YGBW and Chief Executive Officer of the National Disability Insurance Agency (NDIS)

[2025] ARTA 1054

YGBW and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2025] ARTA 1054 (21 July 2025)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2023/9058

Re:  YGBW

APPLICANT

And  Chief Executive Officer of the National Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member J Collins

Date:21 July 2025

Place:Brisbane

DECISION

Pursuant to section 105 (c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:

1.    Within 14 days of this decision YGBW’s statement of participant supports specifies the following supports as reasonable and necessary:

·24 hours per day of high intensity support worker assistance;

·8 hours per day of health supports provided by a registered nurse;

·164 hours of speech therapy;

·100 hours of Level 3, specialist support coordination.

2.    The date by which the Agency must reassess YGBW’s plan is to be 12 months after the date on which the supports in (1) above are included in YGBW’s statement of participant supports.

3.    All other supports in YGBW’s existing statement of participant supports are to be replicated pro-rata from the date of this decision until the reassessment date.

4.    That YGBW’s plan include the notation that YGBW’s Level 3, specialist support coordination funding as referred to in (1) may be used to also fund Level 2 coordination supports.

5. YGBW’s plan is to be plan managed pursuant to section 42(2)(b) of the NDIS Act.

................[SGD].................

Senior Member J Collins

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME – cerebral palsy – global developmental delay – epilepsy – visual impairment – hearing impairment – chronic lung disease – severe dysphasia management – airway and respiratory management – enteral feeding and management – reasonable and necessary supports – high intensity support worker – high intensity daily personal activities – registered nursing support – high intensity support worker – delegated model of care – anat baniel therapy – remedial massage – travel insurance premium – support coordination - trexo robotic system – rifton pacer – short term accommodation – culturally diverse – ability to use supports overseas – grace period – consideration of section 34 National Disability Insurance Scheme Act 2013 (Cth)) – decision set aside and remitted to the Respondent

Legislation

Administrative Review Tribunal Act 2024 (Cth) s105
National Disability Insurance Scheme Act 2013 (Cth) s34, s35
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’)

National Disability Insurance Scheme (Supports for Participants) Rules - 1 July 2013, (‘Supports Rules’) National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018
National Disability Insurance Scheme (Plan Management) Rules 2013

Cases

G v Minister for Immigration and Border Protection [2018] FCA 1229
McGarrigle v National Disability Insurance Agency [2017] FCA 308
National Disability Insurance Agency v WRMF [2020] FCAFC 79
G v Minister for Home Affairs [2019] FCAFC 79
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60
Beezley v Repatriation Commission (2015) 150 ALD 11

Secondary Materials

NDIS – Operational Guidelines - Reasonable and necessary supports
NDIS - Operational Guidelines - Short Term Accommodation or Respite

NDIS - (Quality Indicators for NDIS Practice Standards) Guidelines 2018

REASONS FOR THE DECISION

1. YGBW is a 4-year-old child and has been a participant of the National Disability Insurance Scheme (‘the scheme’) since 2003.[1] Through her parents she seeks an increase in the funding of her supports.

   [1] A1.

2. The issue before the Tribunal is whether the supports sought by YGBW are ‘reasonable and necessary’ supports pursuant to section 34 of the National Disability Insurance Scheme Act 2013 (‘NDIS Act’) and should therefore be included in YGBW’s statement of participant supports (‘SOPS’) made pursuant to the scheme.

BACKGROUND

1. Following becoming a participant in the scheme the Chief Executive Officer of the National Disability Insurance Agency (the ‘Agency’) approved a participant’s plan (the ‘plan’) for YGBW. This plan included a SOPS.

2. On 19 October 2023 YGBW requested an internal review of her SOPS in order to seek further supports in relation to her impairments.[2]

   [2] T3.

3. On 1 December 2023 the Agency affirmed its original decision to refuse funding for these additional supports (‘the decision under review’). [3]

   [3] T2.

4. YGBW subsequently applied to the Administrative Appeals Tribunal (‘AAT’) for a review of the decision under review on 1 December 2023.[4]

   [4] T1.

5. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

6. YGBW’s plan has since that time been reviewed. At the time of the hearing YGBW’s plan and SOPS were for the period 14 June 2024 to 14 June 2025.[5]

   [5] B2.

7. At the hearing YGBW was not legally represented. Her mother M and father F advocated on her behalf. The Agency was represented by Mr Hartnett of Counsel, instructed by Maddox Lawyers.

ISSUES

10.  WGBW seeks the following supports:

• $16,415.49 of additional consumables;

• 24/7 support from a registered nurse;

• 24/7 support from a high intensity support worker;

• Short term accommodation which is ‘culturally diverse’;

• The inclusion of registered nursing supports during short term accommodation;

• Travel insurance premium;

• 160 hours per year for speech therapy;

• Anat Baniel method therapy – 160 hours;

• Remedial massage – 80 hours;

• Naturopathy;

• 100 hours of Level 3 support coordination which can be used for both level 2 and level 3;

• Trexo Robotic System and Rifton Pacer Walker; and

• The ability to utilise Core and Capacity Building supports both in Australia and overseas.

11. The Agency contends that these supports are not ‘reasonable and necessary’ supports for the purposes of s34(1) of the NDIS Act.

Concessions

12.  At the commencement of the hearing the Agency advised the Tribunal that certain concessions had been made.

13. In this regard, the Agency and YGBW have agreed that the following supports are ‘reasonable and necessary’ pursuant to s 34(1) of the NDIS Act and are to be included in her SOPS:

·     An additional $16,415.49 in consumables; and

·     160 hours per year for speech therapy.

