ZNDV and National Disability Insurance Agency
[2014] AATA 921
•25 November 2014
[2014] AATA 921
Division NATIONAL DISABILITY INSURANCE SCHEME DIVISION File Number
2014/2438
Re
ZNDV
APPLICANT
And
National Disability Insurance Agency
RESPONDENT
DECISION
Tribunal Deputy President K Bean
Mr I Thompson, MemberDate 25 November 2014 Date of written reasons 11 December 2014 Place Adelaide The decision under review is varied so as to incorporate the terms of a further plan (numbered 2 – X2ZHFT – V 4.2) printed by the respondent on 12 November 2014, with a review date of 6 February 2015, and which is annexed to this Decision.
..............................................................
Deputy President K Bean
CATCHWORDS
NATIONAL DISABILITY INSURANCE SCHEME – Early intervention requirements – Asperger’s disorder – Reasonable and necessary supports – Occupational therapy room and equipment in applicant’s home – Whether support represents value for money – Support not reasonable, relative to likely benefits – Decision under review varied to incorporate terms of further plan agreed to by parties.
LEGISLATION
National Disability Insurance Scheme Act 2013, ss 3(d), 5(f), 6, 21(1), 22, 23, 25, 34, 117, 209
National Disability Insurance Scheme (Facilitating the Preparation of Participants' Plan-South Australia) Rules 2013
National Disability Insurance Scheme (Becoming a Participant) Rules 2013
National Disability Insurance Scheme (Supports for Participants) Rules 2013Administrative Appeals Tribunal Act 1975, subs 35(2)
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed, Text Revision, Washington DC, 2000)
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, Washington DC, 2013)
REASONS FOR DECISION
Deputy President K Bean
Mr I Thompson, Member11 December 2014
INTRODUCTION
This is an application for review of a decision made on 16 April 2014 by the National Disability Insurance Agency (NDIA) in relation to a Support Plan for the applicant, which commenced on 4 December 2013.
The applicant is now five years old, he has one brother and both boys live with their parents. His requests to the NDIA, and his requests for review of the relevant decisions, including his application to this Tribunal, have been made by his mother on his behalf.
The NDIA granted the applicant access to the National Disability Insurance Scheme (NDIS) in accordance with the early intervention requirements in s 25 of the National Disability Insurance Scheme Act 2013. The NDIA accepted that the applicant is a child with Asperger’s syndrome and he experiences developmental delay in areas of social interaction.[1]
[1] T6/61.
We should also explain that, because the applicant is a child, at an early stage of the proceedings, the Tribunal made a confidentiality order under subs 35(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act). By that order, the Tribunal directed that the hearing take place in private, gave directions as to persons who could be present at the hearing, and prohibited disclosure of information that may identify the applicant.
Following the hearing on 18 November 2014, our Decision and Reasons were delivered orally on 25 November 2014. This written version of our Reasons has been prepared at the request of the NDIA. We should also add that, on 1 December 2014, the confidentiality order was varied so as to prohibit the publication of the plan annexed to the written copy of the Tribunal’s Decision, and which is referred to in these Reasons.
ISSUE FOR THE TRIBUNAL
By the time the matter came on for hearing, there was only one issue still in dispute between the parties. That issue concerned the applicant’s request for the NDIA to fund a range of occupational therapy equipment which would allow him to have an occupational therapy room in his home.
The applicant’s original application for review to the Tribunal also related to a number of other matters. However, between the time of lodging the review application and the date of the hearing, the parties resolved all of the issues other than the approval of funding for occupational therapy equipment. We will return to the precise terms of the agreement between the parties later in our Reasons, as the parties have asked us to give effect to their agreement in our Decision.
LEGISLATION
The National Disability Insurance Scheme Act 2013 (the Act) contains objects and principles which emphasise the rights of people with disability to participate in the community to the full extent of their ability. The NDIA is established by s 117 of the Act. In accordance with s 6 of the Act, the NDIA may provide support and assistance (including financial assistance) to people with disability to exercise choice and control in pursuit of their goals.
In relation to children, subs 5(f) of the Act states that:
If the person with disability is a child—the best interests of the child are paramount, and full consideration should be given to the need to:
(i) protect the child from harm; and
(ii)promote the child’s development; and
(ii)strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.
Section 209 of the Act enables the Minister to make rules pursuant to the legislation. In South Australia, the preparation of participants’ plans under the NDIS is facilitated by the National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plan—South Australia) Rules 2013.[2] Rule 1.3 states that only persons under the age of six can become participants in the first year of the NDIS, which is defined as 1 July 2013 to 30 June 2014. Thereafter, a phasing in process is provided for people with disability in South Australia accessing the NDIS. Rule 1.6 states that:
The Act sets out a number of objects and principles for the NDIS, to which these Rules give effect. In giving effect to the objects, regard is to be had to the progressive implementation of the NDIS and the need to ensure the financial sustainability of the NDIS.
[2] The National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plan—South Australia) Rules 2014 came into force on 1 July 2014 and are in relevantly identical terms.
In the context of financial sustainability of the NDIS, subs 3(3)(d) of the Act requires that regard be given to:
(d)the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
While the Act provides for the NDIS in Australia, we note that the implementation of the Scheme nationally will follow the launch of the Scheme in certain areas of Australia. The National Disability Insurance Scheme (Becoming a Participant) Rules 2013 confirm that the NDIS launch is part of a process whose objects include requirements:
(a)to provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS launch;
(b)to facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability;
The National Disability Insurance Scheme (Becoming a Participant) Rules 2013 define the NDIS launch areas and they include South Australia (Rule 4.4(a)). They also provide for a qualifying residence requirement for children (Rule 4.8).
Section 22 of the Act specifies age requirements and s 23 specifies residence requirements for a person to become a participant in the Scheme.
Generally, a person meets the age requirements if the person was under 65 years old when an access request was made. In South Australia and in Tasmania, additional requirements are specified by the National Disability Insurance Scheme (Becoming a Participant) Rules 2013. For a person who resides in South Australia, Rule 3.3(a) states that the age requirement will be met if:
(a)for an access request made before 1 July 2014—the person was aged under 6 on 1 July 2013 …
The Tribunal is satisfied that the applicant meets the age requirements and the residence requirements specified in the Act and in the applicable Rules.
