ZHTH and National Disability Insurance Agency

[2023] AATA 3593

ZHTH and National Disability Insurance Agency [2023] AATA 3593 (6 November 2023)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number(s):2022/0767      

Re:ZHTH  

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:The Hon Pru Goward AO, Senior Member

Date:6 November 2023

Place:Sydney

Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review dated 10 January 2022 and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency in accordance with the following direction:

(1)  to include the following reasonable and necessary supports in the Applicant’s Plan over a 12-month period:

(a)20 hours of Applied Behavioural Analysis Therapy per week;

(b)1.5 hours of program supervision per week;

(c)4 hours per week of transport at the Level 2 Therapist rate of $86.79 and 2 hours per month at the Clinical Supervisor rate of $214.41.

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

The Honourable Pru Goward AO, Senior Member

CATCHWORDS

NATIONAL DISABILITY INSURANCE SCHEME – reasonable and necessary supports – value for money – effective and beneficial – current good practice - reasonable expectation of families, carers, informal supports and the community – decision under review set aside and remitted with direction

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)(c)(ii)
National Disability Insurance Scheme Act 2013 (Cth) ss 34, 100, 101
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

CASES

PYQJ and National Disability Insurance Agency [2023] AATA 37

SECONDARY MATERIALS

Operational Guidelines: Including Specific Types of Supports in Plans Operational Guideline- Overview; the Guidelines

Oxford English Dictionary (2^nd ed, 1989)

REASONS FOR DECISION

The Honourable Pru Goward AO, Senior Member

6 November 2023

INTRODUCTION

1. ZHTH (the Applicant) is a five-year-old boy diagnosed with Autism Spectrum Disorder (ASD) of level 3 severity and developmental delay. He was accepted as a participant in the National Disability Insurance Scheme (the Scheme) in October 2021 and has a similarly affected older brother who is also a Scheme participant.

2. On 5 October 2021, the National Disability Insurance Agency (the Respondent) made a decision under part 2, division 2 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), to approve a NDIS Plan for the Applicant, containing a statement of participant supports (Original Decision).

3. Pursuant to the Original Decision, the Applicant's Statement of Participant Supports provided $66,829.56 in self-managed capacity building supports for the period 5 October 2021 to 5 October 2022.

4. On 22 December 2021, the Applicant sought internal review of the Original Decision.

5. On 10 January 2022, the Respondent made a decision under s 100(6) of the NDIS Act to confirm the Original Decision. The outcome that the Applicant sought from the internal review was:

   To increase [the Applicant's] Capacity Building budget to include a total of $128809.20 for ABA Therapy and $9685 for Occupational Therapy.

6. The Respondent was not satisfied that this requested additional support was reasonable and necessary within the meaning of s 34 of the NDIS Act. Specifically, the below requirements were not met:

   a) s 34(1)(c) of the NDIS Act (value for money) and

   (b) s 34(1)(d) of the NDIS Act (effective and beneficial), and

   (c) s 34(1)(e) of the NDIS Act (reasonable expectation of other supports),

7. On 29 January 2022, the Applicant applied to the Tribunal for review of the internal review decision.

8. At the commencement of the hearing held on 22 August 2023, the Respondent’s counsel confirmed the reflection in the Respondent’s Statement of Facts, Issues and Contentions (‘SOFIC’), that the original decision be set aside, stating “that decision was not right”. Particularly, Applied Behaviour Analysis (ABA) therapy was now accepted as a reasonable and necessary support. The Tribunal was also advised that the additional two hours of occupational therapy (OT) for report writing requested by the Applicant were agreed to by the Respondent and therefore no longer in contention. These additional hours, no longer being in dispute, are included in this decision as reference-only for the parties. The only issues in contention are how many hours per week of ABA therapy should be provided, the amount of supervision required for that therapy and the attendant transport costs. It is not disputed that a Level 2 therapy assistant is required.

LEGISLATION RELIED UPON

The NDIS Act

1. Relevant parts of the NDIS Act require that in order for a requested support to be funded, it must satisfy s 34 of the Act; that is, the support being requested is both reasonable and necessary. The Applicant also relies upon s 101 of the Act. Additionally, Supports for Participants Rules 3.1-3.4, Rules 7.8 and 7.9 apply.