14.  The request for the funding of naturopathy was also withdrawn.

15.  In relation to a request for 100 hours of Level 3 support coordination which can be used for both level 2 and level 3, the Agency proposed that notation be contained within YGBW’s SOPS approving the ability to use funding for support coordination flexibly, for either level 2 or level 3 support coordination.

Supports in Dispute

16.  For the purposes of this review the following supports remain in dispute:

·     24/7 support from a Registered Nurse.

·     24/7 support from a high intensity support worker.

·     Short term accommodation which is ‘culturally diverse’.

·     The inclusion of registered nursing supports during short term accommodation.

·     Travel insurance.

·     Anat Baniel method therapy – 160 hours;

·     remedial massage – 80 hours;

·     100 hours of Level 3 support coordination which can be used for both level 2 and level 3;

·     Trexo Robotic System and Rifton Pacer Walker; and

·     The ability to utilise Core and Capacity Building supports both in Australia and overseas.

THE LEGAL FRAMEWORK

National Disability Insurance Scheme Act 2013 (Cth)

17. Section 34 of the NDIS Act identifies what constitutes a ‘reasonable and necessary’ support under the scheme.

18.  This application was made to the Tribunal on 1 December 2023.[6] At that time section 34 of the NDIS Act provided as follows:

[6] T1.

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 NationalDisability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

(i)  as part of a universal service obligation; or

(ii)  in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.

(2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).

19.  On 3 October 2024 however, and prior to the completion of this review the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the ‘Amending Act’) commenced. The Amending Act made a range of amendments to the NDIS Act including amendments to section 34.

20. The amendments to section 34 of the NDIS Act will apply to this review.[7]

[7] Section 129, National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024.

21. Section 34 of the NDIS Act, as amended, provides 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:

(aa)  the support is necessary to address needs of the participant arising from an impairment in relation to which the participantmeets the disability requirements (see section   24) or the early intervention requirements (see section   25);

(a)  the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b)  the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c)  the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d)  the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e)  the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f)  the support is an NDIS support for the participant.

Note:  For the purposes of (aa):

(a)  the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve and

(b)  a participant's disability support needs arising from an impairment in relation to which the participantmeets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

(2)  The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs   (1)(aa) to (f). (Tribunal emphasis for amendments)

22. Section 34(1) is cumulative. Therefore, all the criteria must be met.

23. Section 34(1)(aa) of the NDIS Act as an amendment, imposes an additional requirement of the criteria. This additional requirement is the consideration of whether the support is necessary to address the needs of YGBW which arise from the impairment/s for which she met the disability requirements.

24. Section 34(1)(f) of the NDIS Act is a replacement of an ‘old provision’ with a ‘new provision’.

25. This new provision of section 34(1)(f) of the NDIS Act requires that the support be a ‘NDIS support’.

26. Section 10 of the NDIS Act provides a definition of what constitutes a ‘NDIS Support’ for the purposes of section 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act provides as follows:

Supports that are NDIS supports

(1)  Subject to subsections (4) and (9), a support is an NDIS support for a person who is a participant or prospective participant if the support is declared by National Disability Insurance Scheme rules made for the purposes of this subsection to be an NDIS support for :

(a)  participants or prospective participants generally; or
 (b)  a class of participants or prospective participants that includes the person.

Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
 (2)  Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (1), the Minister must be satisfied:

(a)  for rules to which paragraph (1)(a) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
 (b)  for rules to which paragraph (1)(b) applies--that the support is appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(3)  National Disability Insurance Scheme rules may declare a support for the purposes of subsection  (1) only if at least one of the following applies:

(a)  the declaration of the support implements Australia's obligations under:

(i)  the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006; or

(ii)  any other agreement with one or more other countries;

(b)  the declaration of the support enables the provision of sickness benefits.

Note:  For subparagraph (a)(i), the Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No.12 ([2008] ATS 12) and could in 2024 be viewed in the Australian Treaties Library on the website ( align="left">Supports that are not NDIS supports
 (4)  The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

(a)  participants or prospective participants generally; or
 (b)  a class of participants or prospective participants.

Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
 (5)  Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection   (4), the Minister must be satisfied:

(a)  for rules to which paragraph (4)(a) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants or prospective participants generally; or
 (b)  for rules to which paragraph (4)(b) applies--that the support is not appropriately funded or provided through the National Disability Insurance Scheme for participants, or prospective participants, in the relevant class.

(6)  The CEO may determine, in writing, that a support is taken to not be declared under subsection  (4) in relation to a participant if:

(a)  the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
 (b)  the support would, apart from subsection (4), be an NDIS support for the participant; and
 (c)  the participant applies to the CEO in accordance with subsection (7) for the determination; and
 (d)  the CEO is satisfied that:

(i)  the support would replace one or more other supports that are NDIS supports for the participant; and
 (ii)  the cost of the support is the same or lower than the total of the costs of the supports it would replace; and
(iii)  the support would provide the same or a better outcome for the participant than the supports it would replace; and
 (iv)  any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

Note 1:  A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901 .
Note 2:  The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003 ).
 (7)  An application under paragraph (6)(c) must:

(a)  be in the form (if any) approved by the CEO; and
 (b)  include any information, and be accompanied by any documents, required by the CEO; and
 (c)  be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

(8)  The National Disability Insurance Scheme rules may make provision for determining any matter for the purposes of subsection (6), including by prescribing requirements with which the CEO must comply, methods or criteria that the CEO is to apply, or matters that the CEO may, must or must not take into account, in deciding whether to make a determination under that subsection.
(9)  A support is not an NDIS support for a participant or prospective participant if the support consists of the provision of:

(a)  sexual services; or
 (b)  alcohol; or
 (c)  drugs, the possession of which is a contravention of a law of the Commonwealth, a State or a Territory.

