ZCPY and National Disability Insurance Agency - [2017] AATA 3052

ZCPY and National Disability Insurance Agency [2017] AATA 3052 (4 December 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2016/1173

NATIONAL DISABILITY INSURANCE SCHEME DIVISION )

Re: ZCPY
Applicant

And: National Disability Insurance Agency
Respondent
TRIBUNAL:    Ms K Parker, Member
DATE:            23 February 2018
PLACE:          Melbourne
CORRIGENDUM TO DECISION
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the heading of the written reasons dated 21 December 2017 as follows:
·The Division: on the cover page should read:
National Disability Insurance Scheme

[sgd]...............................................................
Member
Division:GENERAL DIVISION
File Number(s): 2016/1173
Re: ZCPY
APPLICANT

National Disability Insurance AgencyAnd
RESPONDENT

WRITTEN REASONS FOR DECISION
Tribunal:Member Kim Parker
Date of decision: 4 December 2017
Date of written reasons 21 December 2017
Place:Melbourne

The reviewable decision in this application is a decision by the NDIA to approve the Statement of Supports for the Applicant forming part of his previous NDIS plan which commenced on 1 November 2015 (Plan Under Review).
The Tribunal decides:

To vary the reviewable decision by adding a specific literacy program as an additional support to the Statement of Supports in the Plan Under Review. This specific literacy program is the Seeing Stars: Symbol Imagery for Phonological and Orthographic Processing in Reading and Spelling (SI) program to be delivered directly by Lindamood-Bell Learning Processing (LBLP) Centre in Hawthorn, Victoria, as part of an intensive program being four hours per day, five days per week, for a consecutive period of eight weeks.

The Tribunal notes:
1.That the Plan Under Review has been replaced by new NDIS plans for the Applicant. By operation of s 37(3) of the National Disability Insurance Scheme Act 2013, the Plan Under Review has ceased to exist. This means that the decision of the Tribunal which relates to the Statement of Supports in the Plan Under Review has no practical effect or operation. However, the NDIA has voluntarily given an undertaking to the Tribunal that it is prepared to reflect any findings made by the Tribunal in relation to this support in the pending new NDIS plan for the Applicant.

To assist the NDIA to comply with the undertaking provided and in light of the decision of the Tribunal as set out above, the Tribunal recommends:

That the Statement of Supports to be approved by the NDIA and included in the pending new plan for the Applicant, should include the specific literacy program outlined above, to commence on 11 December 2017; and

That this program be commenced by the Applicant on condition that a full interim progress assessment of the Applicant will be conducted by LBLP, at the end of the first four completed weeks of the program, to ensure that reasonable progress has been made by the Applicant in relation to his reading and writing skills and if not, the program is to be immediately discontinued by the Applicant exiting the program and no further service fees are to be paid to LBLP.

The parties have general liberty to apply, including with regard to any remaining issues unable to be resolved between the parties in relation to the other supports in the Plan Under Review or in relation to any dispute that may arise between the parties as to what constitutes “reasonable progress” when the interim assessment process takes place part way through the SI program to commence on 11 December 2017.
................................[sgd]........................................
Member Kim Parker
NATIONAL DISABILITY INSURANCE SCHEME – review of statement of supports in NDIS participant’s plan – reviewable decision relates to supports in an NDIS plan that has been replaced by subsequent plans – the NDIS plan under review no longer exists –decision of the Tribunal will have no practical effect or operation – NDIA provided an undertaking to reflect the Tribunal’s decision in the pending new NDIS plan – dispute about whether additional supports should be provided – request for an urgent decision in relation to whether a specified literacy program should be added as an additional support – whether the literacy program was a reasonable and necessary support - whether the literacy program represented value for money - whether the literacy program assisted in undertaking activities to facilitate social and economic participation – whether the literacy program was effective and beneficial - whether the literacy program is most appropriately funded through the NDIA – whether support is most appropriately funded through the education system – consideration of Victorian Government’s Program for Students with Disabilities – distinction between intended educational attainment for a student at senior secondary level in contrast to a student at primary level - decision to vary to add specialised literacy program as a support to the plan under review – further non-binding observations and recommendations made about the literacy program in the context of the pending new NDIS plan for the Applicant – recommendations for interim progress testing half way through implementation of the program
Legislation
Administrative Appeals Tribunal Act 1975 (Cth); s 37
Disability Discrimination Act 1992
National Disability Insurance Scheme Act 2013 (Cth); ss 32A, 33, 34, 35
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634
Secondary Materials
NDIS Operational Guidelines – Planning (Chapter 10)
Victorian Government Department of Education and Training, Program for Students with Disabilities Operational Guidelines for Schools 2018
National Disability Strategy 2010 – 2020
REASONS FOR DECISION
Member Kim Parker
21 December 2017

The Applicant commenced as a participant of the National Disability Insurance Scheme (NDIS) in 2013. Since that time, a number of NDIS plans have been approved for the Applicant. These plans list his goals, a range of different supports to be provided to the Applicant and the approved level of funding for each.
On 1 November 2015, a NDIS plan commenced for the Applicant which included an approved Statement of Supports to be funded under the NDIS (Plan Under Review).[1] The Plan Under Review was sent to the Applicant with a cover letter from the National Disability Insurance Agency (NDIA) dated 30 October 2015. This cover letter, among other things, explained why the NDIA had approved certain supports.[2]
[1] Refer T-Documents T72 – scheduled date for review of plan was 31 October 2016. The T-Documents are a set of documents the NDIA filed with the Tribunal pursuant to s 37 of Administrative Appeals Tribunal Act 1975.
[2] Refer T-Documents T61.
The Applicant’s mother requested that the NDIA conduct an internal review under subsection 100(2) of the National Disability Insurance Scheme Act 2013 (Act) of the NDIA’s decision to approve the Statement of Supports in the Plan Under Review. As part of that internal review, the Applicant’s mother sought funding for four additional supports for her son:
(a)provision of training to the Applicant’s teachers to work with the Applicant to use assistive technology;
(b)funding to assist with teaching and transporting the Applicant to community access and social and recreational activities on weekends;
(c)30 additional hours of speech therapy for the Applicant;[3] and
(d)provision of a specialised literacy program, Lindamood Phoneme Sequencing Program for Reading, Spelling and Speech (LiPS).
[3] Refer T-Documents T3 – the Applicant’s mother sought reinstatement of 30 hours of speech therapy removed from the previous plan.
The NDIA completed its internal review and issued a decision on 8 February 2016 (Internal Review Decision) to the following effect:
(a)in relation to the first two supports, the NDIA stated that funding for those supports was available to the Applicant under approved supports already included in the Plan Under Review;
(b)in relation to the last two supports, the NDIA affirmed that it did not consider that those two supports were reasonable and necessary under s 34 of the Act and for that reason; the NDIA affirmed its earlier decision to approve a statement of supports for the Applicant which did not include those last two supports.
The Applicant’s mother sought review on behalf of her son by this Tribunal under s 103 of the Act of the Internal Review Decision in relation to all four supports.
Since then, the Plan Under Review has been replaced by a subsequent NDIS plan for the Applicant which commenced on 27 October 2016. This was in turn, replaced by a further subsequent NDIS plan which commenced on 5 December 2016 (Current Plan). The Current Plan was due to be reviewed on 5 December 2017 and a new NDIA plan for the Applicant was due to be approved (Pending New Plan).
In this application, the jurisdiction of the Tribunal is limited to the decision of the NDIA to approve the Statement of Supports in the Plan Under Review. As the Plan Under Review was replaced by subsequent NDIS plans, by operation of s 37(3) of the Act, the Plan Under Review has ceased to exist. Accordingly, the decision of the Tribunal has no practical effect or operation.
However, the NDIA has voluntarily given an undertaking to the Tribunal that it is prepared to reflect any findings made by the Tribunal in relation to supports, in the Plan Under Review in the Pending New Plan.
At the hearing, it was identified that an expeditious decision by the Tribunal was required because, if approved, the proposed literacy program would be commenced on 11 December 2017. This program could be undertaken by the Applicant over his 2017/2018 summer school holidays.
At the time of the Internal Review Decision, the Applicant’s mother sought the provision of the LiPS program for her son. This program was developed by Lindamood-Bell Learning Processing (LBLP) and it offers to deliver the program through its LBLP Centres, as explained in more detail below.
By the time of the hearing, the Applicant’s mother’s evidence had evolved to include recommendations for the funding for a different but related literacy program called Seeing Stars: Symbol Imagery for Phonological and Orthographic Processing in Reading and Spelling (SI), also offered by LBLP. At the hearing, it was proposed by the Applicant’s mother that her son undertake the SI program for 4 hours a day, 5 days a week, for a period of 8 to 10 weeks commencing on 11 December 2017. This was to be delivered by LBLP via one-on-one video conferencing sessions with LBLP staff.
The hearing of this application took place on 23, 24 and 29 November 2017. At the commencement of the hearing, the parties agreed that the Tribunal should narrow its present focus on the question of whether the SI program as proposed was a reasonable and necessary support under s 34 of the Act. This was considered appropriate so as to allow the Tribunal to deal with the application expeditiously before the next review date of the Applicant’s NDIS plan which was 5 December 2017. This would permit the Applicant to commence the proposed program on 11 December 2017 and complete it over summer school holidays, if the Tribunal found in favour of the Applicant.
For this reason, this decision made by the Tribunal is limited to addressing solely the issue of whether the proposed specialised literacy program should be added to the Statement of Supports. I have not made a decision in relation to any other residual supports in the Statement of Supports for the Plan Under Review. For this reason, I grant general liberty to apply, including with regard to any remaining issues unable to be resolved between the parties in relation to the other supports in the Plan Under Review. General liberty to apply extends also to any dispute that may arise between the parties as to what constitutes ‘reasonable progress’ when a full interim assessment process takes place half way through the SI program to commence on 11 December 2017 (see paragraph [157] for further detail).
In relation to the issue in dispute at the hearing, the Tribunal has decided to vary the reviewable decision to add as a support, the provision of and funding for the specific literacy program for the Applicant as particularised on page 1 of this Decision, in additional to all other supports in the Plan Under Review. The Tribunal also recommends the inclusion of that support in the Pending New Plan, subject to a condition that progress testing take place half way through the program, as described in paragraph [157].
ISSUES
This application raises for consideration by the Tribunal the question of whether each of the four supports requested by the Applicant’s mother, as listed in paragraphs [3], are already covered under an approved support in the Plan Under Review and if not, whether they are reasonable and necessary supports under s 34 of the Act and should be included in the statement of supports in the Plan Under Review.
By consent of the parties, the issues for determination at this stage by the Tribunal have been narrowed to the question of whether the proposed literacy program is a reasonable and necessary support under s 34 of the Act and should be included in the Statement of Supports in the Plan Under Review.
As outlined above, the Tribunal does not have jurisdiction to make a decision in relation to the Pending New Plan, or the Current Plan for that matter. However, in order to assist the NDIA to comply with its undertaking to the Tribunal as referred to in paragraph [8] above, I have made recommendations about the proposed support in the context of the Pending New Plan in paragraphs [156] and [157] below.
LEGISLATIVE FRAMEWORK
The NDIS was established under the Act. Persons with disabilities may apply to become a participant in the scheme, subject to certain eligibility requirements.
NDIS plans are prepared in accordance with the Act and relevant rules made under section 32A of the Act. The supports described in the plans need to be approved by the NDIA which is the agency responsible for administering this scheme. A participant’s Statement of Supports is determined in accordance with the Act and the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules).
Subsection 33(3) of the Act provides that supports that will be funded or provided under the NDIA may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
Subsection 33(5) of the Act requires the CEO of the NDIA, in deciding whether or not to approve the Statement of Supports under subsection 33(2), must:
(a)have regard to the participant’s statement of goals and aspirations;
(b)have regard to relevant assessments conducted in relation to the participant;
(c)be satisfied as mentioned in s 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
(d)apply the NDIS rules (if any) made for the purposes of s 35 of the Act;
(e)have regard to the principle that a participant should manage his or her plan and to the extent that he or she wishes to do so; and
(f)have regard to the operation and effectiveness of any previous plans of the participant.
Section 34(1) of the Act provides:
For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a)The support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)The support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)The support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)The support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)The funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and community to provide;
(f)The support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
i.as part of a universal service obligation; or
ii.in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability;
Section 35 of the Act allows for NDIS rules to be prescribed, establishing a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided,[4] or for declaring particular reasonable and necessary supports or general supports to be provided or funded, either generally or for prescribed participants.[5]
[4] Refer s 35(1)(a) of the Act.
[5] Refer s 35(1)(b) and (c) of the Act.
Rules prescribed under s 35 of the Act require that the CEO of the NDIA have regard to certain matters in relation to reaching a state of satisfaction with respect to whether the mandatory requirements under subsection 34(1) of the Act are met. Schedule 1 of the Rules also prescribe matters to be considered in relation to the requirement under subsection 34(1)(f) of the Act, namely that supports are appropriately funded or provided through the NDIS and not more appropriately funded by some other service system.
The NDIA has published internal Operational Guidelines on its website which guides delegates of the CEO of the NDIA in reaching the requisite state of satisfaction under s 34 of the Act. It is appropriate for the Tribunal to consider those guidelines and act consistently with them, unless there are good reasons not to or unless the Tribunal considers them to be inconsistent with the legislative regime – see Re Drake and Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634.
FACTUAL BACKGROUND
The Applicant
The Applicant is 17 years of age and has attended a mainstream public secondary school since Year 7 on a full-time basis. He is about to complete Year 10 and will enter either VCE or VCAL next year. The Applicant also attended a mainstream public primary school, though there were two short periods, during which he was home schooled due to reported instances of bullying.
On 6 July 2010, the Applicant was diagnosed by his former treating paediatrician, Dr Kym Anderson, as having a “multidisciplinary diagnosis of Autism Spectrum Disorder” (ASD).[6] It was not in contest between the parties that the Applicant has severely impaired phonemic awareness and literacy skills, making it extremely difficult for the Applicant to read and write. His current reading age was assessed in September 2016 to be between 6 to 7 years old. These impairments have substantially reduced the Applicant’s capacity to communicate in the written form and to engage independently in some daily activities as a result. This has also presented significant obstacles with respect to the Applicant accessing the academic curriculum at his school without assistance.
[6] Refer to open letter by Dr Kym Anderson dated 24 November 2017.