10.The parties agree that s 34 (1) (a and b) are met, viz:

(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.

11.In this matter, two sections of s 34 (1) are in dispute; (c), requiring that a funded support be value for money; and (d) requiring the support will be, or is likely to be, effective and beneficial. Sections 34 (1) (e) requiring that the funding takes account of what it is reasonable to expect families, carers, informal networks and the community provide and (1) (f), requiring that the support be most appropriately funded or provided though the NDIS, are not in dispute once the other requirements of s 34 have been met. The Tribunal notes the Respondent’s SOFIC included submissions about s 34 (1) (e), but that during the hearing, these were not relied upon by the Respondent and the Tribunal accepts that the Respondent does not pursue this requirement.

12.The Applicant has also relied upon section 101 of the NDIS Act, which provides for the effect of later decisions before an AAT review is completed, specifically:

(1) If:

(a) a request is made for review of a reviewable decision; and

(b) before a decision on the review is made, the reviewable decision is varied;

the request for review is taken to be for review of the reviewable decision as varied.

(2) If:

(a) a request is made for review of:

(i) a decision under subsection 33(2) to approve the statement of participant supports in a participant’s plan; or

(ii) a decision under subsection 47A(1) to vary a participant’s plan, where the variation is a change to the statement of participant supports; and

(b) before a decision on the review is made:

(i) the CEO varies the plan under subsection 47A(1) and the variation is a change to the statement of participant supports; or

(ii) a new plan for the participant comes into effect under

section 37; then:

(c) if subparagraph (b)(i) applies—the request is also taken to be a request for review of the decision to make the variation covered by that subparagraph; or

(d) if subparagraph (b)(ii) applies—the request is also taken to be a request for review of the decision to approve the statement of participant supports in the new plan.

SUPPORT FOR PARTICIPANT RULES

13.Part 3 of the NDIS Supports for Participants Rules, (Assessing Proposed Supports), provides further detail about the considerations which would satisfy the requirements in s 34. For those requirements in dispute, the Rules say the following:

Rule 3.1: Criterion under s34(1) ( c) - Value for Money

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

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

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

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

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

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

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

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

(f) whether the support will increase the participant’s independence and reduce the participant’s need for other kinds of supports (for example, some home modifications may reduce a participant’s need for home care).

Rule 3.2: Criterion under s34(1)(d) - Effective and beneficial and current good practice

15.In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

(a)     published and refereed literature and any consensus of expert opinion;

(b)     the lived experience of the participant or their carers; or

(c)     anything the Agency has learnt through delivery of the NDIS.

In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary, seek, expert opinion.

General criteria for supports, and supports that will not be funded or provided

16. The requested support must also satisfy the requirements of Rule 5.1 and 5.2 of the Support Rules. This is a general requirement which stands apart from s 34 and specifies the conditions under which a support will not be funded. For completion the rules are as follows:

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

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

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

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

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

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

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

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

Other Materials Relied Upon

17.The parties appear not to have relied upon the Operational Guidelines (supports for participants) for further assistance in determining this matter, other than for Rule 3.1, value for money.

EVIDENCE

18.The Tribunal has had regard to various material before it, including:

·Joint tender bundle filed on 22 August 2023 (This bundle includes the documents filed in the original bundle of evidence on 15 August 2023 and the below materials filed by the Applicant on 21 August 2023:

(a)  Hills Paediatrics Developmental and Behavioural Clinic report

(b)  Lizard Centre Schedule of Support Quote

(c)   Parent Statement of Applicant’s mother

(d)  Applicant’s Reply to Respondent’s Statement of Facts, Issues & Contentions

(e)  Undated Notification of extension of NDIS Plan

BACKGROUND

19.The Applicant’s mother advised the Tribunal that the child began receiving ABA therapy in February 2021, for twelve hours per month. After some early promising results, this was made more intensive in July and August 2021, during which time the Applicant received 88 hours per month (22 hours per week) ABA therapy. Both mother and therapist considered he had progressed in skills acquisition as the intensity of ABA therapy increased.