27. Section 34(2) provides that the NDIS rules may prescribe methods or criteria to be applied, or matters to which the CEO must have regard, in deciding whether a requested support satisfies the criteria under section 34(1) of the NDIS Act.

28. Section 35 of the NDIS Act provides for the making of rules in relation to prescribing reasonable and necessary supports or general supports that will be funded or provided under the scheme. The relevant rules in respect of this review are the:

• National Disability Insurance Scheme (Supports for Participants) Rules 2013 (‘Supports Rules’);

• National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (‘Transitional Rules’);

29.  Rules 3 and 5 of the Supports Rules relate specifically to subsections 34(1)(c) –(d) of the NDIS Act. Relevant to this review are the following rules:

Value for money

3.1In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

(a)   whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b)   whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(c)   whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d)   for supports that involve the provision of equipment or modifications:

(i)the comparative cost of purchasing or leasing the equipment or modifications; and

(ii)whether there are any expected changes in technology or the participant’s circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

(e)   whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f)    whether the support will increase the 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).

Effective and beneficial and current good practice

3.2In 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.

3.3In 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.

General criteria for supports

5.1A support will not be provided or funded under the NDIS if:

1.   (a)     it is likely to cause harm to the participant or pose a risk to others; or

2.   (b)     it is not related to the participant’s disability; or

3.   (c)     it duplicates other supports delivered under alternative funding through the NDIS; or

4.   (d)     it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant’s disability support needs.

5.2The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

5.   (a)     additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

6.   (b)     costs that are ancillary to another support that is funded or provided under the participant’s plan, and which the participant would not otherwise incur.

30. The Transitional Rules are also relevant to this review. Schedule 1 of the Transitional Rules identifies supports that are NDIS Supports, unless otherwise provided, for the purposes of s 10(1) of the NDIS Act. Schedule 2 of the Transitional Rules identifies supports that generally are not NDIS supports for the purposes of s 10(1) of the NDIS Act.

31.  In McGarrigle v National Disability Insurance Agency[8] at [43] Mortimer J (as Her Honour then was) made the following observations in respect of these rules:

[8] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (‘McGarrigle’).

The [Supports Rules] are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement…some policy decision-making about the nature and extent of supports to be provided or funded.

32.  The phrase ‘reasonable and necessary’ is not defined in the Act. It is a composite phrase and should be considered as such. In McGarrigle Mortimer J also stated as follows:[9]

[9] ibid at [91].

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”.

33.  The Full Court in National Disability Insurance Agency v WRMF[10] also considered the meaning of reasonable and necessary supports, and stated as follows [149]-[151]:

[10] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (‘WRMF’).

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006] HCA25; (2006) 227 CLR532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'.

…Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.

OPERATIONAL GUIDELINES

34.  The Agency issues Operational Guidelines in relation to what are considered ‘reasonable and necessary supports’ in a participant’s plan. There is no power conferred by the Act to make these Operational Guidelines, and they are issued in an exercise of executive power.[11] The Tribunal is therefore not bound by any policy set out in the Agency’s Operational Guidelines. However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[12] the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. Further guidance for the proposition that the Tribunal is not bound by policy is found in G v Minister for Immigration and Border Protection[13] where Mortimer J held:[14]

[11] G v Minister for Home Affairs [2019] FCAFC 79 at [18].

[12] [1979] AATA 179 (1979); 2 ALD 634.

[13] [2018] FCA 1229.

[14] Ibid at [171].

Justice or injustice is not found within a policy. It is found by looking at the overall circumstances of an individual’s case with the principal focus being on the purpose and context of the statutory power, not the executive policy framed to guide it.

35.  Accordingly, unless the Operational Guidelines are inconsistent with the provisions or objects of the legislation, they should be considered in a determination of what is a reasonable and necessary support for YGBW. The Guidelines relevant to this review are the:

·     Operational Guidelines - Reasonable and necessary supports.

·     Operational Guidelines – Short Term Accommodation or Respite dated 24 June 2022.

EVIDENCE

36.  I have considered all the written evidence filed with the Tribunal and provided in the joint bundle and subsequently filed material, the oral evidence provided at the hearing on 19, 20 and 21 February 2025, 31 March, 2 and 7 April and 30 May 2025 and the parties’ closing submissions. I will refer in my decision to some of the more salient aspects of the evidence. The fact however that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before the Tribunal into account in reaching my decision.

37.  In making my decision in respect of what supports should be included in YGBW’s SOPS I have undertaken a fact intensive exercise. This exercise includes as a consideration YGBW’s individual circumstances, impairments, and needs.

Evidence about YGBW

38.  YGBW resides with her parents and a younger sibling.

39.  The evidence indicates that YGBW has the following diagnoses: 

·     Global developmental delay;

·     Cerebral palsy at GMFCS Level 5;

·     Epilepsy;

·     visual impairment;

·     hearing impairment;

·     chronic lung disease;

·     dysphasia; and

·     Intellectual disability.[15]

[15] SFIC, D10.