Access Criteria
To become a participant in the NDIS, a person must meet access criteria which are set out in subs 21(1) of the Act. The applicant meets those access criteria because the CEO of the NDIA was satisfied that he meets the early intervention requirements in s 25 of the Act and in particular, subs 25(1)(b):
(b)the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability;
The NDIA considered that early intervention involving a range of therapies would assist the applicant to manage social development, particularly transition to school, reduce future needs for supports, and lead to an improvement in functional capacity.[3]
[3] T6/61 - 62.
Reasonable and Necessary Supports
Section 34 of the Act is central to the question of what will be funded and what will not be funded for a participant in the Scheme. It is important to understand that a participant will not necessarily be funded for every support that is requested through the NDIS. The requirements in s 34 of the Act are stringent and each one of them must be met. In particular, the relevant decision-maker must be satisfied of all of the following criteria in s 34 in relation to each support:
(a)the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b)the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c)the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d)the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e)the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f)the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i)as part of a universal service obligation; or
(ii)in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability;
…
In deciding what are reasonable and necessary supports, the Tribunal must also take into account the requirements of the National Disability Insurance Scheme (Supports for Participants) Rules 2013. In particular, Part 3 of the Rules provides context for the meaning of “value for money” (Rule 3.1), “Effective and beneficial and current good practice” (Rule 3.2 and Rule 3.3), “Reasonable family, carer and other support” (Rule 3.4), and “Supports appropriately funded or provided through the NDIS” (Rule 3.5, Rule 3.6 and Rule 3.7).
THE APPLICANT’S PLAN AND THE DECISION UNDER REVIEW
As we have already mentioned, in November 2013, the CEO of the NDIA approved a plan for the applicant to commence on 4 December 2013 with a review scheduled for 3 June 2014. The plan included funding for an early intervention program totalling 48 hours of therapeutic supports over 24 weeks (including speech therapy and occupational therapy), group work with a psychologist, and expenses for travel for psychology sessions.
Not all of the support requests were approved. In particular, the NDIA did not consider that funding for a “sensory room and the associated equipment” was a reasonable and necessary support under s 34 of the Act. The reason given to the applicant’s family was that a best practice review had concluded that there was no evidence that the provision of a sensory room and equipment would be effective or beneficial in assisting the applicant’s functional impairment, associated with Asperger’s syndrome. Other requested supports also were not approved. However, as we have already indicated, the issues arising out of that refusal have since been resolved by the parties.
Before applying to the Tribunal, the applicant’s mother applied for an internal review of the original decision of the NDIA, in accordance with subs 99(d) and subs 100(2) of the Act. One of the outcomes she sought was funding for occupational therapy equipment for the applicant at home.
In respect to that request, the NDIA made a determination to vary the original reviewable decision[4] and the effect of the variation was that the approved supports would be provided as a package of flexible therapeutic services through a transdisciplinary approach. However, the reviewer did not vary that part of the original decision which had denied the request for occupational therapy equipment.
[4] Subsection 100(6)(b) of the Act.
It appears that the main effect of the decision on review was to provide greater flexibility to the applicant’s parents to discuss the quantity of service provision with chosen service providers. In declining to agree to the request for support to install occupational therapy equipment at the applicant’s home, the NDIA stated that it did not “regard it as reasonable and necessary to fund any kind of therapy equipment in the home that is accessible through the community / therapy visits or with consideration expectation (sic) of what a parent would provide in terms of toys, sporting and hobby equipment that meet [the applicant’s] development needs and interests.”[5] The NDIA added that they recommended “… a discussion with the Occupational Therapist to identify appropriate options for a program of activities for [the applicant] to access within local community facilities to assist [the applicant] to achieve his goals and subsequently address some of the factors the family faces …”.[6]
[5] T2/25.
[6] T2/25.
Following a review prior to the effective end date of the plan, the next iteration of the plan commenced on 4 June 2014 with an end date of 3 December 2014. In effect, this iteration continued the reviewed version of the original plan with provision of funding for individual and group support, including psychology support, speech therapy, occupational therapy, hydrotherapy and therapist travel totalling $9,332.38.[7] However, the new plan also did not provide for funding for occupational therapy equipment at the applicant’s home.
[7] T8/75 – 83.
At the hearing, we were advised that the parties had agreed to a further plan, intended to start on 14 November 2014 and with a review date of 6 February 2015. That plan included the following additional supports: Rebound Therapy, sessions with Mark Le Messurier, and reimbursement of costs for services provided by Dr Bollard for nocturnal enuresis, including initial consultation, three follow up sessions and hire of an alarm. As we understand the position, at the time we delivered our oral Decision and Reasons, that plan had not yet taken effect, but reflected the parties’ agreement as to all of the outstanding issues in dispute, aside from the occupational therapy room. The parties accordingly requested that in our Decision we give effect to that agreement, as well as determining the occupational therapy room issue.
As to the exact decision we are reviewing, the parties agree and we are satisfied that the decision under review is the decision made by the reviewer on 16 April 2014 to vary the original plan.[8] By application dated 12 May 2014, the applicant’s mother applied to the Tribunal for a review of that decision.
[8] T2/19. See subs 100(6) and s103 of the Act.
We will now turn to the substantive issue before us, i.e., whether we should vary the applicant’s plan so as to provide that the requested occupational therapy equipment is provided to the applicant.
SHOULD THE EQUIPMENT SOUGHT BE FUNDED UNDER THE NDIS?
The applicant’s early intervention requirements
It is both implicit and explicit in the NDIS legislation and the accompanying Rules that the supports to be provided are specific to the disability or early intervention requirements in question.
In this regard we note that the applicant has been diagnosed with “Asperger’s disorder”, and it is this condition which has caused the applicant’s developmental delay and given rise to his early intervention requirements.