20.In September 2021, ABA therapy was reduced to 66 hours per month (14 hours per week) due to Covid lockdowns and, according to the Applicant’s mother, his rate of progress slowed. In October 2021, when no funding for ABA had been provided in the Applicant’s first plan, the mother financed further ABA therapy and considered his progress improved again when the hours of therapy increased.

21.The Parent Statement provided to the Tribunal on 21 August 2023 states that in the last 6 months, the Applicant has had approximately 25 hours of home-based ABA Therapy per week and experienced extraordinary progress. This includes, inter-alia, being able to say “no” and “help” without prompt, making eye contact and following some verbal commands.

THE ISSUES

22.The parties agree that ABA Therapy is beneficial for the Applicant and that it be provided by a Level 2 (L2) therapy assistant. The issues in dispute are how many hours of therapy per week are reasonable and necessary, (particularly for optimal impact on the child’s development at his age); how much supervision of the therapist is required; and how transport costs for the therapist and supervisor are accommodated.

CONTENTIONS

23.The Applicant contends that 30 hours ABA Therapy and 2.5 hours of Program supervision and transport costs (or in the alternative, per week 25 hours ABA Therapy and 5 hours Program Supervision and transport costs, as per the updated Lizard Centre Schedule of Support Quote, August 2023) are reasonable and necessary.

24.The Respondent contends that 15 hours of ABA Therapy per week should be provided and in addition, given the therapy is to be provided by a Level 2 therapist, that 1.5 hours of program supervision should also be provided, at the rate of $214.41.

25.The Respondent has made no contentions about transport costs, other than there not being sufficient evidence to decide the appropriate amount for transport costs.

26.The Applicant considers transport costs of 5.5 hours per week for the L2 therapist, paid at the rate of $86.79, should be included, and 3 hours per month for the supervisor, paid at the higher rate of the supervisor’s time, being $193.99 per hour.

27.This decision will address contentions about the number of therapy hours (intensity of therapy) required and, following that, contentions about transport costs.

EVIDENCE

Intensity of Therapy

28.The Applicant provided significant testimonial evidence from the child’s mother that his rate of improvement increased with the number of hours of ABA therapy each week. This was supported by the Lizard Centre, which provided supporting graphs and detailed measures of the skills the child acquired over the periods of therapy.

29.The Respondent tested the mother in cross examination on the extent to which she relied upon the advice and drafting assistance of the Lizard Centre in preparing her statement for the Tribunal., There is no doubt from email exchanges provided to the Tribunal, which formed the basis of some cross examination, that the mother relied significantly on the Lizard Centre in presenting her written case for funding to the Respondent. She was referred to an email from the Lizard Centre which included the following excerpt:

Hi, [mother’s name], please see attached letter with few additions. This copy includes Ms R’s suggestions as well. I have added a separate document, just for your read, to assist you in answering to the planner. Kind regards,

30.The mother considered the Lizard Centre had essentially helped her with grammatical expression, but the email evidence suggested the Centre also provided information about the child’s progress and how to present the information most advantageously.

31.The mother’s obvious reliance on the Lizard Centre did not, in the Tribunal’s view, detract from the mother’s observations about her child’s progress demonstrated in her oral evidence. She described her son’s progress over the months of 30 hours per week ABA therapy, over five or six days each week for approximately three to four months in 2021, when the child was three years old, from a child who:

“never even looked at other children”, with “no communication skills at all…no imitation of any gesture, no eye contact…not able to understand any verbal command, even command by gesture…he was just confined into his own world”

to, as she went on during examination to describe his improvements over those four months of therapy:

“He also started to say things, so that was the first time he started to say a lot of things. We never knew that he knew so many animals… his eye contact started improving. His responding to his name started improving. He started to seem to slowly connect to the world other than his own world that he had created for himself. He slowly to participate in social games, for example. If we would pretend to catch him he would be running, he would be giggling, he would be looking at us, so we started to realise that he’s understanding that’s the game.”

32.The mother described the child’s further progress when he received 25 hours per week of ABA therapy over a six-month period, in similarly positive terms. Conversely, she claimed deterioration in his skills at times when his therapy hours reduced:

“So in past two or three years every time he would do it for some while and then because of funding restraints we’ll have to cut down to 15, to 10 18, to even 10. And every time he was doing less hours straightaway there was a reduction in progress, he was often losing skills”.