40.  As a consequence of YGBW’s conditions she experiences the following symptoms and difficulties:

·     An inability to stand, sit, roll or walk independently;

·     can only ‘sit’ if propped up;

·     has minimal control of her neck;

·     is non-verbal;

·     has impaired vision and is considered legally blind;

·     has impaired hearing;

·     is incontinent and uses nappies to manage her continence;

·     requires anticonvulsant medication to manage her epilepsy;

·     is unable to undertake or assist others with his self-cares such as bathing, dressing, personal hygiene and toileting;

·     has difficulties maintaining her airway; and

·     has difficulties maintaining a safe saturated oxygen level and requires supplementary oxygen for 12- 16 hours each day.[16]

[16] M’s oral evidence.

41.  YGBW has a Percutaneous Endoscopic Jejunostomy (PEJ). This is a feeding tube inserted directly into the jejunum, a part of YGBW’s small intestine, through a ‘stoma’ which is an opening in her abdominal wall (the ‘PEJ tube’). YGBW receives her nutrition continuously through her PEJ tube.[17]

[17] Percutaneous Endoscopic Jejunostomy.

42.  YGBW also has Percutaneous Endoscopic Gastrostomy (PEG). This is another type of feeding tube which is inserted directly into YGBW’s stomach through the same opening in her abdomen wall (the ‘PEG tube’). YGBW receives her medication through her PEG tube.

43.  The process of continuously feeding YGBW with ‘formula’, as her only nutrition, though her PEJ tube generally takes approximately 16 hours each day.[18]

[18] M’s oral evidence.

44.  YGBW is also connected to an oxygen saturation monitoring machine, 24 hours of each day. This is to continuously monitor her oxygen saturation levels where a ‘normal’ oxygen saturation level is greater than 94% O2.

45.  The goals included in YGBW’s plan are that her parents would like her to:

·     improve her brain plasticity and learn new physical and intellectual skills using Anat Baniel Method therapy and Robotic assistive technology as well as AT equipment to access different locations such as beach, pool, forest and snow;

·     be happy, calm, have fun and be confident with her family, peers and community and be able to participate in the community, celebrate holidays, beliefs, traditions, and events while getting her full nursing and support worker support both in Australia and overseas;

·     feel safe and supported with all daily self-care tasks such as, nutrition, meal, bath, incontinence, positioning, mobility, sleep times, massage and complex disability and medical needs while receiving high level care from chest physiotherapists, dietitian, registered nurses, support workers and a Multi-Disciplinary Team of therapists;

·     develop her vision, hearing, occupational therapy engagement and play times, so that she can confidently engage within her family, peers and community environments;

·      be able to swallow and chew functionally and consistently to help her protect her airway, keeping her safe while improving her wellbeing and independence in mealtimes;

·      improve her brain blood flow using hyperbaric oxygen therapy allowing her to develop and rehabilitate better as well as improving her health;

·     develop her communication using communication devices, software and different device mounting at home or in the community so she can be happy and form positive connections with her parents and people who are close to her.[19]

[19] B2.

46.  TGBW’s plan is self-managed.

47.  YGBW’s mother and father are her Plan nominees.

Evidence ‘M’.

48.  M is YGBW’s mother.

49.  M’s oral evidence in respect of YGBW can be summarised as follows:

• YGBW has complex needs and there are many ‘emergencies’ when caring for her;

• Support workers have been unable to care for YGBW and find caring for YGBW ‘scary’, ‘overwhelming’ and ‘risky’;
• Support workers’ ‘panic’ when caring for YGBW because her care needs are ‘complex’;
• Only a registered nurse is capable of managing YGBW’s care needs;
• Approximately 60% of persons who interview for a position as YGBW’s support worker decline the position following the interview. This is on the basis that her cares are ‘extremely complex’;
• Approximately 50% of the support workers who accept a position as YGBW’s support worker resign before completing their ‘training’. The feedback provided from these support workers is in words to the effect of ‘this is not for me’.
• Training of support workers is provided by either a registered nurse or YGBW’s parents, or in combination;
• Many of the support workers engaged to care for YGBW are university students, or living in Australia on a short-term basis and subject to travel visas which expire. For this reason, they only provide support for short periods of time;[20]

[20] Day 1 M’s cross examination.

• Historically support workers have been unable to ‘act quickly’ in respect of YGBW’s needs, as when is required. The following examples were provided by M:
• An inability to suction YGBW’s airway promptly and immediately after she coughs, in order to prevent choking from excess secretions. In this regard the necessary skill set requires the ability to undertake either oral suctioning of the mouth, nasal suctioning in the nose, or ‘deep suctioning’ down YGBW’s throat with a catheter;
• An inability to administer oxygen promptly and immediately when oxygen saturation levels fall suddenly and unpredictably;
• A failure to recognise a comprised oxygen saturation level; and
• An inability to monitor and report on YGBW’s bowel motions as an important indicator of her hydration and nutritional needs.