The Applicant’s mother gave evidence that her son had previously completed reading recovery programs, but that they “didn’t work”.
The Applicant’s mother is the sole parent and carer of the Applicant. She also cares for her 11 year old daughter, also an NDIS participant, who was reported to have ASD and high care needs.
The Applicant’s mother said that her son had not been treated by any medical practitioners in about the last two years, nor was he presently being treated by a speech pathologist or psychologist. He was, however, participating in family therapy sessions and was receiving the assistance of an occupational therapist (OT) and an OT assistant.
The Plan Under review
In the Plan Under Review, the Applicant’s goals were described as follows:
(a)to get a part-time job (to learn how to travel by bus and to develop work ready skills);
(b)to get his driver’s licence (to start developing the skills required to apply for his Learner’s Permit);
(c)to increase his independence (to learn how to travel by bus, have opportunities to stay away from home, independent from his family);
(d)to regularly engaged in social and recreational activities (to continue to access the computer club, go on camps and engage in activities that are of interest to me);
(e)to maintain his health and well-being (to improve his relationship with his sister to learn how to better manage the symptoms of anxiety).
The Applicant’s supports in his Plan Under Review were listed as:
(a)Informal supports: the Applicant’s mother in various aspects of daily living;
(b)Services and community groups: the Applicant’s high school, Department of Education (Program for Students with Disability Funding – Aid support in some classes), his technology club, a parent run support network to support families living with an ASD, Centrelink, local council, youth centre, Vic Roads and youth mentoring service;
(c)NDIS reasonable and necessary supports budgets (total $24,824):
(i)Assistive technology - $771
[Provision of communication aid: iPad with protective cover. Specified “read and write for iPad” app and headset];
(ii)Increased social and community participation - $2,085
CAMPS: to support [the Applicant’s] goal developing his independence, enabling [the Applicant] some time to spend time away from his family, whilst developing interpersonal and social skills. Also to provide [the Applicant’s mother] with a break from the caring role (to maintain informal care). As per quote.
(iii)Transport to access daily activities - $304
Transport: to support exploration of mainstream community based activities. It is anticipated after initial exploration, public transport will be used for ongoing engagement/participation therefore this has been included as a capacity building support only (Travel training assessment pending).
(iv)Improved daily living skills - $9,468
PYSCHOLOGY: up to 13 hours. To support [the Applicant] to manage the symptoms of anxiety. FAMILY THERAPY: up to 10 hours. To maintain family unit, improving relationships. SPEECH THERPAPY: up to 26 hours, to develop expressive, receptive & pragmatic language. OCCUPATIONAL THERAPY: up to 16 hours. Focus on planning, sensory processing to decrease anxiety in changing environments, travel training & personal skills development, assistance to learn how to use funded hardware & software. “STATED SUPPORTS”
(v)Finding and keeping a job - $689
VOCATIONAL ASSESSMENT: In line with [the Applicant’s] goal of obtaining employment – vocational & functional assessment. Report to be provided to NDIA including recommendations “STATED SUPPORT”
(vi)Increased social and community participation - $6,803
INDIVIDUAL SKILLS DEVELOPMENT: to support [the Applicant] to develop the skills to independently participate in community based activities of interest, in line with his goal of having opportunities to engage in recreational activities – 126 hours. Further SKILL DEVELOPMENT/THERAPY ASSISTANT hours may need to be added – pending recommendations from OT, to support development of activities of daily living.
(vii)Improved life choices - $4,704
SUPPORT COORDINATION: Assistance to strengthen [the Applicant’s] and [his mother’s] abilities to connect and coordinate supports in a complex service delivery environment. This includes resolving points of crisis, developing capacity & resilience in a participant’s network & coordinating supports from a range of sources. To include support to implement NDIA Plan (funded and mainstream supports), monitoring of supports towards achieving goals, ensuring providers working holistically to ensure best outcomes.
Victorian Government’s Program for Students with Disability
At the hearing, the Applicant’s mother gave evidence that four years ago, when the Applicant started high school; he was assessed as requiring Level 3 funding under the Program for Students with Disability (PSD) offered by the Victorian Department of Education and Training (Department). Consequently, the Applicant’s high school has been allocated PSD funding under this program, every year for the last four years, which was to be spent on targeted resources for the Applicant.
The Applicant’s school received a PSD allocation for the Applicant in 2017 of $25,418. This allocation will increase to $26,145 for the 2018 calendar year.[7]
[7] Refer
The Department issued the 22^nd edition of the Operational Guidelines for Schools for the PSD in March 2017 (PSD Guidelines) setting out the following:[8]
[8] Refer to Victorian Government publication entitled “Program for Students with Disabilities – operational guidelines for schools 2018” - .
(a)The program provides targeted supplementary resources to assist schools to meet their obligations to make reasonable adjustments under the Disability Discrimination Act 1992;
(b)Three broad objectives for students with disabilities (set out in 1.2 of the PSD Guidelines) include student learning (support and improve the learning of students); student engagement and wellbeing (support the access and participation of students in an inclusive schooling system); and student pathways and transitions (support for transitions for students, into, through and post school).
(c)The educational needs, participation and achievement of students supported by the program will be monitored and reviewed by a Student Support Group;
(d)A Student Support Group (SSG) consists of the Principal (or nominee) of the school, the parent (and parent’s advocate if requested), and the student (where appropriate).
(e)The SSG is “a cooperative partnership between the [parent], school representative and professionals to ensure coordinated support for the student’s educational needs” and it is the responsibility of the SSG to:
(i)identify the student’s learning and support needs;
(ii)gather and review evidence to determine any adjustments to be made to the curriculum, and teaching and learning approaches;
(iii)provide advice and guidance on an appropriate educational program;
(iv)undertake personalised learning and support planning for the student;
(v)discuss planning with teachers and provide support on the implementation of learning and support adjustments;
(vi)provide advice to the Principal concerning the additional educational needs of the student and types of resources that will meet these needs;
(vii)review and evaluate the student’s program once per term, and at other times if requested by any member of the group.
(f)The SSG has a key role in advising the Principal on the educational program for the student and the nature of the additional resources required to support the PSD. The SSG is to consider “specific, targeted strategies that will have lasting and long term benefit for the student, as well as building the capacity of the school to provide an effective, inclusive curriculum for students with additional learning needs”.[9]
(g)Resources from the PSD can be used “in a number of ways to support students, including providing teaching staff; specialist staff (e.g. special needs coordinator, occupational therapists, speech pathologists), teacher professional development, specialist equipment/materials, including technology, and education support staff”.
[9] Refer section 5.3 of the PSD Guidelines.
At the hearing, the Applicant’s mother gave evidence to the effect that she did not know exactly how the Applicant’s high school had used the allocated PSD funds with respect to the Applicant. At the end of the second day of the hearing on 24 November 2017, once it was known to the Applicant’s mother that the NDIA proposed to obtain such information from the school, the Applicant gave further evidence that she was aware that the school had offered the Applicant a self-administered online literacy program called “Phonics 3”. She gave evidence to the effect that the Applicant had started to complete the “Phonics 3” program but he did not think much of it, so did not continue with it.
At the hearing on 29 November 2017, the Principal and two Assistant Principals of the Applicant’s school provided the following information to the Tribunal about the PDS and how the allocated funds had been used:[10]
(a)In 2017, most of the allocated funding for the Applicant had been used to engage individual aides to provide one-on-one assistance to the Applicant for between 10 and 15 out of his 30 weekly classes at the school.[11] The aides predominately acted as the Applicant’s scribe in those classes and reading out to him written text. This assistance was provided in conjunction with his use of assistive technology as funded by the NDIA, which was used by the Applicant to read electronic text and to dictate into the written form. The Principal said that the provision of an aide to the Applicant was necessary to enable the Applicant to access the Year 10 curriculum.
(b)Some of the funding was combined with funding allocations from other students under the PSD, and used to pay for a PSD Coordinator to be employed by the school to provide general assistance to students with disabilities.
(c)The Applicant also has access to a resource area for learning assistance where he may obtain one-on-one support from the aides and teacher who coordinates that space. The Applicant usually uses this support during the five sessions per week that the school had agreed that he need not attend under a modified class schedule for the Applicant.
(d)The Principal said he has decided to use the Applicant’s PSD funding allocation in this way, based on advice he had received from “the regional office”, like other schools had done, and based on recommendations arising from meetings with the PSD Coordinator, teachers and the Applicant’s mother. The Principal said that the Applicant’s mother was aware of and was in agreement with the school’s approach in using the PSD-allocated funds to provide an individual aide to assist her son in classes. The Tribunal notes this was reflected in the minutes of meetings of the Applicant’s Student Support Group (SSG) which show that they were attended by the Applicant’s mother.[12]
(e)The Applicant’s supports are reviewed quarterly or as needed.
(f)The Applicant has not refused any support offered to him by the school.
(g)The school had previously offered a literacy program to the Applicant called Phonics Alive 3 because it “had been approved by experts in the regional office”. The program was approved as a general literacy support, i.e., it was not provided as a specific support for the Applicant. The Principal said he was not aware whether the Applicant was still doing that course.
(h)The Principal said that he would not consider using some of the PSD allocated funding to pay for a specialised literacy program delivered by an external supplier because it would mean the school would need to reduce the number of hours that the Applicant was provided with an individual aide. The Principal was adamant that the support provided to the Applicant in the form of individual aides, was the best type of support for the Applicant. The Principal said he “would have to be convinced otherwise” before he would be prepared to change the type of supports provided to the Applicant under the PSD.
[10] Information was also provided in a letter from the School lodged with the Tribunal before the last day of the hearing.
[11] Based on four by 10-week terms per year, this would equate to total of 40 to 60 hours of individual aide assistance per year for the Applicant.
[12] The minutes of the SSG meetings which took place between March 2014 and August 2017 were lodged with the Tribunal on 29 November 2017.
The Principal said that in 2018, the allocated PDS funding would be applied by the school in the same way, primarily to fund the provision of aides for the Applicant.
Proposed literacy program
LBLP is a privately-owned Californian company[13] which has developed a range of literacy programs and offers for sale educational resources and the delivery of those programs through its centres. LBLP have established centres globally, including in Australia. The programs developed LBLP include:
(a)LiPS program;
(b)SI program;
(c)Visualising and Verbalising for Language Comprehension and Thinking (V/V);
(d)Talkies: Visualising and Verbalising for Oral Language Comprehension and Expression (Talkies); and
(e)On Cloud Nine (OCN).
[13] Through its related company, Gander Publishing.
Gareth Trew, Acting Centre Director, LBLP stated in an open letter dated 5 October 2017 (referred to in more detail in paragraphs [88] and [90] below), that the stimulation and development of underlying sensory-cognitive functions can lead to increased reading fluency and spelling ability. Mr Trew explained that to be able to read quickly and accurately, the underlying skills of phonemic awareness and symbol imagery needed to be in place. He also explained that phonemic awareness is the ability to perceive and sequence the sounds within words, and symbol imagery is the ability to create mental representations for the letters and sounds within words.
At the hearing, Andy Russell, Centre Director, LBLP, gave evidence to the effect that the SI program may be undertaken as a complete program, delivered either online or in person, by LBLP staff through one of the Centres. Online delivery of the program comprises one-on-one video-conferencing sessions between the program participant and LBLP staff. Mr Russell confirmed, when asked, that the SI program may also be undertaken by a person purchasing the SI program resource or kit from the LBLP website and self-administering it with the help of others (for example, teachers, parents or speech therapists).[14]
[14] A training manual on how to deliver this program is also offered for sale on the LBLP website.
Mr Russell gave evidence that LBLP does not impose any minimum educational requirements when employing LBLP staff who would deliver its literacy programs. Mr Russell gave evidence that LBLP staff who deliver the one-on-one sessions, called “Clinicians”, have been provided with 80 hours of internal training by LBLP (delivered full‑time over a period of two weeks). When questioned, Mr Russell said he was unsure how many of the LBLP clinicians were qualified speech pathologists but he said “I think there might be about two” (out of approximately 30 clinicians employed at the Sydney LBLP Centre). He said the work of the LBLP clinicians was overseen by LBLP consultants and associate directors of the LBLP centres.
Mr Russell said that when the program was delivered through LBLP, their clients would be continuously monitored by LBLP staff as they completed the course and if necessary, modifications would be made to the program to customise it to the client.
Mr Russell gave evidence that the hourly rate for delivery of the SI program out of the Sydney LBLP Centre was $135 per hour. He said the rate was $130 per hour if was delivered out of the Melbourne LBLP Centre.
Mr Russell said that LBLP is not a not-for-profit entity and he confirmed it was a private US company.
When questioned, Mr Russell said that if required, a progress assessment could be conducted at the four-week mark (of an intensive 8 to 10 week-program) to check the progress of the client. Mr Russell said that if the client had not made progress by the four-week mark, he accepted that it would be appropriate to discontinue the program for that client. Upon questioning, Mr Russell said the terms of the contract were such that it would allow a person to exit the program should this occur. Mr Russell said that in his experience at LBLP over the last six years, this had rarely occurred, if ever. Mr Russell also said that due to the constant monitoring that occurs, it should be apparent to the LBLP staff before the four-week mark if no progress was being made.
CONSIDERATION
The NDIA contends that the provision of and funding for the SI program to the Applicant, as proposed, was not a reasonable and necessary support under s 34 of the Act for the following reasons:
(a)There was insufficient evidence that it would be effective or beneficial for the Applicant;
(b)The cost of the delivery of the program as proposed by the Applicant’s mother on behalf of her son was not value for money; and
(c)The SI program related primarily to the Applicant’s educational attainment and it is not most appropriately funded by the NDIS.
The Applicant contends that the Tribunal should be satisfied that each those requirements are met.
The Tribunal will consider each of the factors set out in subsection 34(1) of the Act in turn, in relation to the proposed SI literacy program.
Subsection 34(1)(a) – Whether the support will assist the Applicant to pursue the his goals, objectives and aspirations
The Applicant’s goals, objectives and aspirations in the Plan Under Review are set out in paragraph [31] above. The proposed SI program is intended to improve the Applicant’s ability to read and write in the English language. If the program succeeds in improving the Applicant’s abilities in these areas, it will assist the participant to pursue his goals, objectives, and aspirations. He would have an increased capacity to get a part time job, get his driver’s licence, increase his independence by learning how to travel independently, read menus independently, find toilet facilities independently when he is out of the home, which will in turn allow for him to become more engaged in social and recreational activities on an independent basis. The Tribunal is satisfied that the mandatory requirement under subsection 34(1)(a) is met.
Subsection 34(1)(b) – Whether the support will assist the Applicant to undertake activities, so as to facilitate his social and economic participation
For the reasons outlined in the above paragraph, if the support achieves what is intended, and the Applicant’s ability to read and write is improved, the Tribunal is satisfied that this will assist him to undertake activities as detailed above which will facilitate his social and economic participation. The Tribunal is satisfied that the mandatory requirement under subsection 34(1)(b) is met.
Subsection 34(1)(c) – Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice
The NDIA contends that the proposed SI program would not be effective or beneficial for the Applicant and refers to the following:
(a)The expert opinion expressed by Ms Mary Woodward, speech pathologist, who undertook an assessment of the Applicant and who gave evidence at the hearing; and
(b)The Applicant’s response to the specialised literacy program, LiPS, that was previously undertaken by the Applicant.