33.The mother advised the Tribunal that when the Applicant’s therapy funding ran out, the family paid for additional hours of therapy.

34.The advice in oral evidence to the Tribunal of the geneticist and paediatrician, Dr Kenneth McClean, was that parents, or those closest to the child, are likely to have some perceptual bias in favour of improvement, that is, as we would usually understand it, belief that the treatment was effective based on hope rather than evidence. While I understand the argument, it is an observation about the risk of bias in general, rather than for this particular mother, since Dr McLean did not know this mother. The issue in this case is not whether the child improved over the course of intensive therapy months, which seems undeniable, but rather whether the additional hours of therapy being sought represented value for money (satisfying s 34 (1) (c)), that is, by how much did the child improve during this period of therapy and to what extent was this the result of the additional hours of ABA therapy or the child’s natural development at his age. The significant resource implications of providing the additional hours of requested therapy (and more specifically the need to ensure the financial sustainability of the NDIS, as required by the Act) are such that parental observations, no matter how ostensibly objective, were insufficient evidence to satisfy the Tribunal and required independent corroboration.

35.Independent evidence provided by the Applicant to support the claim that the child had benefited from increased intensity of therapy and that therefore 25 hours per week of ABA therapy was a reasonable and necessary support, was drawn from the following sources:

1) The quantitative assessments of performance outcomes identified by the Lizard Centre and depicted in a single graph,

2) A list of performance measures, detailing qualitative improvements, provided by the Lizard Centre and

3) Oral evidence of the Applicant’s senior therapist, Ms R (and, to a limited degree, the evidence of the Mr B).

36.The Respondent also relied upon the expert reports of Dr MacLean and Assistant Professor Sandbank. The Respondent further relied on the absence of evidence about the impact of 15 hours of ABA therapy on this child to contend there was no evidence that 15 hours therapy per week was insufficient.

37.The Tribunal will deal with each source of evidence in turn in the following paragraphs, after addressing the issue of witness reliability.  However, the Tribunal first addresses the independence, and therefore the reliability, of advice provided by the Lizard Centre staff.  

38.In cross examination, Mr B was challenged about the advocacy tone of the Centre’s advice about program planning, which it is required to provide to the Respondent. The Respondent asked him whether the Centre’s comment that:

‘We need to make this section strong’, … almost takes on an advocacy flavour, doesn’t it?

Mr B: “we want to make sure that it’s clear as to why we’re making the recommendation that we do, not advocacy.”

39.The Tribunal considers that even the most professional organisation will wish to advocate for its services and appreciates that conflicts of interests for companies like the Lizard Centre are inevitable. The Tribunal recognises the risk of confirmation bias for the Lizard Centre but considers this was tested by the Respondent and accordingly, the probative value of the Lizard Centre’s evidence has been necessarily qualified. 

40.Similarly, the Lizard Centre’s reliance on templates for report writing, also tested in cross examination by the Respondent, would be a usual part of providing reports efficiently and in a standard form, notwithstanding that information particular to the subject of such a report is critical and must be provided with appropriate care and rigor.  The Tribunal does not consider the use of report templates to be critical to the evidence and, notes that, although Mr B was a credible witness, he was not directly associated with this Applicant and therefore could make only a limited contribution to the Tribunal’s decision making. 

41.In reaching its conclusions, the Tribunal has relied more on the clinical data and analysis provided by the Lizard Centre’s Ms R, Behavioural Support Specialist. Ms R was a straightforward and positive witness, although confirmational bias (and possibly conflict of interest) as recognised in the matter of PYQJ and National Disability Insurance Agency [2023] AATA 37, somewhat compromised her reliability. As the Respondent said in closing submissions, Ms R provided credible evidence, but “she has taken a selective view”.

42.The evidence of meta-analyses provided by Assistant Professor Micheal Sandbank, as well as the expert clinical evidence provided by geneticist and paediatrician, Dr Kenneth MacLean, were of probative value but qualified in the usual way by, in Dr MacLean’s case, being unable to see the child, and in both their cases, the limitations of applying conclusions about appropriate intensity of therapy which have been drawn from research, to a particular child.  Dr MacLean was an impressive clinical witness, who demonstrated great understanding of the complexity of treating a child with these conditions and the role of parents in caring for such a child.

