targeted at enhancing a child’s functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and
(b) likely to reduce the child’s future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.
I am satisfied that the supports of 18 hours ABA therapy per week and two hours of speech therapy per week for 12 months is consistent with rule 3.5 and schedule 1 of the Support Rules.
I further note counsel for the NDIA provided no submissions that these supports should not be funded through the NDIS.
I am satisfied the requirement of paragraph 34(1)(f) of the NDIS Act is met for the following supports:
·ABA therapy – 18 hours per week for 12 months, consisting of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week; and
·speech therapy – two hours per week for 12 months.
CONCLUSION
For the reasons set out above, I am satisfied that the following supports for WKZQ meet the requirements of reasonable and necessary supports as defined in paragraphs 34(1)(a)–(e) of the NDIS Act:
·18 hours of ABA therapy per week paid on the basis of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times per week: cost $70,200 for 12 months; and
·two hours of speech therapy per week: cost $18,616 for 12 months.
DECISION
The Tribunal decides that:
·the reviewable decision made by the NDIA on 22 November 2018 is set aside; and
·the matter is remitted to the NDIA with the direction that the following will be funded as reasonable and necessary supports for WKZQ in accordance with subsection 34(1) of the NDIS Act:
o18 hours of ABA therapy per week paid on the basis of two hours senior 1:1 ABA therapy and four hours junior 1:2 ABA therapy per day x three times a week: amount of $70,200 to be used flexibly by WKZQ over a period of 12 months; and
otwo hours of speech therapy per week: amount of $18,616 to be used flexibly by WKZQ over a period of 12 months.

I certify that the preceding 200 (two hundred) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..............................[SGD]..........................................
Associate
Dated: 24 June 2019

Date(s) of hearing: 11, 12 and 17 April 2019

Counsel for the Applicant: T Liu, Barrister (11, 12 and 17 April 2019)

Solicitors for the Applicant:
R Jones, Legal Aid New South Wales (11 and 12 April 2019)

D Brown, Legal Aid New South Wales (17 April 2019)

Counsel for the Respondent:
S Maharaj QC, Barrister (11 April 2019)

K Foley, Barrister (12 and 17 April 2019)

Solicitors for the Respondent: M Donald, Sparke Helmore (11, 12 and 17 April 2019)

[2019] AATA 1480

24 June 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	11, 12 and 17 April 2019
Counsel for the Applicant:	T Liu, Barrister (11, 12 and 17 April 2019)
Solicitors for the Applicant:	R Jones, Legal Aid New South Wales (11 and 12 April 2019) D Brown, Legal Aid New South Wales (17 April 2019)
Counsel for the Respondent:	S Maharaj QC, Barrister (11 April 2019) K Foley, Barrister (12 and 17 April 2019)
Solicitors for the Respondent:	M Donald, Sparke Helmore (11, 12 and 17 April 2019)