The Applicant’s mother on behalf of her son, contended that it would be effective or beneficial for the applicant to undertake a specialised literacy program through LBLP, such as the SI program as proposed, because:
(a)The SI program would be delivered to the Applicant on an intensive basis, unlike the previous LiPS program which was not delivered on an intensive basis;
(b)Her own observations were that there was some improvements in the Applicant’s ability to read and write following the previous LiPS program delivered to the Applicant;
(c)The expert opinion expressed by Ms Heather King, speech pathologist; and
(d)The views of Mr Russell from LBLP.
Mary Woodward – speech pathologist
Ms Woodward was engaged by the NDIA to assess and provide an opinion about the Applicant. Ms Woodward was provided with previous specialists’ reports and assessments relating to the Applicant from speech pathologists, Jenny Absalom and Adam Velcek; an occupational therapist, Kelsey Jamieson; the Applicant’s former treating psychologist, Colin McMeekin; and a literature review prepared by Speech Pathology Australia (SPA).
Ms Woodward has worked as a speech pathologist since 2003, and has extensive experience working with children, adolescents and adults with ASD and mental health difficulties in the United Kingdom and Australia. Prior to working as a speech pathologist, Ms Woodward was employed in a “dyslexia clinic” (not LBLP) for about seven months in about 2000/2001, in Kentucky, USA, where she administered the LBLP programs. Ms Woodward holds a Masters in Medical Science in Clinical Communications Studies and wrote her Masters thesis on “the relative success of the [LiPS] program for clients with different initial profiles, and the subsequent implications on the development of literacy interventions”.[15]
[15] Refer page 2 of the Ms Woodward’s expert report dated 13 October 2016 (Ms Woodward’s Report).
Ms Woodward stated in her report dated 13 October 2016 (Ms Woodward’s Report) that the findings of cognitive functioning assessments and achievement measures (as assessed by the Weschler Individual Achievement Test) conducted in 2012 (when the Applicant was aged 12) by Mr McMeekin, indicated “a discrepancy between his cognitive skills and his achievement, i.e. a gap between his underlying capacity and his functional ability, with particularly low achievement in literacy and mathematics”.[16]
[16] Refer page 4 of Ms Woodward’s Report.
With the consent of the Applicant and his mother, Ms Woodward spoke to Mr McMeekin. Ms Woodward did not speak with Mr Velcek. On 11 October 2016, Ms Woodward completed an assessment with the Applicant at his high school and spoke to teaching staff and the Applicant’s mother. Ms Woodward indicated that she was unable to perform standardised assessments of the Applicant as he had completed them a short time prior with Mr Velcek and she said it would have rendered repeat assessments invalid. Ms Woodward did not have access to the results of those tests but she said she was able to ascertain the Applicant’s “current strengths and weaknesses and functional ability in different communication domains” by using a range of informal and semi-structured measures, including the discussions with the Applicant, his mother and several of the teaching staff at his high school.
Ms Woodward reported that teaching staff from the Applicant’s school considered the Applicant to be “an articulate, intelligent boy, who has ‘outstanding’ verbal and mathematical skills, and whose main obstacle at present in accessing the curriculum is his difficulty reading and writing text”. This was echoed by the Principal when he provided information to the Tribunal on the last day of the hearing.
Ms Woodward concluded that:
(a)the Applicant “on the whole had well-developed verbal reasoning skills, although his verbal fluency and understanding of abstract language warrant further investigation”;[17] and
(b)“it appears that [the Applicant’s] receptive and expressive language skills are currently adequate for participation in daily activities”.[18]
[17] Refer page 7 of Ms Woodward’s Report.
[18] Refer page 8 of Ms Woodward’s Report.
Ms Woodward was aware that the Applicant had undertaken the Fast ForWord literacy program when he was younger. This program was administered to the Applicant by his mother who undertook special training to deliver this program to her son. The Applicant’s mother gave evidence that she used to practice as an OT, although had not done so for many years. The Applicant’s mother gave evidence that the program worked well until “the Applicant’s skills plateaued”.[19]
[19] Refer page 9 of Ms Woodward’s Report.
Ms Woodward was also aware that the Applicant had also received speech pathology intervention, including elements of the LiPS program, for several years. This was reported to be usually on a weekly basis (initially it was twice weekly) although there were gaps in the frequency of delivery.[20]
[20] Refer page 9 of Ms Woodward’s Report.
Ms Woodward said she completed a phonological processing screening assessment of the Applicant to investigate his ability to identify and manipulate the sounds in words. From this assessment, Ms Woodward concluded that:
…[the Applicant’s] letter-to-sound correspondence knowledge is therefore extremely poor, which is concerning given the extent of the intervention he has already received in both Speech Pathology and school sessions.
Ms Woodward concluded as follows (emphasis added):[21]
[The Applicant] has multiple previous diagnoses, including autism spectrum disorder and receptive and expressive language disorder. Having read previous reports I was surprised by how well [the Applicant] is currently functioning in many aspects of his communication, with literacy being the main significant barrier in his participation in daily life at the present time. He has clearly responded well to many of the interventions given, and has made pleasing progress in many aspects of functioning, including his verbal and social skills. He has struggled, however, to progress beyond a very basic level of literacy acquisition, and this significantly affects his independent participation in daily life as he is reliant on other people reading/writing for him unless able to use technological supports.
Someone presenting with [the Applicant’s] specific literacy difficulties may benefit from intensive intervention in a multi-sensory program such as LiPS to develop his phonological processing skills, letter-sound correspondence, and subsequent ability to read and write. As discussed in the literature review provided by Speech Pathology Australia, there is a strong evidence base for the success of the LiPS program with many individuals with literacy difficulties, and indeed I have evidence of that from my own clinical experience. However, I do not believe that receiving this intervention once a week, particularly if not reinforced with daily practice at home, will have a significant impact on [the Applicant’s] functional literacy skills and participation in daily life. Indeed, the literature suggests that intervention should be delivered for 3-4 hours a day, 5 days a week, for 4-6 weeks to achieve maximum success. Ideally, LiPS intervention should be delivered by someone trained in the program, and this may include a specially-trained Speech Pathologist or indeed a clinician and a Lindamood Bell Learning Centre. If an agreed goal were to be the ongoing development of [the Applicant’s] reading and writing skills, I would recommend an intensive period (ideally 120 hours over a 6 week period) of intervention using the LiPS program followed by sessions of reducing frequency (initially weekly, then fortnightly, then monthly) to support [the Applicant’s] maintenance of the skills.
However, [the Applicant’s] limited response to previous literacy interventions is not a positive prognostic indicator, and the functional impact of further literacy intervention is difficult to predict. I believe there is likely to be more functional benefit from developing his use of assisted technology to increase his independence in accessing written information. He requires support to access better text-to-speech and speech-to-text technology (enabling him to use it more quickly and in more contexts), to develop his skills in using the technology, and to update his use as available technology changes and as his requirements change (i.e. as his transitions from school into college and/or the workplace, and/or as his social situation changes). This support should be provided by someone with appropriate skills and experience with assisted technology, whether that be a Speech Pathologist or Occupational Therapist or indeed someone with experience providing support for people with visual impairments…
[21] Page 12 and 13 of Ms Woodward’s Report.
At the hearing, Ms Woodward gave evidence that it was “impossible for anyone to say what the outcome of intervention would be” in the Applicant’s case. Ms Woodward said that the best prognostic indicator as to whether an intervention would work was a person’s previous response to interventions. Ms Woodward noted that previous interventions on the whole had improved the Applicant’s oral language social skills. However, she said that despite him having received “quite a lot of intervention”, he had “no functional literacy skills and this was concerning to me”. Ms Woodward said that “if he was unable to benefit from literacy intervention in the past, I am hesitant about any given extent to which he may benefit from future literacy intervention”. Ms Woodward said that: “this doesn’t mean he absolutely wouldn’t benefit from it. There may be an ‘emotional benefit’ knowing that they had tried”.