The diagnostic criteria for Asperger’s disorder were contained within the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision (DSM-IV-TR). DSM-IV-TR has subsequently been superseded by DSM-5, which does not contain diagnostic criteria for Asperger’s disorder but sets out the diagnostic criteria for Autism Spectrum Disorder (ASD). It is sufficient for our purposes to refer to the diagnostic criteria for ASD in DSM-5, which are as follows:[9]
[9] Diagnostic and Statistical Manual of Mental Disorders 5th Edition, pp 50 - 51.
A.Persistent deficits in social communication and social interaction across multiple contexts, as manifested by the following, currently or by history…:
1. Deficits in social-emotional reciprocity, ranging, for example, from abnormal social approach and failure of normal back-and-forth conversation; to reduced sharing of interests, emotions, or affect; to failure to initiate or respond to social interactions.
2. Deficits in nonverbal communicative behaviours used for social interaction, ranging, for example, from poorly integrated verbal and nonverbal communication; to abnormalities in eye contact and body language or deficits in understanding and use of gestures; to a total lack of facial expressions and nonverbal communication.
3. Deficits in developing, maintaining, and understanding relationships, ranging, for example, from difficulties adjusting behaviour to suit various social contexts; to difficulties in sharing imaginative play or in making friends; to absence of interest in peers.
…
B.Restricted, repetitive patterns of behaviour, interests, or activities, as manifested by at least two of the following, currently or by history …:
1. Stereotyped or repetitive motor movements, use of objects, or speech (e.g., simple motor stereotypies, lining up toys or flipping objects, echolalia, idiosyncratic phrases).
2. Insistence or sameness, inflexible adherence to routines, or ritualized patterns of verbal or nonverbal behaviour (e.g., extreme distress at small changes, difficulties with transitions, rigid thinking patterns, greeting rituals, need to take same route or eat same food every day).
3. Highly restricted, fixated interests that are abnormal in intensity or focus (e.g., strong attachment to or preoccupation with unusual objects, excessively circumscribed or perseverative interests).
4. Hyper- or hyporeactivity to sensory input or unusual interest in sensory aspects of the environment (e.g., apparent indifference to pain/temperature, adverse response to specific sounds or textures, excessive smelling or touching of objects, visual fascination with lights or movement).
…
C.Symptoms must be present in the early developmental period (but may not become fully manifest until social demands exceed limited capacities, or may be masked by learned strategies in later life).
D.Symptoms cause clinically significant impairment in social, occupational, or other important areas of current functioning.
E.These disturbances are not better explained by intellectual disability (intellectual development disorder) or global developmental delay. Intellectual disability and autism spectrum disorder frequently co-occur; to make comorbid diagnoses of autism spectrum disorder and intellectual disability, social communication should be below that expected for general developmental level.
Note: Individuals with a well-established DSM-IV diagnosis of autistic disorder, Asperger’s disorder, or pervasive developmental disorder not otherwise specified should be given the diagnosis of autism spectrum disorder. Individuals who have marked deficits in social communication, but whose symptoms do not otherwise meet criteria for autism spectrum disorder, should be evaluated for social (pragmatic) communication disorder.
…
The supports which are sought
It is in this context that the applicant seeks to have a number of items of equipment provided, aimed at allowing him to have a fully equipped occupational therapy room in his own home. The goal of this is to give him ready access, under the supervision and direction of his parents, to therapeutic activities directed to addressing some of the effects of his Asperger’s syndrome.
The equipment sought and the respective cost of each item, is set out below:
Item
Qty
Price
(GST Incl.)
Senior Bouncer and Safety Pads (bar not included) 1 $438.90 Wiggly Walk Balance 1 $262.90 Cliffhanger 1 $427.90 Wide Trestle-Bigger (for Cliffhanger) 1 $481.80 Rope Ladder 1 $96.95 Polyester Tunnel 1 $219.95 Slide 1 1 $385.00 Slide 2 1 $539.00 Wedge (not cylinder) 1 $218.90 Cube [at $275.00 ea] 2 $550.00 Step P.E. 23 1 $385.00 Trapeze with Rings 1 $58.95 Extra Wide Crash Mat [at $528.00 ea] 2 $1,056.00 Soft fall mats [at $294.80 ea] 8 $2,358.40 Jigsaw Mat 36 mm [at $75.90 ea] 20 $1,518.00 Jigsaw Mat 36 mm Edge [at $8.80 ea] 18 $158.40 Jigsaw Mat 36 mm Corner [at $3.30 ea] 4 $13.20 Punching Bag 1 $79.95 Disc Swing with Bouncer 1 $159.99 Sling Swing (from United Kingdom; Price current as at 08/05/14) 1 $481.90 Series 40 AP Block, Fiddle, Becket, Clea (sic) (9316800244195) for Sling Swing 1 $102.36 TOTAL $9,993.45
It is our understanding that the applicant’s parents have already begun the process of converting their garage into an occupational therapy room for the applicant. Their intention is that the equipment, if provided, would be housed and appropriately set up in that room so that the applicant would have good access to all of the equipment and would be able to use it on a regular basis.
We will next outline what we consider to be the most salient aspects of the documentary evidence, before turning to the oral evidence given at the hearing.
The Documentary Evidence
Reports of Mr Dino Mennillo – Director, Occupational Therapy for Children
Mr Mennillo is an occupational therapist who has been involved in providing occupational therapy to the applicant through the business Occupational Therapy for Children (OTFC) since March 2013.
We understand that whilst the applicant’s treating occupational therapist at OTFC is Mr Klaassen-Smith (whose reports will be discussed below), Mr Mennillo has supervised the therapy provided by Mr Klaassen-Smith and also undertaken some assessments of the applicant. The material before us includes a number of reports from Mr Mennillo, which we will discuss in date order.
The first report from Mr Mennillo that we have is a report to the applicant’s treating general practitioner, on 4 March 2013[10]. In that report Mr Mennillo indicated that the applicant was progressing well and did not have a high need for ongoing occupational therapy:
This evaluation did not indicate any processing deficits. [The applicant] is an exceptional young boy and I feel that it is his IQ rather than his actual Asperger’s Syndrome that sets him apart from other children his age.