43.Overall, the Tribunal finds itself relying on the oral evidence of witnesses who are all, in some way, compromised, and whose evidence about the most appropriate intensity of therapy consequently has less than perfect reliability. For instance, the Tribunal finds, for the reasons already explored, that the evidence of the mother, while sincerely held, to be of modest probative value in determining the number of optimal hours of therapy.

44.In these circumstances, the Tribunal considers it is best guided by the population research studies, informed by clinical considerations about the age of, and degree of impairment suffered by this particular child, and any outcome measures that could be provided by the child’s therapist, the Lizard Centre, in its progress reports.

45.The oral evidence provided by the witnesses, the mother and therapist who had firsthand experience of the child, while confirming that ABA therapy had provided benefits to the child, is not, for the reasons previously given, of great probative value in determining the reasonable and necessary hours of therapy.

The Progress Graph

46.The Lizard Centre provided a Program Progress Statement on 30 November 2021, which analysed the Applicant’s development over six months of ABA. This was tendered as evidence of the impact of more intensive therapy on the child’s skills acquisition. The Statement advised that the Applicant began with an average of 12 hours of therapy (in March 2021), provided in home and in centre. In July, his hours increased to an average of 88 hours per month (he received 98 hours in July and August, with a dip to 66 hours in September due to lockdown “restraints”). The Tribunal notes that in only two of those months did the child receive the equivalent of 25 hours therapy per week, in line with the Applicant’s current request.

The Report says: Since this time, we have seen a large increase in his skill acquisition, which directly correlates to the number of therapy hours he has received.  This is shown in the two graphs below.

47.The Respondent cross examined several witnesses about the significance of the graph charting the acquisition of new skills. At first glance the graph appears to be overly simplistic and the basis of the vertical axis representing skills acquisition, is not explained.

48.Assistant Professor Sandbank, who appeared for the Respondent as an expert witness in the meta-analysis of ABA studies of effectiveness, was asked to comment on the graphs and observed:

“It’s difficult to interpret, because I’m not aware of what measure is being used in terms of acquisition of new skills per month. And so it’s hard – it’s difficult to interpret what potentially is being shown in terms of change”.

49.The Respondent cross-examined the Lizard Centre’s Mr B, about the factual evidence to support the chart representing the acquisition of new skills. Mr B told the Tribunal he:

“can’t speak to the raw data…the data points would be generated from the digital data platform”.

50.Later, the Applicant’s senior therapist, Ms R, told the Tribunal the data points were collected for a range of skills and recorded digitally. The Tribunal accepts that the Lizard Centre had collected data which they had combined into a crude measure of skills acquisition and that this chart demonstrates that there had been some progress in skills acquisition in those six months.

51.Ms R explained that the rate of skill acquisition lagged behind the increase in hours of therapy “because he had all that time doing it before”, which the Tribunal understands to mean the cumulative effect of repetition.

52.Dr MacLean interpreted the graphs with caution for other reasons:

“it’s tricky to compare skill acquisition because the period prior to June is small and it is difficult to assess his response to different hours of therapy. ..improvement is clear, but the differential within that 15-25 hours per week band is difficult”. 

53.In cross examination Dr MacLean was asked whether the chart demonstrated a “clear, objective response”, to which he replied;

“whether that represents the incremental nature of the differing hours is a very challenging aspect to unpick”

54.Furthermore, Dr Maclean cautioned that the development of children according to their chronological age could not be overlooked as a factor and:

“what I don’t sight within the documents, and this is not taking away from Ms ZHTH’s statement, is accompanying reports form the psychologist, and that is to say independent reports demonstrating skill gains as related to chronological age and developmental age… “that is to say normative data for age or for developmental level”.

55.In cross examination, Ms R agreed they had not reported on those weeks when the Applicant was receiving 15 hours ABA therapy per week, and that the progress graphs were more than a year and a half old. Upon being asked why she had not provided an updated progress report, as suggested by the Applicant’s mother, Ms R admitted to the Tribunal:

“at the time he was doing difficult programs, so he didn’t have the level of acquisition he did at the point of this report, so I suggested that we don’t spend extra money to write another report that doesn’t show as strongly that he is progressing”.