In relation to the question of the level of intensity that a program like the one proposed should be delivered, Ms Woodward said “it is hard to know. We know to make any proper neurological differences there needs to be frequent repetition”. Ms Woodward also said that there was “research coming out” which had suggested that there was a “sweet spot for the intensity of intervention” and that by “therapeutic extension” that “too much can also not be helpful”.
Ms Woodward was asked whether motivation played a part in the success of this type of intervention to which she said it was “one of the most important factors”. Ms Woodward was asked whether, in her past experience when delivering the program, any of the children participating in it were unable to attend for the two to four hours per day due to concentration issues, to which she responded: “No, not from my recollection. It wasn’t a big problem”. Although, Ms Woodward said she had worked with participants who had been “self-selected”.
Ms Woodward said there were other evidence-based literacy programs offered by companies other than LBLP, such as an Australian program called ‘MultiLit’. Ms Woodward said it was an online reading intervention which may be delivered in a variety of ways and included various components.
Ms Woodward was asked why she had recommended that the Applicant should focus on developing his use of assistive technology and why she thought that it was more likely to deliver functional benefit, to which she responded: “if you wanted something, where you know it will have an impact, it is that”. Ms Woodward said she “did not know for sure whether [the Applicant] acquiring literacy, as a long term goal, was going to happen” and that the Applicant’s “greatest functional impact was compensatory strategies”. At the hearing, Ms Woodward accepted that assistive technology had its limits.
At the hearing, Ms Woodward also accepted that the past intervention that the Applicant had received had not been delivered on an intensive basis. Ms Woodward said there was a “definite possibility” that the Applicant would make some gains from undertaking the proposed program, but it was “at the less guaranteed end of the scale” and that the “extent of any benefit was unclear”.
Heather King – speech pathologist
Ms King was engaged by the Applicant to conduct a number of assessments on the Applicant which took place in September 2016. The Applicant was 16 years old at this time. Ms King prepared a report dated 20 January 2017 setting out the results of those assessments and her opinions in relation to the Applicant.[22]
[22] Refer Exhibit “A1”.
Ms King had access to a number of reports by various speech pathologists relating the Applicant. This included the reports by Ms Velcek dated 21 May 2013, 2 August 2014, 21 April 2016, but not his report issued in 2015. Ms King indicated that Mr Velcek was not available to speak to her about the Applicant at the time she tried to contact Mr Velcek.
Ms King states in her report that the Applicant’s mother had reported that her son had received speech pathology “since the diagnosis”, and that it had been intermittent and there had been long periods where the Applicant had not received any speech therapy at all. Ms King was aware that the Applicant had undertaken the LiPS program with Mr Velcek “which ceased at the end of 2015”. Ms King stated that:
This program [LiPS] has been shown to be effective at the required intensity for improving reading skills however, this program is not designed for weekly sessions and so, as a result, [the Applicant’s] progress with reading has been slow.
Ms King administered the The Clinical Evaluation of Language Fundamentals[23] (CELF-4 Australian) test on the Applicant on 22 September 2016 and the results are set out below. A score of 100 in each of these tests represents the performance of a typical student at the given age of the person being tested. The standard deviation for each is 15:
(a)The Applicant scored a CELF-4 Australian Core Language Score of 78 (percentile rank = 7) placing the Applicant in the borderline range of functioning. Ms King stated that the Core Language score is considered to be the most representative measure of the Applicant’s language skills and provides an easy and reliable way to quantify a student’s overall language performance;
(b)The Applicant received a CELF-4 Australian Receptive Language Index of 85 (percentile rank = 16) placing the Applicant in the borderline range of functioning. Ms King stated that this index probed receptive aspects of language including comprehension;
(c)The Applicant received a CELF-4 Australian Expressive Language Index of 72 (percentile rank = 3) placing the Applicant in the low range of functioning. Ms King stated that this index was a cumulative measure of the Applicant’s performance on three subtests that probe expressive aspects of language including oral expression;
(d)The Applicant received a CELF-4 Australian Language Content Index of 81 (percentile rank = 10) placing the Applicant in the borderline range of functioning. Ms King stated that this index was a cumulative measure of the Applicant’s performance on three subtests designed to probe semantic knowledge;
(e)The Applicant received a CELF-4 Australian Language Memory Index of 63 (percentile rank = 1) placing the Applicant in the very low range of functioning. Ms King stated that this index was a cumulative measure of the Applicant’s performance on the subtests designed to probe memory dependent language tasks;
(f)The 18-point discrepancy between the Applicant’s Language Content Index and Language Memory index can be considered rare, occurring in 4.3% of the “CELF-4 Australian standardisation sample” and this “may have an impact on intervention and classroom performance”;
(g)The Applicant received a CELF-4 Australian Working Memory Index of 68 (percentile rank = 2) placing the Applicant in the very low range of functioning. Ms King stated that this index was a cumulative measure of the Applicant’s performance on the subtests designed to best probe working memory.
[23] Fourth Edition – Australian Standardised Edition.
Ms King administered the Test of Adolescent and Adult Language[24] (TOAL-4) on the Applicant which Ms King stated was used to measure important communicative abilities involved in spoken and written language in adolescents and young adults between the ages of 12 years and 24 years 11 months. The results for the Applicant are set out below:
(a)Word Opposites – scaled score 10 – percentile rank = 50 – average;
(b)Word Derivations – scaled score 11 – percentile rank = 63 – average;
(c)Spoken Analogies – scaled score 6 – percentile rank = 9 – below average;
(d)Word Similarities – the Applicant was unable to complete the test;
(e)Sentence Combining - the Applicant was unable to complete the test;
(f)Orthographic Usage - the Applicant was unable to complete the test.
[24] Fourth Edition.
Ms King administered the Social Language Development Test (Bowers, Huisingh & LoGuidice, 2010) on the Applicant which Ms King stated was a diagnostic test of social language skills for adolescents aged 12 years to 17 years and 11 months. The results for the Applicant are set out below: [25]
(a)Making inferences – standard score 73 – percentile rank = 4 – age equivalent 11 years and 7 months;
(b)Interpreting Social Language – standard score 83 – percentile rank = 3 – age equivalent 11 years and 7 months;
(c)Problem Solving – standard score <60 – percentile rank = <1 – age equivalent 11 years and 7 months;
(d)Social interaction – standard score 94 – percentile rank = 35 – age equivalent 14 years and 7 months;
(e)Interpreting Ironic Statements – standard score 92 – percentile rank = 30 – age equivalent 11 years and 9 months.
[25] The age equivalent rankings had “<” preceding in the table A1.
Ms King administered the Neale Analysis of Reading Ability[26] on the Applicant, an Australian standardised attainment test to assess reading progress. The results for the Applicant are set out below:
(a)Accuracy: raw score 13 – percentile rank = less than 1 – performance = very low – equivalent reading age = 6 years and 6 months;
(b)Comprehension: raw score 11 – percentile rank = 2; performance = very low – equivalent reading age = 7 years and 6 months;
(c)Rate: raw score 13 – percentile rank = 1; performance = very low – equivalent reading age = 6 years
[26] Third Edition.
Ms King referred the Applicant for further assessment at the LBLP Centre in Hawthorn, Victoria, which took place on 28 October 2016. The LBLP assessment results for the Applicant were attached to Ms King’s report.[27] The Applicant scored a high result in the Peabody Picture Vocabulary Test (standard score - 109; percentile rank - 73; age equivalent 21 years 11 months), which Ms King gave evidence at the hearing was indicative of the cognitive potential for improvement in his reading skills. The LBLP, in its assessment report, stated that:
(a)the completed evaluation indicated that the Applicant had strength in his receptive and expressive vocabulary;
(b)the Applicant scored within the normal range in vocabulary and following oral directions; and
(c)scores within the normal range in these areas demonstrated the Applicant’s ability with concept imagery.
[27] Refer Attachment B to Exhibit “A1”.
The assessment report also included a recommendation by Ms Liz Baker, LBLP, that the Applicant undertake the SI and V/V programs at LBLP and that he required a solid intensive block of 200-240 hours of instruction (4-6 hours per day, 5 days per week, 10 to 12 weeks) which he could do as one-on-one therapy sessions via Skype. The program fees were indicated in that report as being $25,000 for 200 hours or $30,000 for 250 hours.
Ms King stated in her report that she considered that the Applicant would require further speech therapy to assist him with his social communication and literacy skills to reduce his dependence on his mother as he transitioned into adulthood. This would be undertaken to maximise his participation in social, academic and other activities and to achieve those goals in his NDIS plan, which included gaining employment and getting a driver’s licence.