• In respect of the training provided to support workers M stated, ‘We teach them and they don’t understand’;
• The suctioning of YGBW is a two-person job. Understandably YGBW dislikes being suctioned. One person is required to hold YGBW in the correct position whilst a second person performs the suctioning;
• Suctioning is also complicated by YGBW’s hypotonia. This results in YGBW involuntarily ‘arching’ her back when being held and suctioned. On some occasions three people are required to assist;
• Aspiration into the lungs is a risk of deep suctioning and can lead to pneumonia. YGBW has aspirated in the past following suctioning and required hospitalisation due to pneumonia;
• On a ‘good day’ YGBW requires only oral and nasal suctioning;
• YGBW is also prone to vomiting due to an inability to digest oral intake. Vomiting also poses a risk of aspiration;
• YGBW’s oxygen saturation levels must be monitored twenty-four hours per day;
• Bathing YGBW is also a two-person job. This is because she must remain connected at all times to the oxygen monitoring equipment. One person is thus required to manage this equipment which remains attached to YGBW. The other person is required to bath YGBW. M explained that YGBW normally ‘de-saturates’ after a bath;
• Dressing YGBW is also a two-person job;
• YGBW receives her nutrition ‘continuously’ through her PEJ tube. YGBW’s PEJ tube requires continual ‘water flushes’, generally up to 20 water flushes per day. This provides hydration to YGBW and also ensures that her PEJ tube does not become blocked;
• YGBW’s is also prone to hyperventilation. This causes her oxygen saturations to fall;
• When YGBW leaves the home, she must take various pieces of equipment which include oxygen cylinders, suctioning equipment and a feeding pump;
• M and F are ‘burnt out’ caring for YGBW. M stated ‘We can’t live like this’;
• The family travelled to the United States of America (‘USA’) for five weeks in 2023 together with a support worker from Australia who provided support for the entire trip, including flight travel. A USA based registered nurse was also arranged to provide support for the duration of the trip;
• During the trip to the USA YGBW received Anat Baniel therapy. This therapy was suggested by one of YGBW’s treating physiotherapists;
• The family have also travelled South Africa with YGBW taking two nurses from Australia with them, one nurse for the day and one for the night.
• Other trips have included travel to Melbourne, Sydney, Gold Coast and Thailand.
• F is responsible for the financial management of YGBW’s plan.

50.  Under cross examination M was unable to explain or comment on the information contained in the breakdown schedule. In respect of M’s evidence, I am satisfied that M:

• Has a very basic understanding of YGBW’s plan;

• Relies on F to manage the plan and the ‘paperwork’.

• Accepts her husband’s assertions that the funding for YGBW is insufficient.

51.  This is not a criticism of M. M’s position is completely understandable in the context of a stressful family dynamic which include her responsibilities to both YGBW and another child who is only eighteen months of age. I do not consider it unusual in these circumstances that one parent is responsible for the financial management of their child’s plan.

52.  I am therefore satisfied that M knows little about the financial aspects of YGBW’s plan management including the allocation of funding from various categories. The Agency however helpfully prepared a schedule which detailed the following three categories:

• Funding allocated for the period 14 June 2024 to 14 June 2025;

• Funds spent as of 18 February 2025; and

• Remaining funds as of 18 February 2025 which were available for funding support for YGBW until 14 June 2025[21] (the ‘breakdown schedule’).

  [21] Exhibit 6.

Evidence of ‘F’.

53.  F is YGBW’s father.

54.  F’s oral evidence in respect of YGBW can be summarised as follows:

• She has very high care nursing needs;

• She has an extreme disability as a result of a hypoxic brain injury. She also has cerebral palsy dystonia, dysphasia, chronic lung disease and various other disabilities;

• She is unable to maintain her own airway which places her in many emergency situations during the day and the night;

• During these emergency situations she requires the intervention of a registered nurse. These interventions are relation are in relation to her respiratory function, the accumulation of secretions, fatigue, oxygen desaturations and hyperventilation;

• In his opinion YGBW cannot be left alone with a support worker;

• Leaving YGBW’s in the care of a support worker places her at risk of aspiration. The risk of aspiration thereafter places her at risk of a brain injury;

• F believes a parent should ‘parent’ their child rather than ‘nurse’ their child;

• F accepts there is some parental responsibility for YGBW’s care needs, but it is not reasonable that these parental responsibilities extend to the level of support YGBW’s requires in the context of given her extreme disabilities and high medical and disability needs:

• YGBW can experience a decline in her respiratory function any time during the day or night;

• F described YGBW’s care needs as being a ‘storm of complexity’;

• YGBW’s PEJ tube requires regular water flushes;

• YGBW has a vision impairment and hearing impairment;

• YGBW has dystonia and mixed muscle tone due to cerebral palsy;

• YGBW’s respiratory interventions require ‘deep suctioning’ at times;

• YGBW experiences regular seizures. During these seizures she requires oxygen and the administration of medication;

• At times YGBW requires additional positive air pressure which is provided using a CPAP machine;

• YGBW cannot stand, walk or sit;

• YGBW is non-verbal however does make some sounds. She cannot tell you ‘How she feels’.

• YGBW will often vomit. This places her at risk of pneumonia as a result of aspiration;

• Between January 2023 and March 2023 YGBW was hospitalised for approximately 48 days. This admission was on the basis that F and M were simply unable to care for her in the context of a disability needs;

• Between March 2023 and March 2024 YGBW had 24/7 nursing support which was funded under the scheme. During that time YGBW had no hospital admissions;

• F states that 24/7 nursing care is essential, life-saving and critical for YGBW;

• YGBW requires regular suctioning due to the buildup of secretions. When YGBW wakes in the morning she is particularly congested and requires immediate suctioning;

• YGBW regularly experiences a desaturation in her oxygen levels and is prone to hyperventilation;

• The interventions YGBW requires are a two-person job;

• Other tasks such as bathing YGBW are also a two-person job;

• The family have no informal supports;

• The proposal by the Agency of eight hours of support from a registered nurse is simply not enough.