56.This was consistent with an email exchange between Ms R and the Applicant’s mother about updating the progress report data, where Ms R wrote:

I will have a look at the graphs today and see if the more recent data support (emphasis added) our point, and if so, let’s update the report. And if not, I think it would be better to leave it as is. I will get back to you once I look at the graphs.

57.When asked whether there were graphs that showed the Applicant’s skill acquisition in months where he had fewer hours of therapy, Ms R replied:

“I did write to [the Applicant’s mother] that I had a look at the graphs and it shows a similar pattern of hours versus skill acquisition, so I’m guessing that I did make those graphs, so I probably have them somewhere.  I just didn’t submit them anywhere”.

58.The Tribunal finds, on the evidence provided, that the charts depicting the child’s progress, while a crude indicator of the benefits of intensity, is of limited use to the Tribunal and alone constitutes insufficient evidence. The limitations of the progress chart identified during the hearing, were that it:

a)Represented a period almost two years before the hearing, a significant time gap in the life of this very young child;

b)covered only a very short period of time;

c)did not provide data on periods of lower intensity for any significant length of time;

d)only provided data for two months on the requested therapeutic intensity of 25 hours a week and;

e)was not standardised against the child’s chronological age;

f)Further, an updated progress chart was not provided because, as Ms R admitted, she did not consider it would assist the Applicant’s case. She told the Tribunal she had withheld the information because the child had just begun a more complex phase of therapy and that the Respondent might not understand all the complexities of the information. As she said in cross examination:

“I feel like the NDIS don’t have a brilliant picture of exactly how therapy works, like, specifically, and I wouldn’t want to give them a snapshot that looked poor based on [the mother’s] request. Sure, if  I had a request from NDIS to be, like, “Hey, give us all the graphs right now,” I would, but I wouldn’t want them to misinterpret how he’s going based on a poor graph for one – for one or two programs.”

59.While her explanation is in one sense, understandable, it also diminishes her overall credibility and leaves the Tribunal with little information about the impact of the child’s most recent hours of therapy.

60.In the absence of rigorous data and accepting that the evidence of Ms R and the child’s mother, while sincerely and honestly held, is apparently discounted by confirmation bias, the Tribunal turns to the evidence of Dr MacLean, who had not seen the child, and that of Assistant Professor Sandbank, who has reviewed several meta analyses of ABA studies, but had also not seen the child.  Overall, however, the Tribunal has found their evidence helpful in determining if sufficient evidence exists to demonstrate that 25 hours of ABA therapy per week is a reasonable and necessary support for this child.

61.The Tribunal also accepts the Applicant’s contention in closing submissions that it is the needs of this child, and this child’s responsiveness to the ABA therapy at various intensities, which should form the basis of the Tribunal’s decision. In her words,

“the NDIA’s whole purpose is to address an individual’s needs and goals”, rather than rely on randomised control trials or meta analysis.

62.Relying on the evidence of Dr MacLean, the Applicant argued that best practice must be informed by the individual, and in his words:

“Individualisation is crucial. You have best practice and then you have what this individual child needs”.

63.The difficulty in this case is that there is limited evidence about the impact of 25 hours of therapy each week on the Applicant, noting that 25 hours is at the top end of the range of hours (15-25 per week) recommended by the Autism Cooperative Research Centre’s Australian Guidelines.

64.Furthermore, both expert witnesses confirmed that there was only limited evidence about the effectiveness of ABA when provided for more than 15 hours per week, although strong evidence that 15 hours was beneficial.  Dr MacLean also told the Tribunal that regarding the Guideline range of 15-25 hours ABA, “the individualisation of that [guideline] is important”. 

65.Associate Professor Sandbank cautioned that the responsiveness of children with autism to ABA also varied with the severity of their challenges;

“Children who had lower cognitive scores and more severe autism-related challenges – so we might say ‘higher autism symptomatology’ – they did not differentially benefit from intervention whether .. they got 15 or 25 hours per week; which doesn’t mean they didn’t benefit from intervention at all; it’s just that their benefit didn’t seem to depend on the amount of intervention they received.”