Ms King recommended 240 hours intensive intervention through the SI and V/V programs through the LBLP aimed at improving his reading skills and stated:
This is significantly more intensive than any intervention he has had previously and, therefore, will have much greater efficacy and will increase his independence.
Ms King also stated that she supported the LBLP recommendations because of the intensive nature of the program offered and its focus on decoding skills.
At the hearing, Ms King gave evidence as follows:
(a)the LBLP program was effective because it goes to a dual coding process and plays on visual memory using contextual reading;
(b)the program addresses each students’ needs and is slightly customised to each individual;
(c)she believes that schools do their best with reading programs but they do not address the underlying issues. They are not equipped to teach someone with severe autism. The schools’ programs are usually limited to “reading recovery”;
(d)there was research coming out on students with ASD indicating that students are still able to learn at the age of 17; and
(e)she considered that the Applicant would benefit from undertaking the SI program as proposed and that he had not been given the opportunity to undertake an intensive program in the past. She noted that his therapy in the past had been intermittent.
Ms King was asked to provide an opinion about the extent to which an intensive SI program would improve the Applicant’s level of reading from his present level, which was low primary level. Ms King said:
There are no guarantees to any therapy. If he responded, he would have reading skills to go about daily activities. To function with efficiency requires being able to follow a bus timetable or order food in a restaurant. It would reduce his level of anxiety. The Applicant finds the fact he can’t read frustrating and very distressing. He has expressed that to me.
However Ms King stated that “there were no guarantees” and that “the spectrum is a spectrum for that reason”. She stated that persons with ASD “all have individual needs and deficits which makes it difficult to predict” and with regard to an intensive SI program, “some will do better than others”. Ms King explained that a person’s literacy skills are underpinned by their oral language skills so this may be an indicator that a person will do better.
At the end of such a program, Ms King said her “hope or expectation” was that the Applicant would be able to read to an age equivalent level of 11 or 12 years. When Ms King was asked what this hope or expectation was based upon she said: “Research I’ve read showing the pre and post percentile for children on the spectrum” and her observations of the Applicant during sessions with him, which were about 2.5 hours in duration, that he was “able to focus and attend to the tasks”. Ms King also said that the fact that the Applicant had a supportive parent was a positive indicator.
Ms King was asked whether she was concerned about the lack of significant progress made by the Applicant previously when he undertook the LiPS program in 2015. To this, she responded: “The Applicant was receiving the LiPS program on a less than optimal regularity so I would not expect to see the improvement” and “it needed to be provided in the manner for which it was intended. The research on the LiPS program are based on it being provided intensively”. Ms King said she would be surprised if the Applicant reached an age-appropriate reading age, but it was hoped he would be able to read to function as a young adult which would equate to a reading age of 11 or 12. Ms King said there was “more of a chance, than not” that he would reach that reading age, once the decoding skill was mastered.
Ms King was asked whether she knew why Ms Baker from LBLP had initially recommended that the Applicant undertake both the SI and V/V program and Mr Trew had more recently recommended only the SI program (as outlined in more detail in paragraph [90]).[28] Ms King said that Mr Trew had made “a further recommendation”. Ms King said she considered that the SI program was the “most prominent” program for the Applicant, although the V/V program was of value to the Applicant to assist him with his “dual decoding skills” and that she still recommended it “as an adjunct” to the SI program.
[28] Refer letter from Mr Gareth Trew, Acting Centre Director, LBLP dated 5 October 2017 lodged with the Tribunal on 9 October 2017.
Evidence from LBLP
On 26 September 2017, Mr Trew of LBLP administered a Learning Ability Evaluation in relation to the Applicant. Mr Trew stated that the scores indicated that “the underlying sensory-cognitive functions needed for reading and spelling are a significant weakness; it also shows that [the Applicant’s] receptive oral vocabulary and expressive oral vocabulary are within the average range and are a significant strength for him”. The results of these tests included:
(a)Woodcock Reading Mastery Test - ability to decode words quickly and accurately - percentile ranking 0.1;
(b)Slosson Oral Reading Achievement Test - ability to recognise words accurately and quickly - percentile ranking 1;
(c)The Wide Range Achievement Test - ability to spell words in isolation - percentile ranking 0.2;
(d)The Gray Oral Reading Test 4 - reading fluency - percentile ranking 1;
(e)Peabody Picture Vocabulary Test - IV (PPVT-4) - matching pictures with words - percentile ranking 70;
(f)Detroits Tests of Learning Aptitude 4 - word opposites subtest - expressive oral vocabulary - percentile ranking 50.
Mr Trew stated that the diagnostic Learning Ability Evaluation results indicated that the Applicant “may benefit from intensive, daily instruction - 4 hours per day, five days per week - for 8-10 weeks to develop his language and literacy skills. It should be noted that given [the Applicant’s] substantial weakness on multiple measures there may necessarily be multiple rounds of instruction”. Mr Trew recommended that the SI program only be undertaken.
Mr Trew did not appear at the hearing of this matter. Instead, Mr Russell gave oral evidence at the hearing in relation to LBLP’s recommendations. Mr Russell said he had not met the Applicant in person but he had access to the assessment results for the Applicant. Based on that information, Mr Russell said that it was his recommendation that the Applicant undertake the SI program delivered on a one-on-one basis by video conference four hours per day, five days week for eight to 10 weeks.
Mr Russell has a Bachelor of Science in Psychology and a Masters in Special Education. He is not a qualified speech pathologist. He said he had worked at LBLP for about six years and was the Centre Director in Sydney (at Double Bay). Mr Russell said he commenced working at LBLP as a clinician and then moved into a consultant/case manager role, before becoming a Centre Director.
Mr Russell said that LBLP delivered its programs to students with autism “fairly regularly”. He said that the SI program looked to improve the underlying problem.
Mr Russell said that in the information provided to him, he did not see anything to suggest to him that the Applicant should not undertake the proposed program. He accepted that the Applicant had a very complex profile with multiple diagnoses and there was a large difference between his chronological age and his reading age. He said that usually he sees people who are about one or two years behind. He said the fact that the Applicant is so far behind, suggested to Mr Russell that: “[the Applicant] needs to do some sort of program”.
When asked what gains he anticipated or expected someone with the Applicant’s characteristics to make, Mr Russell said that it was “very speculative” but he thought if he undertook an 8 to ten week program, he should make “2 to 3 years gains” in terms of his equivalent reading age. He said he could not be precise in his predictions but he thought it was likely that the Applicant would make these gains. He said the Applicant’s vocabulary test result was good and his word opposites test result was great, so he should be able to pick up the program as those improvements were showing a capacity to learn.
Specifically, Mr Russell said the Applicant should be able to send and read basic text messages to and from his friends. He said the Applicant should be able to read bus and other public transport signs, though he might not be able to read multi-syllable signs quickly. Mr Russell said he could not say that the Applicant will not feel any further frustration about not being able to read things, but “he would achieve more”.
When questioned, Mr Russell said there were other programs available in Australia that would benefit the Applicant. However, it was his opinion that it would be best to develop the Applicant’s underlying cognitive function, being the Applicant’s weakness. Mr Russell said that a non-intensive program would not make “years’ worth of gains, in weeks of instruction”. Mr Russell said that when a person approaches LBLP, they are assessed to check if they are suitable for the program. He said that “we undertake that process to make sure LBLP can help and if not, we would tell them that we aren’t the right people and recommend another program”.
Mr Russell gave evidence that there were no published results available that indicated whether self-delivery or delivery through LBLP Centre was more effective, but he considered that the latter was better. When asked why, he said: “because I see it”.
Mr Russell said there were no other 17 year olds doing programs at the moment. In the last six months, he said there was one 17 year old and about three or four 16 year olds undertaking programs. He said that sometimes it can take older children a little longer to make progress. He said that it is necessary to talk to older children differently and they can experience more frustration than younger children.
Mr Russell said that LBLP work with SPA, but they do not have any formal arrangement with this association.