…
There was some modulation difficulties with ‘filtering in’ and ‘filtering out’ amounts of sensory input that impact on [the applicant’s] tolerance to noise, touch, clothing textures etc. However, these are not of significant concern and are quite consistent for children his age.
…
I indicated to [the applicant’s mother] that she will also potentially need to use her FaHCSIA funding for the provision of equipment or other items as I do not feel that [the applicant] has a high degree of need for ongoing OT, speech or any other type of therapy.[11]
We also note that in an assessment conducted in March 2013, Mr Mennillo found that the applicant was average or above average in all areas, apart from “sensory identification of fingers” and “draw a person” where he was below average. His overall total score was in the 83rd percentile.[12]
[10] T19/126.
[11] T19/127.
[12] T19/128 – 129.
However it appears that subsequent to Mr Mennillo’s report of March 2013, the possibility of an occupational therapy or “sensory room” was raised with Mr Mennillo. In a report dated 9 October 2013[13], Mr Mennillo stated as follows:
[The applicant] has been a client of OTFC since April 2013. His diagnosis of Autism Spectrum Disorder (ASD) is compounded by presenting sensory issues, most notably difficulty modulating Sensory input. The visible component of this for a young boy with ASD includes difficulty regulating arousal level throughout the day, difficulty calming when anxious and over reactions to seemingly innocuous input i.e. sounds. A significant part of therapy for [the applicant] has focused on sensory modulation and teaching [the applicant] how to regulate himself, with the assistance of his parents and carers. Commonly, this is referred to as a “Sensory diet” and for many children is included as part of the ‘alert program’ for sensory regulation.
In discussion with [the applicant’s] treating therapist and in consultation with his parents, … it is felt that [the applicant] will continue to benefit from a sensory diet for many years to come. With this in mind [the applicant’s] parents have begun the process of converting a garage at their home into a ‘Sensory room’ to provided [sic] [the applicant] with regular opportunities to engage in self-regulatory activities. This is a commendable commitment and one that is fully supported by this practice. Funding a Sensory room is expensive, items need to be chosen carefully and a child requires supervision at all times. [The applicant’s mother] has received ongoing education regarding the use and timing of such equipment and I support her request for assistance without reservation or hesitation.[14]
[13] T27/244.
[14] T27/244.
Mr Mennillo later provided a further report based on assessments of the applicant on 12 and 22 March 2014.[15] He noted in this report that since the March 2013 assessment (when the applicant was three years and eight months old), he had engaged in three “blocks” of occupational therapy over the course of the year “with a focus on developing his motor skills and ability to regulate himself”. Mr Mennillo proceeded to note that assessments undertaken in March 2014 revealed that the applicant’s “underlying motor processing skills that contribute to the development of fine and gross motor skills are also progressing very well”, and that the applicant “again achieved above average scores in these areas”. Mr Mennillo noted that this was “very unusual, not only for a child on the Autism Spectrum but also for a child with this level of intellect. From this perspective, [the applicant] is extremely ‘well rounded’.” Mr Mennillo noted that the applicant’s balance with eyes closed could improve further and went on to observe:
The somatosensory component that looks at touch perception/discrimination and sense of body awareness is traditionally an area of difficulty for children with Autism Spectrum Disorders and higher level intellect. However, [the applicant] is progressing well here. [The applicant’s] finger identification was slightly weaker although not outside of an average range.
[The applicant’s] postural control is developing well and whilst he has slightly low muscle tone, he is able to override this easily. [The applicant] shows good isolation of hand and finger movements and excellent integration of primitive reflexes.
In summary, [the applicant] is an exceptional boy from a neurodevelopmental and sensori-motor perspective.[16]
…
[15] Applicant’s “Discovered Documents” (Applicant’s Documents), A3/9.
[16] Applicant’s Documents, A3/12.
Mr Mennillo went on to indicate that he had encouraged the applicant’s parents to “explore options to support his social and physical development outside the constraints of therapy”, such as bike riding, Cubs and tennis, and perhaps soccer or football in time. With respect to further occupational therapy, Mr Mennillo stated:
Further Occupational Therapy is suggested at the request of [the applicant’s parents]. OT continues to provide a level of stimulation for [the applicant] that contributes to the overall plans and scheduled activities he has outside of school. [The applicant] enjoys his OT and is provided with a lot of opportunities to practice activities that move him outside of his comfort zone. This supports not only his physical development but also his attitude in being able to adapt to things that are difficult for him.[17]
[17] Applicant’s Documents, A3/13.
In addition, Mr Mennillo has provided a more detailed report dated 26 September 2014 directed specifically at the potential benefits of an occupational therapy or “sensory room”.[18] In that report, he noted that Mr Klaassen-Smith had been supervising the applicant during weekly sessions lasting from 30 to 45 minutes. He went on to indicate that there were differences in meaning between the terms “sensory room”, “sensory integration therapy room” and “Occupational Therapy room”. He acknowledged that “Sensory Integration Therapy itself has attracted a great deal of debate and research, particularly over the last ten years, with the understanding that the evidence to support this therapy is inconclusive.” With respect to the definition of an “Occupational Therapy room”, Mr Mennillo stated as follows:
An Occupational Therapy room with specific equipment is ideal for supporting a child at home. There have been opportunities for some parents with the financial means to consult an occupational therapist such as myself to develop a therapy room at home. This would assist a child to engage in a range of activities that can support their sensory needs, mostly in the area of sensory regulation as well as the development of their motor coordination. This type of approach is more commonly undertaken by families who have children with Autism Spectrum Disorders as their sensory issues continue for extended periods in comparison to neuro-typical developing children, and can be lifelong for many.
[18] Applicant’s Documents, A5/16.
He went on to acknowledge that in his letter to the applicant’s general practitioner in March 2013, he had indicated that the applicant’s need for occupational therapy input was not high, but went on to state:
As I have indicated previously, this did not suggest that [the applicant] would not benefit from OT input, given that he presented with modulation difficulties. This is a separate component to the framework of Sensory Integration Therapy and more consistent with the DSM-IV category in diagnosing children with Autism Spectrum Disorders.