Are the supports sought necessary to address the needs of YGBW arising from the impairment in relation to which she met the disability requirements? – subsection 34(1)(aa) of the NDIS Act

55. YGBW was granted access to the scheme on 15 March 2023 on the basis of meeting the disability requirements pursuant to section 24(1) of the NDIS Act. At that time YGBW met the disability requirements on the basis of the following diagnoses and conditions:

• Hypoxic brain injury;

• Cerebral palsy (Gross Motor Function Classification System (GMFSC) - Level 5); and

• Hearing loss

56.  The Agency acknowledges and accepts that YGBW also has the following co-morbidities:

• Global developmental delay

• Visual impairment;

• Chronic lung disease; and

• Dysphasia.[22]

  [22] A1 SFIC – para 3.

57.  The Agency accepts that YGBW has complex care and medical needs.[23]

[23] Respondents SFIC at [13].

58.  At the hearing the Agency advised the Tribunal that it accepts YGBW meets the disability requirements on the basis of having a disability due to physical, cognitive, neurological and sensory impairments arising from a hypoxic brain injury.[24] The Agency accepts that YGBW’s impairments affect her in the areas of communication, self-care, mobility and learning. The Agency contends that because YGBW is a young child it is not possible to assess her functional capacity in relation to self-management and social interaction.[25]

[24] Transcript Day 2 page 122 lines 4 – 6.

[25] Agency’s submission – Day 2 page 122 lines 10 – 12.

59. The notation in respect of s34(1)(aa) of the NDIS Act provides as follows:

Note:  For the purposes of paragraph (aa):

(a)  the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports;

60.  Based on the evidence I am satisfied that the Agency’s concession is reasonable and proper. I am satisfied that YGBW has a disability due to physical, cognitive, neurological and sensory impairments arising from a hypoxic brain injury. These impairments affect YGBW in the areas of communication, self-care, mobility and learning.

CONSUMABLES - AN ADDITIONAL $16,415.49.

61.  At the commencement of the hearing the parties confirmed that this support had been withdrawn and was no longer in dispute.[26]

[26] A3 page 61, Transcript Day 1 page 2 line 29- 31.

REGISTERED NURSING SUPPORT AND HIGH INTENSITY SUPPORT WORKER SUPPORT.

62.  YGBW seeks funding for support from a registered nurse, 24 hours per day, seven days per week. YGBW also seeks funding for support from a High Intensity Support Worker (HISW), 24 hours per day, seven days per week.

63.  Currently YGBW is funded for support from a registered nurse for 48 hours each year, comprised as follows:

• 24 hours per year from a registered nurse for YGBW’s individualised training support needs for disability related health support tasks (DRHS) as per a ‘delegated supervision of care’ model (‘DSOC’).

• 24 hours per year from a registered nurse for ongoing supervision support for HISW’s delivering DRHS tasks.[27]

  [27] Exhibit 3.

64.  YGBW is also funded for support for 22 hours per day for 1:1 from a HISW.[28]

[28] Exhibit 3.

Evidence of Ms Travlos

65.  Ms Vivienne Travlos, a respiratory physiotherapist with 26 years of experience. She provided a number of reports to the Tribunal[29] and also gave oral evidence at the hearing.

[29] C42, C43, C49, C50, C51, C77.

66.  Ms Travlos has been YGBW’s treating physiotherapist since January 2023. In that time, she has provided training to 4 registered nurses and 20 support workers.

67.  In her report dated 30 October 2024 Ms Travlos stated that YGBW’s,

‘Respiratory care involves a combination of physical activity, positioning and positive airway pressure to optimise ventilation, O2 to support respiration, manual and mechanical techniques to optimise airway clearance. Each technique is carefully adjusted based on YGBW’s physical and physiological responses, which can change quickly and frequently within minutes at a time.’[30]

[30] C77.

‘YGBW’s current respiratory care plan is designed to carefully respond to her needs when her oral secretion production, secretion overload and secretion consistency (think or thick) change unpredictably over the course of 24 hours impacting her clinical presentation.”[31]

[31] Ibid.

68.  Mr Travlos also provided the following opinion;

Until such time as YGBW’s medical presentation becomes more predictable and stable with interventions routinely rather than responsibly, it is my clinical opinion that this care be delivered by an appropriate health practitioner 24/7 such as registered nurse.
………………………………………………..

In my opinion, respiratory care plan tasks that can be delivered by a high intensity support worker are those that are routine and in the context of a medically stable patient. This includes routine delivery of nebulisation, positioning and airway clearance adjuncts as preventative strategies to maintain respiratory health.

…………………………………

YGBW’s respiratory care plan is currently not routine, but in response to her unpredictable and changing medical presentation. That is, her oral secretion load, oxygenation and breathing difficulties are variable across the day and within the space of a few minutes. Her O2 levels may drop below 94% at multiple time across minutes for a number of reasons. (Emphasis of Ms Travlos)

69.  The NDIS Practice Standards: skills descriptors (NDISSD)[32] provide supplementary guidance for NDIS providers and workers supporting participants with high intensity daily personal activities (HIDPA). In particular the describe the skill and knowledge that NDIS providers should ensure that their workers have when supporting participants who rely on HIDPA.  Part of this skill and knowledge in relation to ventilator support is stated to include the following:

[32] Exhibit 12.