Coran Williams, Senior Adviser, SPA
Dr Williams was engaged by the NDIA to undertake a literature review as to the effectiveness of the LiPS program. Subsequently, Dr Williams was asked to provide information as to effectiveness of the SI and V/V programs. Dr Williams prepared a literature review which was lodged with the Tribunal on 7 October 2016, and a further statement lodged with the Tribunal on 20 November 2017. She also gave oral evidence at the hearing on 24 November 2017.
Dr Williams stated that she graduated as a speech pathologist in 1988 and has worked continuously since that time. Dr Williams said she has always worked with children. Dr Williams stated that she was a lecturer at Curtin University in Western Australia and has been a Senior Adviser for SPA for the last five years.
Dr Williams identified three studies which provided some support for the LiPS program. Dr Williams stated that the LiPS program was available for purchase and there was no restriction on who may administer it. However, she stated that:
Speech pathologists are uniquely qualified to implement the program as their training includes a focus on sound production, phonemic awareness and the links between sounds and letters.
Dr Williams reported that “a number of other programs address the development of phonological awareness skills, however none include the multi-sensory approach used in the LiPS program”. She cited other programs such as Earobics, Gillon Phonological Awareness Program and Fast ForWord, noting that the evidence relating to Fast ForWord was “strong” but “not in favour of the program”.
Dr Williams stated that the suitability of the LiPS program for any given individual was dependent on the needs of an individual and that the research referred to on page 4 of her literature review suggested that “intervention to develop phonemic awareness … may be beneficial”. Dr Williams stated that “a 15 year old with [ASD] who has poor phonological processing skills and consequent poor reading and spelling skills may benefit from the program”.
In relation to the SI and V/V programs, Dr Williams stated as follows:
The two programs are frequently used together as they address different areas relevant to the development of reading. They share an underpinning strategy based on the development of visual and concept imagery to assist in language development.
…
[SI] addresses decoding ability while [V/V] addresses comprehension. Both may be used in school-based interventions delivered by teachers or paraprofessional staff following training through [LBLP], or in one-to-one clinical contexts. They may also be used in conjunction with the LiPS program…
…
In a randomised control trial (waitlist control), intensive instruction was found to be effective in improving reading comprehension skills in children with autism aged 8 - 14 year (mean 10.7). All children had adequate de-coding skills, but poor reading comprehension. Intervention was delivered by [LBLP]-trained clinicians in one to-one setting for four hours per day, five days per week for ten weeks. Neuro‑imaging showed changes in brain function, with increased activity in neural centres associated with visual imagery. The authors concluded that the results of the study provided strong evidence for the use of the program in children with ASD (Murdaugh et al, 2017). There was no comparison treatment, so it is not possible to draw conclusions as to whether this is the most effective and efficient treatment.
Research articles
The Tribunal was provided with a number of research articles regarding the effectiveness of different literacy intervention programs. The Tribunal has focused its attention on those relating to the SI and V/V programs.
A recent research article in relation to the efficacy of the SI program was published in the Journal of Learning Disabilities in 2017, entitled “Impact of Intensive Summer Reading Intervention for Children with Reading Disabilities and Difficulties in Early Elementary School” authored by Christodoulou et al. from the McGovern Institute for Brain Research and the Department of Brain and Cognitive Sciences at the Massachusetts Institute of Technology, Cambridge, USA (2017 Christodoulou Article).
This article provided a helpful summary of the previous research conducted to evaluate the efficacy of the SI program, as set out below:
“Empirical work evaluating the efficacy of Seeing Stars is limited yet promising. In a study investigating the impact of this reading intervention on brain structure, 11 children (ages 7-11; M = 9.1 years; SD = 1.3) with developmental dyslexia who completed an unspecified number of instructional hours over 8 weeks showed standard score gains for untimed single real word and pseudoword reading, rapid letter naming, reading comprehension, phonemic awareness, and symbol imagery (Kranfnick, Flowers, Napoliello, & Eden, 2011). Although this study did not include an independent control group, these students appeared to maintain their gains 8 weeks later. As part of a study investigating the brain basis of visual processing in dyslexia, 22 students (ages 7-12; M = 9.6 years, SD - 1.4) completed 8 weeks of Seeing Stars and 8 weeks of other math intervention or no intervention in a randomized order, and showed statistically significant improvement for untimed single word reading, untimed pseudoword reading, and phonological awareness during the reading intervention period but not during the combined control periods (Olulade, Napoliello, & Eden, 2013). Remaining studies relied on a single case design (Rauschecker et al., 2009) or used Seeing Stars in combination with other reading programs (Eden et al., 2004; Sadoski & Wilson, 2006).
The 2017 Christodoulou Article reported on further research conducted to test the efficacy of the SI program when implemented as an intensive reading intervention for children with reading disabilities or difficulties (RD) over a six-week (non-academic) summer period. The program was delivered to the research participants in small groups (3 to 5 children per LBLP-trained instructor, assigned by reading level), for four hours per day, five days a week. The research was intended to evaluate, by reference to a randomised control group, whether the SI program had a positive effect on targeted outcomes in symbol imagery, single word and psuedoword reading, and oral reading fluency.
The authors concluded from this research that there were significant benefits of intervention observed on the majority of word reading, pseudoword reading, and text reading outcomes measures, with children who received the intervention showing relative gains (through maintenance or improvement) across the summer. This was in contrast to the children in the control group who exhibited relative stagnation or score declines. The article also stated:
“Both groups declined significantly on speeded real word reading. For the symbol imagery measure, which was most aligned with the content of the intervention, students receiving the intervention improved significantly, whereas students in the control group declined significantly.
…
Overall, there were statistically significant benefits for students receiving the Seeing Stars intervention relative to the students in the nonintervention control group.
Three aspects of the significant benefits are noteworthy. First, although the intervention group improved significantly on two measures, three of the group differences resulted from no pre to post changes in the intervention group versus significant declines in the nonintervention group. Second, within the intervention group there was diversity of benefits, with half of the students showing some gain and half showing no gain [in contrast to control group where 95% of the students failed to exhibit a pre and post- composite gain]...
The Tribunal notes that no significantly higher scores were noted for the participants of intervention group in the pre and post testing of untimed real-word reading (WRMT WI); untimed pseudoword reading (WRMT WA)[29] and the timed pseudoword reading (TOWRE PDE)[30]. The authors commented that it was not anticipated that for several measures, the benefit of the intervention for those measures would be expressed as the absence of a decline that occurred in the group assigned to intervention. The article states:
Notably, students with [reading disabilities or difficulties] do not typically make a year of progress in an academic year, so maintaining standard scores during the summer months (when they may be most vulnerable to reading skill regression) should be considered an index of progress even though students with [reading disabilities or difficulties] did not, on average, close the gap separating them from their typically reading peers.
[29] Refer to the results shown in the third row of Table 3 of the 2017 Chistoloudou Article forming part of Exhibit “A2”.
[30] Refer to the results shown in the fourth row of Table 4 of the 2017 Chistoloudou Article forming part of Exhibit “A2”.
On page 123 of the 2017 Christodoulou Article,[31] the authors state:
Focusing on the standardized word and pseudoword measures (WRMT, TOWRE), performance differences translated to a learning advantage of two months for the intervention group over the nonintervention group.
[31] Page 9 of the article.
The authors stated that when the results of their research were “taken together” with earlier research evaluating the SI program (namely, Krafnick et al. (2011)[32] and Olulade et al (2013)[33]):
...evidence suggests that [the SI program] can improve word-reading trajectories for early elementary school children in an intensive and condensed time frame in small groups.
[32] Krafnick, A.J., Flowers, D.L., Napoliello, E. M., & Eden, G.F. (2011). Gray matter volume changes following reading intervention in dyslexic children. NeuroImage, 57, 733 – 741.
[33] Olulade, O.A., Napeliello, E.M., & Eden, G.F.(2013). Abnormal visual motion processing is not a cause of dyslexia. Neuron, 79, 1-11.