[The applicant] has, and continues to have, difficulty modulating sensory input. This is a consistent feature for not only children with autism spectrum disorders but, even more so, for children with high level intellect.[19]
…
[19] Applicant’s Documents, A5/19.
Mr Mennillo proceeded to acknowledge that the idea of the applicant having an occupational therapy room at home had emanated from his parents, stating:
In discussion with [the applicant’s mother] previously, it was indicated that both herself and [the applicant’s father] would like to have a therapy room for [the applicant] to be able to continue to engage in a range of activities. This would not only support his ability to regulate himself, but also encourage [the applicant] to continue to move outside of his comfort zone and be able to access this in a safe, controlled and supportive manner under their guidance.[20]
In terms of the ways in which an occupational therapy room would support the goals and objectives in the applicant’s NDIS plan, Mr Mennillo made reference to the applicant’s goals of having better problem-solving skills and concentration, as well as using “other strategies to help me calm down when I am stressed so that I have fewer meltdowns.”
[20] Applicant’s Documents, A5/20.
He went on to state that:
The ways in which Occupational Therapy and, more specifically, the use of the aids and equipment in a home therapy room would support this are again linked to [the applicant’s] difficulty with the modulation of sensory input and self-regulation, as well as his difficulty moving outside of his comfort due mostly to his anxiety levels.
…
In my opinion, the list of equipment items recommended by Mr Klaassen-Smith would provide a range of opportunities for [the applicant] to not only engage in self-regulatory activities at home but also assist with his motor skills and ability to adapt to new situations that require problem-solving skills. This would mainly involve the slide, wedges, trampoline, walking balance, the trestle, rope ladder, trapeze and crash mats, which all provide a range and combination of activities that would be ideal for [the applicant].[21]
[21] T12/97.
Mr Mennillo went on to indicate that the equipment recommended for the applicant to use at home was either a replica or variation on equipment that he had been using in occupational therapy sessions with Mr Klaassen-Smith. He also commented that using this equipment in sessions with Mr Klaassen-Smith, the applicant had been “able to move outside of his comfort zone and adapt and build his motor skills. He is also continuing to work on his muscle tone and has improved in his ability to regulate his arousal level”.
Whilst implicitly acknowledging that his existing occupational therapy sessions could and probably would continue, he indicated that the effect of a home occupational therapy room would be that the applicant would progress much faster, and transition out of OTFC and the need for occupational therapy “at a much faster rate in comparison to other children who do not have access to this type of room”. He did not specify when the applicant would be expected to transition out of occupational therapy without the benefit of a home therapy room.
Mr Mennillo also noted that an additional benefit of the applicant’s family having occupational therapy equipment at home was that this could also be used by the applicant’s brother, who also has autism spectrum disorder.
Reports from Mr Klaassen-Smith, Occupational Therapist
Also before us are four reports from the applicant’s occupational therapist, Mr Klaassen-Smith. Those reports are dated 19 September 2013[22], 12 December 2013[23], 7 May 2014[24] and 10 July 2014[25] respectively.
[22] T12/97.
[23] T26/243.
[24] Applicant’s Documents, A9/38.
[25] Applicant’s Documents, A10/39.
In his report of 19 September 2013, Mr Klaassen-Smith reported on the outcome of his weekly sessions of “sensory based occupational therapy” with the applicant since March 2013. In reporting on the results of this therapy, Mr Klaassen-Smith stated that the applicant:
has made excellent progress across many areas including gross and fine motor skills, confidence and emotional flexibility. In our later sessions we focused on developing [the applicant’s] social skills to prepare him for school in 2014.
He went on to note that the applicant would have a review of his occupational therapy needs in early 2014 and “it is very likely that this review assessment will find that [the applicant] would benefit from further occupational input to continue to support the progress he has already made”. He went on to state “These sessions would be most beneficial for [the applicant] if they were weekly and the block to be quite lengthy as often progress takes longer with younger children, particularly those with a diagnosis of ASD.”[26]
[26] T12/97.
In his report of 7 May 2014, Mr Klaassen-Smith noted that he had recently begun another “block of therapy, working on general gross motor skills, confidence and turn taking”. He went on to state:
I am writing today under request from [the applicant’s] parents, regarding my opinion around the need for occupation therapy based equipment for their home. I feel this equipment will support [the applicant] to achieve his goals because:
● It will provide his parents with the ability to continue to provide OT themed activities at home, increasing [the applicant’s] independence and reduce his need for further supports in the longer term.
● OT themed equipment is able to be adjusted and adapted to suit [the applicant’s] progressing capacities and confidence.
● The equipment can also be adapted to develop specific and varied skills, being able to customise to support many of [the applicant’s] goals.
● Equipment in the home will allow for engagement all year round, it will not be limited by weather, safety and time of the day.
● This equipment in the home could also be used to support [the applicant’s] social skills/turn taking in a comfortable and familiar place, having a friend or family member engage with the equipment as well.[27]
[27] Applicant’s Documents, A9/38.
In his report of 10 July 2014, Mr Klaassen-Smith outlined the nature and benefits of each of the individual pieces of equipment recommended for the applicant. The benefits he identified included support for the applicant’s balance, lower limb strength and postural control, motor planning and sequencing, upper limb and hand strength, bilateral coordination, confidence, physical comfort and adaptability, body awareness, overall endurance, and exploration of risk and difficult activities. With respect to the equipment chosen, Mr Klaassen-Smith stated:
The above equipment is specialised play equipment which when brought together will provide [the applicant] and his brother … with excellent opportunities to build on their physical and emotional capacities throughout their childhood and easily into their early teens. [The applicant’s] parents have chosen good quality products and with the use of the block, fiddle, becket and cleat, these items can continually be adapted to suit [the applicant’s] and [his brother’s] changing needs throughout this period. This need for continued support is essential as although [the applicant] has made progress, given his diagnosis of autism, his need for support will be long lasting. This will be a one off purchase whereas support for both [the applicant] and [his brother] with Occupational Therapy sessions will be ongoing for a long period of time.