“Identifies and immediately informs an appropriate health practitioner of risk indicators such as fatigue, anxiety or breathing difficulties;
Identifies and takes immediate action in response to blocked or occluded airways, signs of choking or difficulty swallowing including suctioning and involving the appropriate health practitioner.”[33]

[33] Exhibit 12 page 24.

70.  In respect of these NDISSD Ms Travlos states,

While it is reasonable for a support worker to identify her changing status, the process to immediately inform an appropriate health practitioner (depending on if they are immediately available) and gain appropriate guidance may take more than a few minutes’ time. As YGBW’s status changes across the day and within minutes, it is not reasonable for the support worker to have to call the health practitioner and await their response at unpredictable, at times frequent intervals. Thus, in the absence of an appropriate, available health practitioner, immediate decision making as to the appropriate response as documented in the care plan falls back onto YGBW’’s parents.

In the future, with appropriate multidisciplinary support, it is hoped that YGBW’s medical status may stabilise, settle into a routine and become more predictable. Until such time, it is not reasonable to expect a support worker to consistently choose tasks in the care plan accurate for YGBW’s presentation at a given moment.

71.  Ms Travlos also stated,

“Decision making around delivery of O2 concentration (0.5 – 10L/min), positioning, use of airway clearance adjuncts and deep suction with parents’ approval must currently be provided by a registered nurse based on their accurate assessment of YGBW’s presentation at any given time.”

……………………………

YGBW’s O2 requirements are variable within minutes for many different reasons which may overlap at the same time. Factors influencing her measured O2 levels can be simple or complex. Simple factors include an unreliable trace from her probe. Complex factors include her head position, fatigue, secretion overload, ability to swallow following a cough, work of breathing, chest wall excursion, abdominal distention and upper and lower airway patency. Assessment is made through careful observation of these factors, supplemented with lung auscultation. In a hospital these observations are further complimented with medical imaging such as X-Ray which is not available in the home situation. Home based assessment of YGBW’s complex presentation requires a skilled and experienced health practitioner.

72.  Ms Travlos’ report concluded with the following statements,

YGBW’s respiratory care is currently not predictable nor routine, but responsive based on her presentation. YGBW’s respiratory symptoms of secretion load, oxygenation and work of breathing are variable, and her spontaneous cough and swallow are inconsistent. She is at risk of the sequalae of aspiration and secretion retention, being respiratory tract infection and medical deterioration.
It is my professional opinion that the request for 24/7 RN support is reasonable until YGBW achieves stability in her secretion management and respiratory status as assessed by her broader medical team.

73.  Ms Travlos also provided oral evidence at the hearing which can be summarised as follows:

• YGBW lives with cerebral palsy - GMFCS – level 5;

• Gross Motor Function Classification System (GMFCS) is a classification system that describes YGBW’s functional ability;

• The classification of GMFCS – level  5 means that YGBW has no ability to walk or sit independently. YGBW’s head control is also only ‘momentary’;

• Ms Travlos explained that YGBW:

  oHas oral and swallow muscle dysfunction. This makes it hard for her to manage her saliva, which collects at the back of her throat;

  oHas an inconsistent ability to swallow and cough which must be managed by regular oral clearance through positioning and oral suctioning;

  oStruggles to sustain deep breathing, especially when tired or unwell;

  oIs at risk of aspiration, chest infections and long-term lung tissue damage.

• YGBW’s respiratory function is also severely impacted upon by her cerebral palsy, dystonia and limited head control;

• YGBW is at high risk of aspiration due to the constant blockage of her airway with secretions;

• YGBW is at risk of developing pneumonia as a consequence of aspiration;

• Management of YGBW’s airway requires constant assessment of ‘multiple components’ that contribute to her airway blockage. These components include:

  oher posture and in particular the position of her head;

  oan understanding of neurology insofar as the positioning YGBW’s head so as not to aggravate an aspiration;

  oan ability to anticipate the consistency of YGBW’s secretions, which may vary between thin to thick;

  oan understanding of ‘secretion management’ and the options for management which include fluid intake, humidification, nebulization and suctioning.

• Ms Travlos explained that YGBW’s secretions are suctioned using two different methods. She described these methods as ‘oral suctioning’ and ‘deep suctioning’;

• YGBW is mostly suctioned for excess secretions within her oral cavity using a short suction device known as a Yankauer. This process she described as ‘oral suctioning’.

• At times however, YGBW requires deeper suctioning into her airway with a longer catheter. This process was described by Ms Travlos as ‘deep suctioning’. Deep suctioning involves the insertion of a catheter into YGBW’s oral cavity which is fed to a level ‘… behind the tongue, ….. into the laryngopharynx….above the vocal cords’;[34]

  [34] Transcript page 227 lines 23- 24 and 39-40.

• Ms Travlos stated quite emphatically that there is an ‘art to suctioning safely’.[35]

  [35] Transcript page 225 line 37.

• Deep suctioning for YGBW is considered the last in step in the management of secretions. This is because it requires the introduction of a foreign object into her airway which is distressing and can cause gagging, vomiting, aspiration with the risk of pneumonia;

• Ms Travlos explained that YGBW required deep suctioning ‘when all other methods fail’.[36] Deep suctioning requires ‘a lot of skill’ and carries a risk of aspiration if not done correctly.

  [36] Transcript page 226 line 36.