66.Finally, in cross examination, Dr Maclean, who had previously asserted that while there was strong evidence for the impact of 15 hours per week of ABA on a child’s progress but decreasing evidence of impact as the hours of therapy were increased, agreed that the child, because of his age, would benefit from 20 hours per week.  As he told the Tribunal:

“in the context of a child who is about to start school, then this is a situation where I would be considering 20 as a quite a reasonable proposition.”

As the Applicant put it in closing submissions, this was to:

“attain an optimisation of his functioning, and that school represented a goal, and therefore a reason to spring, and that’s when he said, in his view, 20 hours was reasonable”.

67.Assistant Professor Sandbank, when asked about the importance of the pre-school years, told the Tribunal that

“correlational studies…do not find evidence that the younger children benefit more than older children from the intervention…that association might exist in reality but we can’t see it statistically…there are, in this field, a lot of things that are oft repeated and assumed to be backed by evidence because they’re repeated so frequently by experts”.

68.The Respondent contended that Dr Maclean could not assess what was “reasonable”. The Tribunal understood Dr MacLean’s assessment of 20 hours as “reasonable”, to be applying the everyday sense of the word, as the Oxford Dictionary defines reasonable as meaning: “fair, practical, sensible”, rather than the meaning of reasonable contained in section 34 of the Act.

69.While the Applicant has contended that 25 hours per week is ideal, in cross examination Ms R agreed that the most recent Schedule of Support Quote (August 2023) in fact only provided five hours of therapy four days per week, making for a total weekly amount of therapy, as the Respondent observed in closing submissions, of only 20 hours.  While the Applicant received almost 25 hours per week for two months in 2021, the Centre’s current therapy proposal. Schedule of Support Quote provides for 20 hours per week and not the 25 hours per week sought by the Applicant.

70.The Respondent contended in closing submissions that the Applicant had not had a sustained period of 15 hours therapy per week, for which there is good research confirmation of benefit, and accordingly, there was no benchmark available to determine the additional benefit which might be gained from 25 hours of therapy. That is, there was no evidence that 20 or 25 hours of therapy would have provided more, less, or the same, benefit to the child as the 15 hours proposed by the Respondent. In these circumstances, the Respondent contended it was not possible to determine if the 25 hours being sought constituted value for money, so meeting the requirements of s 34 (1) (c). The Tribunal accepts that argument.

71.The Tribunal has considered the evidence of Dr Maclean about the appropriateness of providing 20 hours per week ABA in this Applicant’s pre-school period, and the warning of Associate Professor Sandbank that there is no research which demonstrates the greater effectiveness of more hours of therapy for younger children. However, the Tribunal found Dr Maclean’s evidence to be well informed by clinical paediatric experience and accepts his opinion that early intervention during this crucial period of a child’s development is desirable and further, if the intensity of therapy provided is insufficient to support the child’s development, it is more difficult to address in later years. Dr MacLean had also described 15 hours per week therapy as a “starting point”.

72.Overall, the Tribunal finds, based on the evidence available, that twenty hours ABA therapy per week for the next twelve months is reasonable and necessary. At the end of the twelve-month period, when the child is no longer in his pre-school period, it is open to the Respondent to seek a reduction, based upon an independent paediatric report and the rigorous collection of the child’s outcomes data, standardised against his chronological age.

Supervision Hours

73.The Respondent has contended that only 1.5 hours supervision per week, including report writing, is necessary, based upon the deployment of a Level 2 therapist. The Applicant has contended that five hours supervision, including report-writing, is necessary.

74.Although the Respondent said there was no evidence that five hours of supervision was necessary, the Applicant drew on the two service quotations provided, and the evidence of Ms R, to explain that supervision of five hours per week, at the supervisor rate, was made up of report writing, supervision of the therapist and fortnightly face to face visits to the child, as well as occasional meetings with the child’s mother. The written reports of therapists who had been with the Applicant were not provided, so it was not possible to determine the extent of report writing provided. Overall, the five hours were not broken down, and the total was asserted, rather than demonstrated. The Tribunal appreciates that the Supervisor’s attendance at the home would be for a significant period of a daily session.