He also noted that:
[The applicant] will continue to also engage in OT sessions, where his parents can get ideas of how to use their equipment at home, supporting an increased intensity supporting permanent positive physical and emotional change for [the applicant]. For direct therapy to match the intensity available with equipment at home would require significant funding and would not be practical time wise or financially. The above equipment will be exceptionally beneficial for [the applicant’s] overall development and engagement in school, social life and at home.[28]
[28] Applicant’s Documents, A10/41.
Reports from Mr Michael Brockbank, Physiotherapist
Mr Brockbank is a physiotherapist and the general manager of an organisation called Child’s Play. In a report dated 21 September 2013, Mr Brockbank indicates that he has been involved in providing individual aquatic physiotherapy sessions for the applicant and that “aquatic physiotherapy combines the buoyancy and resistance of water and, … can develop a child’s balance, movement, strength, coordination, sense of position and movement as well as their swimming skills.” He notes that the applicant was referred to Child’s Play by Mr Mennillo “to assist with his sensory issues around water and to improve his low muscle tone and core strength.” Mr Brockbank reports that:
I have worked to progress his swimming ability and on specific activities related to improving [the applicant’s] trunk strength and endurance. [The applicant’s] mother reports that he is now sitting cross-legged more often and his general balance and endurance have improved with his gross motor play.[29]
[29] T13/99.
Also before us is a letter from Mr Brockbank dated 9 July 2014. Mr Brockbank indicates in this letter that he offers “full support” for the establishment of an occupational therapy room for the applicant. He addresses the benefits of each individual piece of equipment and goes on to state:
The OT room at [the applicant’s] home will not only ensure [the applicant’s] safety but the significant benefit of non weather dependent therapy for [the applicant]. This equipment will also be under the guidance of myself and other health professional (sic) to achieve the maximum benefit for [the applicant].
The improvement in [the applicant’s] gross motor skills will enhance [the applicant’s] ability to learn playground and sporting skills, which in turn, will reduce the difficulties with communication, social skills and behaviour that children with Autism Spectrum Disorder face every day.
Ultimately this will result in an increase in [the applicant’s] confidence, thus reducing his anxiety. This will give him the best possible chance of success socially, emotionally and academically.[30]
[30] Applicant’s Documents, A12/46.
Relevant research
Also before us are a number of articles relating to the use of “sensory motor interventions” in autism spectrum disorders. Relevantly, an article entitled Sensory Integration Therapy for Autism Spectrum Disorders : A Systematic Review was published in the journal Research in Autism Spectrum Disorders in 2012.[31] This paper reviewed a number of studies into the effectiveness of sensory integration therapy (SIT), finding that only three of the 25 reviewed studies suggested that SIT was effective.[32] The article concluded:
The results of this systematic review were that SIT had no consistently positive effect as a treatment for children with ASD. … In conclusion, there is insufficient evidence to support the use of SIT as a therapy for children with ASD.[33]
[31] T20/130.
[32] T20/141.
[33] T20/143.
We have also had regard to an article published in 2008, entitled Behavioural and Developmental Interventions for Autism Spectrum Disorder : A Clinical Systematic Review[34]. We note that with respect to “sensory motor interventions”, this review concluded that:
The evidence is either limited or inconsistent for this group of interventions to support their use in clinical practice. … Previous reviews that have evaluated the evidence for various types of sensory and motor interventions have similarly reported mixed clinical effects and have concluded that there is insufficient evidence to support use of these interventions at present.[35]
The review concluded:
The most effective behavioural and developmental treatments for ASD should include interventions that address the behavioural, social, and communication deficits associated with the disorder.[36]
[34] T22/191.
[35] T22/217.
[36] T22/218.
Having referred to some of the more significant aspects of the documentary material before us, we will now turn to the evidence of the two witnesses who gave oral evidence at the hearing—the applicant’s mother and Dr Jill Ashburner.
Oral and other evidence
Evidence of the applicant’s mother
The applicant’s mother gave oral evidence at the hearing. Her evidence was very clear and comprehensive, and extremely helpful to us in assessing the applicant’s needs and circumstances. It was clear from her evidence that the applicant’s mother is deeply committed to the welfare of her son and committed to doing whatever she can to give him the best possible chance in life. Indeed, it is clear from all of the evidence that both of the applicant’s parents are extremely committed to the welfare of both their sons, and determined to do whatever they can to give the boys every possible opportunity in life, notwithstanding the challenges they both face.
As to what she saw as the main benefits of having an occupational therapy room at home, the applicant’s mother mentioned a number of advantages and benefits. One of the main benefits she saw was that this would lead to the applicant being able to spend more time at school. She explained that at present, whenever he was undertaking a block of occupational therapy treatment, the applicant was required to attend weekly sessions in Adelaide, which involved a 45 minute drive from where the family live in the Adelaide Hills. As the sessions were scheduled for 3:45 pm and school ended at 3:10 pm, this necessitated the applicant leaving school early on one day of the week, which was usually a Thursday.
As to what preparations had been made to turn the existing garage into an occupational therapy room, the applicant’s mother indicated that these were still in the early stages. She said that she and her husband had purchased the equipment needed to partition the garage so that it could be divided into a storage room and an occupational therapy room. She mentioned that it would be necessary to also insulate the room and provide additional lighting. She mentioned that her father was an electrician and would assist with this. She also conceded that it would be necessary to air-condition the occupational therapy room, so that it could be made cool in summer and warmed in winter. She envisaged a reverse cycle air-conditioner being installed for this. The effect of her evidence therefore was that, in order for the existing garage to be turned into an occupational therapy room, the following still needed to be done:
opartitioning;
oinsulation;
oelectrical work;
oinstallation of lighting; and
oinstallation of reverse cycle air-conditioning.
As to how the proposed room would be used, the applicant’s mother indicated that her expectation was that she would set aside time to conduct a regular weekly session with the applicant in the occupational therapy room, of about 45 minutes. She indicated that she does not work on Thursday afternoons and expected that this would be when she would spend a block of time with the applicant in the occupational therapy room. She expected that this in turn would allow a reduction in the need for the applicant to attend formal occupational therapy sessions in Adelaide, perhaps to once per month, rather than once per week, over the periods when he was undertaking formal occupational therapy.