The NDIA contended that the research articles did not provide sufficient evidence that an eight to 10 week SI program was likely to result in a multi-year gain in reading age in a teenager with autism. The NDIA also highlighted that the summary of the 2017 Christoloudou Article prepared by LBLP and posted on its website did not make reference to the number of years’ gain in reading age achieved by the children who participated in the program. The Tribunal notes that the 2017 Christodoulou Article did not provide conclusions or projections about any increase in the average reading age of the children who participated in the program and agrees there are limitations to the degree of support that these articles may offer the Applicant in this case.
The Tribunal also considered further articles which sought to evaluate the efficacy of the related V/V program. One was published in Autism Research on 25 May 2015, entitled “The Impact of Reading Intervention on Brain Responses Underlying Language in Children With Autism” by Donna L Murdaugh et al.[34] (2015 Murdaugh Article). The second article was published by Elsevier Inc on 14 August 2017 entitled “From Word Reading To Multisentence Comprehension: Improvements In Brain Activity In Children With Autism After Reading” by Donna L Murdaugh et al[35] (2017 Murdaugh Article).
[34] Donna L Murdaugh, Hrishikesh D Deshpande and Rajesh K Kana, Department of Psychology and Department of Radiology at the University of Alabama at Birmingham in Alabama, GA, USA.
[35] Donna L Murdaugh, Jose O Maximo, Claire E Cordes, Sarah E O’Kelley, Rajesh K Kana, Department of Psychology, University of Alabama at Birmingham in Alabama, GA, USA and Children’s Heatlhcare of Atlanta, Atlanta, GA, USA.
The 2015 Murtaugh Article used a “translational neuroimaging approach to test the role of a visual imagery-based reading intervention in improving the brain circuitry underlying language processing in children with ASD”. The participants were aged between eight and 13 years and control groups were used in the study. The intervention comprised the V/V program delivered by four hour sessions delivered one-on-one at a LBLP Centre, five days a week for 10 weeks. Following the intervention, the experimental group of children with ASD showed significant increase in activity in visual and language areas and right-hemisphere language area homologues, putamen and thalamus, suggestive of compensatory routes to increase proficiency in reading comprehension. The authors concluded that:
Thus, the findings of this study, which support the principles of dual coding theory [Paivio 2007], suggest the potential of a strength-based reading intervention in changing brain responses and facilitating better reading comprehension in ASD children.
In the 2017 Murdaugh Article, the authors stated:
In general, the ﬁndings of this study indicate the speciﬁc utility of using multiple tasks to assess changes in brain activation by examining reading from single word decoding to paragraph reading. Our results provide compelling evidence for the efficacy of a reading intervention in children with ASD that speciﬁcally targets an area of intact functioning, visual processing, and uses it to teach strategies to aid in improving reading comprehension. A majority of children with ASD appear to fall into a separate category of reading disability than other reading disorders, e.g., dyslexia, speciﬁcally intact decoding but poor listening comprehension. As such, reading interventions should be designed diﬀerently for children with ASD who exhibit this proﬁle than other children with reading disorders (Nation et al., 2006). Our previous research (Murdaugh et al., 2016; Murdaugh et al., 2015) and this current study, lend support for targeted early reading intervention. The new ﬁndings show differential recruitment of brain regions based on task demands, and provide support for the potential of targeted interventions to alter brain activation in response to positive gains in treatment.
In the 2017 Murdaugh Article, the authors reported that the intervention group had a significantly larger change in reading comprehension than the control group.
The two articles did not include any information about whether the children with ASD who participated in the related V/V program experienced a change expressed as an increase in their equivalent reading age.
In conclusion, the Tribunal is satisfied that the research that has been undertaken in relation to the SI program and the related-program V/V as referred to above, is suggestive at an overall level that positive gains had been experienced from children with ASD from such interventions, but the results are far from definitive for the purpose of this application.
It is of some concern that the results from the research in relation to the SI program as reported in the 2017 Christoloudou Article showed mixed results with about half of the children with ASD showing an increase in certain areas, while the other half showed no significant increase. At the beginning of paragraph [32], the authors of this article also characterised the maintenance of the skill levels of the intervention group with the pre and post intervention testing in relation to three of the reading subtests, as distinct from any increase, as “progress” by comparing it to other students who experienced what the authors described as a “summer slump”. For the purposes of this application, it may warn against improvement in all aspects of a participant of the program’s literacy skills.
There appeared to be a clearer picture of progress with the related V/V intervention in terms of neurological evidence showing increased activity in different areas of the brain pre and post participation in the intervention. However, the results were expressed in such a way that it was difficult to glean from this research whether the participants of the program experienced an increase in their equivalent reading age as a result of undertaking the program.
Although the research in relation the SI program is not as definitive as it first appears, upon close examination of the subtest results, it did show support for overall positive benefits for children with ASD. Mr Russell considers that the program is likely to have positive benefits for the Applicant and he is expected to gain two to three years in his equivalent reading age over the next eight to ten weeks. As mentioned, LBLP gave evidence that it has delivered its programs to people with autism in the past, including four to five teenagers in the last six months. Mr Russell had indicated it was rare to terminate a program part way through due to a lack of progress being made.
The practicing speech pathologists who gave evidence in this case highlighted the inherent difficulties of being able to predict outcomes with respect to such programs in relation to children with ASD due to the individual nature of ASD. Despite this, neither of those experts gave evidence that they were certain that the program would not work.
Instead, Ms Woodward accepted at the hearing that there was a “definite possibility” that the Applicant would benefit from the SI program (noting that in her earlier report, Ms Woodward considered that the Applicant should concentrate his efforts on compensatory supports instead, such as assistive technology). Ms Woodward was reluctant to go any further than this because she was concerned about what she perceived to be the Applicant’s lack of response to the previous literacy programs.
The Tribunal considers that this concern was not justified given that those previous programs were not delivered on an intensive basis.
The Tribunal also accepts the Applicant’s mother’s evidence that the Applicant’s interest in written text and his increased ability to be able to read some simple words improved after he undertook the previous LiPS program, albeit on an intermittent basis. The Tribunal accepts the evidence of Ms King that to maximise the prospects of the SI program being successful, it was important for it to be delivered under an intensive program. For this reason, the Tribunal considers that the Applicant’s experience with those previous programs should not be seen a negative indicator as to why the SI program delivered on an intensive basis might not work. I accept the evidence given by the Applicant’s mother that there were also significant distractions in the home that were present previously, that are unlikely to be as prominent at the present time.
Evidence was given at the hearing that motivation was an important factor determining whether the SI program was likely to be successful. The Tribunal heard from the Principal from the Applicant’s school that he considered that the Applicant would be able to concentrate and focus sufficiently for four hours each day to be able to undertake the program as he was required to do so during his days at school. The Applicant’s Principal said that he considered the Applicant to be an articulate and intelligent boy.
There was a divergence of views of the expert witnesses who gave evidence in this matter about the likely level of gains the Applicant may experience from the program. Mr King was most hopeful and considered that the Applicant’s reading age may lift to 10 or 11 years. Ms Woodward’s did not express her view about this and Mr Russell’s view was somewhat more conservative, indicating that it may lift two or three years (to nine or 10 years). The Tribunal preferred the evidence of Mr Russell on this issue, given his recent and more extensive experience in running these programs for LBLP clients, including to children who have ASD.
In consideration of the matters set out in paragraphs [54] to [129] the Tribunal is satisfied that in the context of a situation that is inherently difficult to predict, due to the variable nature of the impairment causing the disability, the SI program is likely to benefit the Applicant such that it is expected that he is likely to experience gains of two to three years in his equivalent reading age. The Tribunal is satisfied that this is likely to provide him with a greater ability as a young person to undertake daily tasks such as catching public transport, reading and sending basic texts on his phone, ordering food at cafe or reading some information on labels on products.
It appears from the evidence that an eight-week program (four hours a day, five days a week) SI program (noting that a program duration of up to ten weeks was also proposed), is sufficiently intense and was previously shown in research to provide benefits in some areas to some children with ASD. Accordingly, I consider that an intensive four hour per day, five day per week program for eight weeks’ duration is likely to be effective.
Due to the unpredictable context arising from the nature of the Applicant’s impairments, it was only after considerable deliberation that the Tribunal reached a point of satisfaction that the requirement under subsection 34(1)(c) was met in relation to the proposed SI program.
For this reason, if the Applicant undertakes the proposed SI program this summer and no reasonable progress is made after comparing the Applicant’s results from pre and post intervention testing, the Tribunal makes a non-binding observation that this would seem to reveal that subsection 34(1)(c) of the Act is not able to be satisfied with respect to any contemplated inclusion of this or other similar literacy programs (such as the V/V program) in future NDIS plans for this particular Applicant.
Section 34(1)(d) - 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 supports
If the SI program is delivered by LBLP out of its Melbourne Centre (which is closest to the Applicant’s home) four hours per day, five days a week for eight weeks, the total cost will be $20,800. If it is delivered on this basis for ten weeks, the total cost will be $26,000.
I am satisfied that if the Applicant is to undertake the SI program, that it should be delivered by LBLP. This will allow for the progress of the Applicant to be continuously monitored and for customisation to take place. Given the complexity of his situation, this may not occur as effectively if the program is delivered by an external therapist or teacher with less experience with the SI program. In this regard, the Tribunal notes that the Principal of the Applicant’s school informed the Tribunal that the SI program was not a literacy program which had been delivered at the school previously, from which it may be inferred that the present teaching staff or aides at the Applicant’s school, are unlikely to have had any working experience of delivering the SI program.
I have some concerns regarding the hourly rate charged by LBLP, being $130 per hour, as the staff delivering the service are not required to hold any tertiary qualifications. All that is required is that they complete 80 hours of internal training before LBLP commences to charge for their services at this rate. However, the Tribunal did not have any evidence presented to it to understand LBLP’s overheads that might apply and for this reason, it is unable to find that that this support did not represent value for money for this reason alone. Further financial evidence was required before such a finding could be made.
It is also important to measure that cost against the benefits which are hoped to be achieved by the Applicant by undertaking the SI program. If the expectations of Mr Russell are met, and the Applicant’s equivalent reading age is increased by two or three years, the Tribunal is satisfied that $20,800 represents good value for money.
Other programs were identified during the evidence given by some of the experts. However, there were no costings for those programs presented to the Tribunal and so no meaningful comparison could be made of this program with other alternative supports.
In conclusion, I am satisfied that, in this case, the proposed support in the form of the SI program, if undertaken for four hours per day, five days a week for a total of eight weeks at the cost of $20,800, represents good value of money. The Tribunal is satisfied that the requirement under subsection 34(1)(d) of the Act is met.
Section 34(1)(e) – Whether 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
The Tribunal notes that the Applicant’s primary informal supports comprise the support offered by his mother on a daily basis. The Applicant’s mother has another child with ASD, reportedly with high care needs, requiring her care and support. The father of the Applicant is not involved with the care of or parenting of the Applicant. This family situation is complex and challenging. For this reason, the Tribunal considers that it is not reasonable to expect that this proposed support be delivered by the Applicant’s family, informal networks or the community. The Tribunal is satisfied that the requirement under subsection 34(1)(e) of the Act is met.
Section 34(1)(f) - Whether the support is most appropriately funded or provided through the NDIS, and is not more appropriately funded or provided through the education system
The NDIA contended that this requirement is not met because literacy, including reading, is a core skill that the education system provides to all children, including those with disabilities, by making the reasonable adjustments as required by law.
The Applicant contended that the supports sought would have a significant impact of the Applicant’s social development and participation by increasing his functional capacity in key areas of his life. The Applicant’s representative accepted that these improvements may also improve his educational outcomes, but it did not follow that those supports should be funded by the education system.
Schedule 1 of the Rules at paragraph 7.13, as also reflected in clause 10.8.5 of the NDIA Operational Guidelines, provides as follows:
The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student’s disability on their activities of daily living (that is, those not primarily relating to the education or training attainment), such as personal care and support, transport to and from school, and special supports for transition from school education to further education, training or employment that are required because of the student’s disability. Any supports funded by the NDIS will recognise the operational requirements and educational objectives of schools
Paragraph 7.14 provides:
The NDIS will not be responsible for personalising either learning or supports for students that primarily relate to their educational attainment (including teaching, learning assistance and aids, school building modifications and transport between school activities).
The question in an application like this about where the line lies between the responsibilities of the NDIA arising under the NDIS and the responsibilities of other departments and agencies under other general systems, such as the education system, is extremely difficult. Such a determination is difficult because the significant overlap in the objectives of the two systems and also overlap in the intended benefits to be achieved by the provision of the supports in question.
In this application, if the proposed support improved the Applicant’s ability to read, even by raising his equivalent reading age by two or three years, this would have a significant impact on the Applicant’s ability to independently undertake simple daily tasks like the kind referred in paragraph [130] or to improve his readiness for employment. It may also appear to impact positively on the Applicant’s ability to read and write while he is at school and at least in theory, appear to contribute to his educational attainment. It is important, however, for me to closely consider the particular circumstances of the Applicant to assess the degree to which this holds true.
In this case, the Applicant presently has an equivalent reading age of between 6 and 7 but he is about to complete Year 10 at high school and commence either VCE or VCAL next year. Being at such an advanced point in his secondary education, the Applicant’s primary challenge at the present time, with such a limited ability to read and write independently, is to gain an understanding of the advanced curriculum at the Year 10, soon to be Year 11 level. I consider that this need to understand the advanced curriculum is appropriately characterised as the Applicant’s present intended educational attainment.
This was evident from the information provided by the Principal of the Applicant’s school. The Principal was adamant that the school continue to use the allocation of the Victorian Government PSD funding with respect to the Applicant to provide individual aides for the Applicant for as many classes as possible. He said the Applicant had a critical need to use the aides as this was the only way he would be able to access the curriculum to enable him to meet the requirements of his VCE or VCAL certificate.
This Tribunal considers that the Applicant’s intended educational attainment is now different from what it was when the Applicant was in primary school. At primary school level, I would accept that a key intended primary level educational attainment was to read and write. It follows that if the Applicant was making the present application for this same support while he was in primary school, I am likely to have made a different decision to that which I made on 4 December 2017. However, the Applicant has long since moved on from studying at the primary school level.
Instead, the Tribunal considers that the Applicant’s present intended current educational attainment is for him to understand the senior secondary curriculum sufficiently for him to obtain his leaving certificate. It is now not an option for the Applicant to seek to read and write independently while he is at secondary school attending classes, because of the very significant gap between his current reading age and that of his peers. The Applicant is required to rely on the use of compensatory strategies to bridge that gap in order to access his year-level curriculum and I expect that will be the case for the next two years, based on the evidence of the experts, the literacy assessment results and the views of the Principal of the Applicant’s school.