• A person performing deep suctioning on YGBW requires ‘a sound understanding of the anatomy and physiology of the respiratory system so as to be mindful of the risks and benefits of the technique being applied and to manage the risks and benefits of the technique being applied and to manage the risks as in, if you suction too deep and you cause hypoxia or cause a gag you need to be able to respond to that.’;

• Ms Travlos explains that if deep suctioning is ‘too deep’ it can cause hypoxia or a gag. In this circumstance the skill set to respond appropriately is required;

• Ms Travlos has never seen a support worker perform deep suctioning on YGBW.

74.  Ms Travlos described the NDISSD [37] as ‘ambitious’. She identified that her main concern was the fact that the NDISSD did not include any differentiation between oral suctioning and deep suctioning. Ms Travlos stated,

[37] Exhibit 12.

‘So that is probably my main concern about interpretation of suction is, there’s a difference between oral and deep suction.[38]

[38] Transcript page 229 line 29-30.

75.  Ms Travlos stated that the NDISSD for ‘Ventilator support’[39] are the closest in alignment with airway clearance and the skill of suctioning.  She stated there to be a distinction between ‘ventilation’ and ‘airway clearance’ as they involve two separate muscle activities. She explained that ventilation is about breathing, and airway clearance is about coughing. Notwithstanding, difficulties with ‘breathing’ and ‘coughing’ go ‘hand in hand’.[40]

[39] Exhibit 12 page 22.

[40] Transcript page 231 line 11.

76.  In particular, Ms Travlos also referred to the following references in the NDISSD for ventilation support,[41]

[41] Exhibit 12 page 24.

Responds to ventilator alarms to address issues

Identifies and immediately informs an appropriate health practitioner of risk indictors such as fatigue, anxiety or breathing difficulties

Identifies and takes immediate action in response to blocked or occluded airways, signs of choking or difficulty swallowing including suctioning and involving the appropriate health practitioner.[42]

[42] Page 24 Exhibit 12.

77.  Mr Travlos again emphasised that the NDISSD for ventilation support contained no differentiation whatsoever between ‘non-invasive oral suctioning’ and ‘invasive deep suctioning’. In doing so the NDISSD failed recognise the difference in the skill set required for non-invasive ventilation as compared to invasive ventilation.[43] Ms Travlos described the Skill Descriptors set as being ‘written beautifully for, like patients with spinal cord injury who have tracheostomies.’ [44]

[43] Transcript page 231 lines 42-43.

[44] Transcript page 230 line 22-23.

78.  Ms Travlos was referred to the following ‘knowledge’ for ventilator support within the NDISSD which is required for workers caring for participant’s who requires HIDPA,

Signs and symptoms of respiratory distress for example, drowsiness, reduced alertness, breathing rate, nose flaring, colour changes, wheezing, bracing upper body and large chest movement when breathing[45]

[45] Exhibit 12 page 23.

79.  Ms Travlos described this level knowledge as ‘a lot to get your head around, even as a practising clinician to respond to that. To respond to that, each of those separately takes a lot of training and experience, to choose the appropriate response for each of those signs and symptoms, because they can be due to, there’s so many reasons why that could present’. [46] She stated that it took a lot of training and experience to choose the appropriate response for each of the signs and symptoms as referred to in the NDISSD. Her opinion was that the NDISSD should be modified to reflect the differences in the skills set required for managing non-invasive ventilation as compared to invasive ventilation.[47]

[46] Transcript page 231 line 32-35.

[47] Transcript page 232 line 21-23.

80.  Ms Travlos stated that ‘….. I think they’re so ambitious for a support worker. Even I as a skilled professional I need to pause and assess and choose the most appropriate agent when I'm with YGBW in my half hour session with her.’[48]

81.  Ms Travlos described the expectations in the NDISSD as ‘Extremely high’.[49] She explained that she would expect that a registered nurse would satisfy the requirements of the NDISSD, however that she would not expect a newly graduated physiotherapist to have the requisite skill set to manage YGBW’s ventilation. In relation to the question as to whether an intern doctor would have the requisite skill set to manage YGBW’s ventilation she stated that it ‘depends on their prior experience’.

82.  Ms Travlos stated,

‘basically, in the community, what I observe is those who’ve had time in hospital with support of a medical team where when things go wrong – because they can go wrong in the space of ventilation and airway clearance, when you’ve worked in a hospital and you’ve understood the complexity of it and then transfer that to the community, you’re in a better trained space then trying to go in from working in the community and not having had that medical background. It’s medical.’[50]

83.  Ms Travlos stated at the conclusion of her oral evidence and in respect of the NDISSD,

…………………….. I think it’s beautifully written for patients that have a predictable, stable respiratory support need. So, your typical patients that I think that applies to fine, that I’ve seen in clinical practice of a spinal cord-injured patients with tracheas and kind of five, 10 years down the track of their injury. I think the support workers can do that for that cohort of people with complex disability, but I think for YGBW – is developing, she has dystonia. She’s unpredictable; that it doesn’t directly apply from that stable caseload to a fairly changeable presentation.

Date(s) of hearing:	19, 20 and 21 February 202; 31 March 2025; 2 and 4 April 2025; 30 May 2025
Applicant:	YGBW
Solicitors for the Respondent:	Maddox Lawyers
Counsel for the Respondent:	Mr Aaron Hartnett

Brennan, Katherine Langdon, Rachel A M Toovey, Susan Greaves, Megan Thorley, Iona Novak: ‘Interventions to improve physical function for children and young people with cerebral palsy: international clinical practice guideline’. Developmental Medicine and Child Neurology Volume 64, Issue 5, May 2022, pages 536-549.