In other words, this would result in an additional three days per month when the applicant would be able to remain at school rather than needing to leave early on a Thursday afternoon. In addition, she indicated that she would expect to use the room in “short bursts” daily. For example, she indicated that she could envisage offering the applicant the opportunity of spending 10 to 15 minutes in the room as an incentive for him to undertake a particular activity, such as getting ready for school. She also anticipated using the room for short periods of time during the week when she felt that the applicant was on the verge of a “melt down” or “shut down” as a result of being anxious and/or overloaded. She also indicated that she felt that the formal occupational therapy sessions with Mr Klaassen-Smith had been beneficial for the applicant, and she definitely intended to continue with these in addition to using the occupational therapy room at home, if the equipment was funded.
As to what would happen if the relevant equipment was not able to be purchased, the applicant’s mother indicated that she intended that the applicant would continue with his formal occupational therapy sessions, for as long as this was recommended, and she expected this would continue in a similar pattern to the treatment he had undertaken to date. She indicated that she expected there would come a time when the applicant did not need occupational therapy, but she did not know when this would be.
Later in her evidence, the applicant’s mother also confirmed that the applicant’s brother, who is now seven, also has ASD. She indicated that if an occupational therapy room was provided, it would be used by both boys and they could potentially use it at the same time, which would also allow them to practice “turn taking” and other social skills.
The applicant’s mother also mentioned during her evidence that she expected that regular use of the occupational therapy room would assist the applicant’s progress generally with his physical development and confidence, which would result in him needing less occupational therapy in the future. She thought this was also likely to have the result that he would be more willing to engage in physical activities with other children in the community.
Evidence of Dr Jill Ashburner
Dr Ashburner is the manager of Research and Development of Autism Queensland, and has 35 years of experience in the disability sector including a number of senior occupational therapist positions. We understand that for the past 12 years she has focused on autism research.
In a written document provided to the Tribunal on 5 November 2014, Dr Ashburner made reference to the diagnostic criteria for Asperger’s disorder and ASD referred to above, and went on to note that:
As indicated by the diagnostic criteria above, children with ASD have, by definition, social communication difficulties and restrictive, repetitive patterns of behaviour. The focus of interventions for children with ASD should be on these core diagnostic symptoms. According to an Australian report (Pryor & Roberts 2006), best practice guidelines for early intervention for children with ASD include:
(a) autism-specific curriculum content focusing on attention, compliance, imitation, language, and social skills,
(b)highly supportive teaching environments which deal with the need for predictability and routine, and with challenging behaviour, obsessions, and ritual behaviours,
(c)support for children in their transition to school, and
(d)support for family members including partnership with professionals involved in treatments. [37]
[37] Report of Dr Jill Ashburner, p 2.
After noting the recommendation that the applicant receive a range of equipment for a home-based therapy room with the stated aims of improving muscle strength, body awareness, balance, motor coordination, motor planning and bilateral coordination, she went on to note that:
The assessments provided suggest that [the applicant] is performing in the average to above average range in all these areas.
She accordingly commented “the recommendations for a home program focusing on these areas therefore seem to be unjustified”. Dr Ashburner went on to state:
The time that [the applicant] and his parents spend on this home program could therefore be more appropriately focused on the core difficulties of children with ASD including his social-communication skills with the aim of promoting successful participation in school and community settings. [The applicant] is also reported to have some issues with anxiety. According to a systematic review … Cognitive Behavioural Therapy (CBT) programs have been found to be effective in helping children with ASD to self-manage their anxiety. … A CBT approach may be effective and empowering for [the applicant], particularly as he is a bright child who has the capacity to self-reflect on his emotional regulation.[38]
[38] p 3.
Dr Ashburner’s conclusions included the following:
1. Based on the provided assessments of [the applicant] and current evidence underpinning interventions for children with ASD, the request for funding for equipment for a home based occupational therapy room is not justified.
2. This investment of time and money may be better directed to services to develop [the applicant’s] social-communication skills and to support his success in school and community settings. Investment into the development of [the applicant’s] capacity to self-manage his anxiety may also be cost-effective and empowering in the long-term.
…
4. It is recommended that the NDIA advise clients to seek intervention from therapy teams with ASD-specific expertise and a focus on family-centred inclusive practices, rather than private practices with a narrow focus on time-intensive sensory-based interventions which currently lack supportive evidence.[39]
[39] p 7.
Dr Ashburner also gave oral evidence at the hearing, which we found to be of great assistance.
Although these had not been detailed in her written report, in her oral evidence, Dr Ashburner indicated that her relevant qualifications and experience consisted of the following:
● Bachelor of Occupational Therapy;
·A PhD focussing on children with ASD, in particular sensory issues and impact on education;
·For the past seven and a half years she has been the Manager of Research and Development at Autism Queensland;
·She has been involved in a wide range of research activities, specifically involving children with ASD;
·Prior to that Dr Ashburner was a paediatric occupational therapist for over 30 years, including 14 years from 1992 to 2007 with the Queensland Department of Education, Training and the Arts as an occupational therapy adviser involved in programs with children with disabilities, including children with ASD;
·She has been involved in occupational therapy for many years in a number of senior positions; and
·She has authored eight journal articles on the needs of children with ASD, six of them particularly on sensory issues.
Throughout her oral evidence, Dr Ashburner adhered to the opinions expressed in her written report, and gave cogent and persuasive reasons for this. The effect of her evidence was that, to the extent that the occupational therapy proposed for the applicant was directed toward issues such as sensory motor skills, coordination, sequencing and body awareness, she did not see a clear need for this as the evidence suggested that the applicant was progressing well in all of these areas. In effect, she agreed with the comment made by Mr Mennillo in his report to the applicant’s general practitioner in March 2013 that the applicant did not have “a high degree of need for ongoing OT, speech or any other type of therapy.” [40]
[40] T19/127.