75.The Tribunal finds there is insufficient evidence to demonstrate that five hours per week supervision is necessary and accepts the Respondent’s proposition that 1.5 hours per week is required, especially since a Level 2 therapy assistant is to provide the therapy.

Transport Costs

76.The Lizard Centre proposed travel costs for 5.5 hours of travel each week at the therapist rate of $86.79 per hour for the Therapist. The Respondent argued there was no evidence that the trips would take 30 minutes each way (the distance between the Centre and the child’s home being unknown) and that, in any case, the therapist was only attending four days each week, which would constitute total travel time of four hours if the cap of 30 minutes were applied. Similarly, travel costs for the program supervisor, considering their attendance at the home is only fortnightly, should be 2 hours per month, not three as proposed in the Lizard Centre’s quote.

77.The Tribunal accepts the Respondent’s calculation that there would only be four hours of travel each week for the therapist but considers that a cap of 30 minutes per trip is fairly applied in circumstances where traffic congestion and travel delays are a part of everyday life. This also applies to the supervisor’s travel time. The Tribunal finds, based on the evidence provided, that travel costs of four hours per week at the Level 2 Therapist rate, and two hours per month at the Program Supervisor rate, are reasonable and necessary costs associated with the therapeutic support. The Respondent proposed that the supervisor rate of $214.41 per hour, the Agency’s rate, be applied, which the Tribunal accepts. The Level 2 Therapy Assistant rate of $86.79 is also accepted.

CONCLUSION

Intensity of Therapy

78.The Tribunal concludes that the measurement and monitoring of therapeutic outcomes provided by the Applicant’s provider, the clinical data, has not been sufficient to mitigate the concern raised in other cases before the Tribunal, that the evidence of therapy providers who stand to benefit from a decision to increase the number of hours should be taken with caution. Therapy providers who rely on Agency support for funding would be wise to develop a more rigorous and standardised approach to their collection and analysis of relevant data. Consequently, the Tribunal’s decision, while drawing on the Lizard Centre and the mother’s evidence, is not based solely upon their probative value, which is heavily qualified for the reasons given previously. The evidence of Associate Professor Sandbank was of use in guiding the Tribunal’s understanding of the likelihood of improvement at various intensities, but necessarily qualified regarding this child. Dr Maclean’s clinical and research experience, while valuable, was also limited by not having seen this child over any period of time, a limitation he expressed to the Tribunal.

79.The Tribunal concludes that 20 hours per week of ABA therapy is a reasonable and necessary support, meeting the requirements of s 34 (1) (c), value for money, in light of the age and circumstances of this child and the evidence provided about the effectiveness of ABA therapy at various intensities. Since this conclusion relies heavily on the age of this child, a twelve-month period at this intensity is desirable in the first instance.

80.The Tribunal concludes that 20 hours per week of ABA therapy is likely to be effective and beneficial, thus satisfying the requirements of s 34 (1) (d), based on the finding that the child’s development at his age is an important consideration for intervention.

Hours of Supervision

81.The Tribunal concludes that there is sufficient evidence to support the provision of 1.5 hours of supervision, but not of five hours.

Transport Costs

82.The Tribunal concludes that associate transport costs of four hours per week at the Level 2 Therapist rate of $86.79 are reasonable and necessary and two hours per month at the Clinical Supervisor rate of $214.41 are also reasonable and necessary.

DECISION

83.Pursuant to subsection 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review dated 10 January 2022 and remits the matter to the Chief Executive Officer of the National Disability Insurance Agency in accordance with the following direction:

(1)to include the following reasonable and necessary supports in the Applicant’s Plan over a 12-month period:

(a)  20 hours of Applied Behavioural Analysis Therapy per week, provided by a Level 2 Therapist;

(b)  1.5 hours of program supervision per week;

(c)   4 hours per week of transport at the Level 2 Therapist rate of $86.79 and 2 hours per month at the Clinical Supervisor rate of $214.41.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Goward

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

Associate

Dated: 6 November 2023

Date of hearing:	22 and 23 August 2023
Counsel for the Applicant:	Ms Mary Sevdalis
Solicitor for the Applicant:	Ms Rosy Roberts
Solicitor for the Respondent:	Mr Oliver Morris