The Tribunal considers that, in this application, the Applicant’s proposal to build his capacity to read and write by undertaking the specific literacy program is on a separate track to his current educational pursuits at the secondary level. His interest in building his low level of capacity to read and write to a basic level is predominately driven by his desire to be able to independently undertake daily tasks that require those skills, as described by the Applicant’s mother in her statement dated 5 October 2017[36] and the further statement provided by her at the hearing on 23 November 2017.[37]
[36] Lodged with the Tribunal on 9 October 2017.
[37] Refer Exhibit “A3”.
Rule 4(2) of the Act setting out principles guiding actions under the Act and provides that:
People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
The Applicant seeks the proposed literacy program as a support under the NDIA to assist him to obtain a basic level of reading functionality to live independently as a young person and to do such things as being able to hold a driver’s licence once he can read and understand road signs competently, order food at a restaurant or read the labels on products in the supermarket or in other places.
For these reasons, in the particular circumstances of the Applicant, I am both satisfied that this support is a support that is most appropriately funded under the NDIS and that it is not more appropriately funded under the education system. Accordingly, the Tribunal is satisfied that the requirement under subsection 34(1)(f) of the Act is met.
CONCLUSION
For the reasons stated above, in the particular circumstances of this Applicant, I consider that the mandatory requirements under section 34(1) of the Act were met in relation to the proposed SI program and that it is a reasonable and necessary support under s 34 of the Act. Accordingly, I vary the reviewable decision to add as an additional support to the Statement of Supports in the Plan Under Review, the SI program to be delivered by the LBLP Centre in Hawthorn, Victoria, via one-on-one video conferencing, four hours per day, five days per week for a consecutive duration of 8 weeks.
To assist the NDIA to comply with the undertaking provided and in light of the decision of the Tribunal as set out above, the Tribunal recommends that the Statement of Supports, to be approved by the NDIA and included in the Pending New Plan for the Applicant, should include the program referred to in paragraph above, to commence on 11 December 2017.
The Tribunal also recommends that this program be commenced by the Applicant on condition that a full interim progress assessment of the Applicant will be conducted by LBLP, at the end of the first four completed weeks of the program, to ensure that reasonable progress has been made by the Applicant in relation to his reading and writing skills and if not, the program is to be immediately discontinued by the Applicant exiting the program and no further service fees are to be paid to LBLP.
I certify that the preceding 157 (one hundred and fifty seven) paragraphs are a true copy of the written reasons for the decision of Member K. Parker

..........[sgd]..............................
Associate
Dated 21 December 2017

Date of hearing:
23, 24 & 29 November 2017

Advocate for the Applicant:

Solicitor for the Applicant:

Non-Legal Representatives for the Applicant:

Mr Graham Wells, Victorian Legal Aid

Mr Tim Noonan, Victorian Legal Aid

Mr Daniel Bakewell, Mr Lance Youston,
Rights, Information & Advocacy Centre

Advocate for the Respondent: Ms Sarah Varney of Counsel

Solicitors for the Respondent: Mr Stephen Fagg, Ms Lee Davids
NDIA

Date of hearing:	23, 24 & 29 November 2017
Advocate for the Applicant: Solicitor for the Applicant: Non-Legal Representatives for the Applicant:	Mr Graham Wells, Victorian Legal Aid Mr Tim Noonan, Victorian Legal Aid Mr Daniel Bakewell, Mr Lance Youston, Rights, Information & Advocacy Centre
Advocate for the Respondent:	Ms Sarah Varney of Counsel
Solicitors for the Respondent:	Mr Stephen Fagg, Ms Lee Davids NDIA