Dr Ashburner indicated that the available information suggested that the applicant was average or above average in most of the areas which his occupational therapy was seeking to address. To the extent that the occupational therapy room was intended to assist with managing the applicant’s “melt downs” or “shut downs”, or in other words managing and helping the applicant to manage his anxiety and moderate his arousal levels, Dr Ashburner indicated that she did not consider that an occupational therapy room would be effective in doing this. Rather, it was her opinion based on the research that the most effective form of therapy for the applicant in terms of managing his anxiety was likely to be cognitive behavioural therapy, best provided by a psychologist. She commented that as the applicant was clearly highly intelligent, this was likely to be particularly beneficial for him. In terms of self-regulation and moderating arousal levels, she indicated that the research suggested the most effective way of assisting the applicant with this was through regular short movement or activity breaks, preferably involving vigorous physical exercise. She said that the research suggested that these were likely to be beneficial for 40 - 90 minutes afterwards. She mentioned that this strategy also had the advantage that it could be used anywhere and did not have to involve any particular form of physical activity or equipment. For example, she indicated that performing 10 star jumps would be an effective “movement break” in this context.[41]
[41] This approach is also endorsed and reflected in the “Sensory Diet” designed for the applicant by Mr Klaassen-Smith and outlined in a document dated 31 May 2014: Applicant’s Documents, A11/42 – 43.
Dr Ashburner also indicated that the rationale underpinning the use of equipment such as that sought to be provided was similar to that underpinning sensory integration therapy and at this point in time, the research did not show this to be effective for children with ASD. Therefore, while she conceded that she had limited information available as to the applicant’s particular abilities, needs and challenges, she maintained that sensory integration therapy or similar approaches simply had not been demonstrated to be efficacious for children with ASD. She maintained that by way of contrast, CBT programs and movement breaks had demonstrated efficacy.
Dr Ashburner maintained that the applicant’s fine and gross motor skills were good for his age and he did not need occupational therapy to develop these at this stage. As to the efficacy of an occupational therapy room in managing the applicant’s anxiety or arousal levels, she also made the point that, even if this was effective, it would be of limited benefit to the applicant since it could only be used when he was at home. She said the advantage of CBT techniques and movement breaks was that they could potentially be employed wherever the applicant was, including at school or in other social situations.
Dr Ashburner also commented that therapies such as sensory integration therapy seemed to be based on an assumption that it was possible to retrain the brain or “fix” the impairments of people with ASD. However, in her opinion, it was more a question of managing these impairments or traits, rather than fixing or eliminating them. She also indicated that there were many ways of approaching issues such as turn-taking and sequencing, and the need to release emotion. She said it was not necessary to have particular equipment to address these issues. Dr Ashburner indicated she did not consider that an occupational therapy room would be of long-term benefit to the applicant.
Consideration
As we have indicated above, in considering whether the requested items of equipment are “reasonable and necessary supports”, we are required to have regard to the criteria in sub 34(1) of the Act, as further elaborated in the Rules. Importantly, the criteria set out in subs 34(1) are cumulative, so that if the equipment does not meet all of the criteria, it will not be a “reasonable and necessary” support for the purpose of s 34.
It is in this context that we propose to first address criterion subs 34(1)(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.”
Value for money
In addressing this criterion, we should first acknowledge that we accept that the applicant’s parents firmly believe that having occupational therapy equipment at home will be of significant benefit to him. We also accept that a number of the therapists involved with treating the applicant, including Mr Mennillo and Mr Klaassen-Smith, also consider that an occupational therapy room will be of benefit to the applicant, albeit that the idea to establish the room emanated from the applicant’s parents rather than from them.
Ultimately, however, we consider that in applying the NDIS legislation, it is our role to evaluate the respective costs and benefits of a proposed support having regard to all of the evidence available to us. In determining whether the relevant equipment represents value for money within the meaning of subs 34(1)(c), we note that the Rules require us to have regard, amongst other things, to:
…
(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);
…
(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).
As we understand the evidence, the benefits which the applicant says he is likely to derive from having an occupational therapy room at home include the following:
(a)Assisting him to develop his gross and fine motor skills;
(b)Assisting him with body awareness;
(c)Physical development and confidence;
(d)Strength, muscle tone, and postural control;
(e)Motor coordination;
(f)Modulation of arousal and self-regulation; and
(g)Management of anxiety/reduction of anxiety levels.
However, as Dr Ashburner has pointed out, on closer analysis, it is apparent that the evidence suggests the applicant is progressing well in many of these areas compared with other children his age. The assessment undertaken by Mr Mennillo in March 2013 suggested that the applicant was either average or above average in each of the areas indicated above relating to physical development (motor skills, neuro-motor development, gross and fine motor skills[42], i.e., areas (a) – (e)), and the further assessment in 2014 suggested he was continuing to progress very well in these areas.
[42] T19/128 - 129.
With respect to other areas, such as moderating his arousal levels, managing anxiety, self-regulation, and preventing/reducing “melt downs” and “shut downs” (areas (f) and (g)), there is a real issue in our view as to whether the provision of an occupational therapy room at home is likely to be of real assistance or benefit to the applicant.
We regard Dr Ashburner as an expert in the area of the provision of and likely benefits of occupational therapy for children with ASD. Her evidence is that it has not been established that occupational therapy of the kind which is proposed is of assistance to children with ASD in managing these issues. Dr Ashburner says that the results of research in this area suggest that the most useful form of assistance for the applicant to be given in managing his anxiety is the provision of cognitive behavioural therapy. In terms of self-regulation and moderating his arousal levels, the evidence suggests that the most effective approach is regular movement breaks, comprised of vigorous physical activity. Dr Ashburner says that so long as the activity is reasonably vigorous, it is likely to be effective and the exercise does not need to be of any particular type or involve any particular kind of equipment. Dr Ashburner points out that cognitive behavioural techniques and exercise breaks are both techniques which can be used by the applicant wherever he is, even when he is not at home. She says these approaches are likely to be much more effective for the applicant in the long term.
As we have indicated, we accept that the applicant’s parents and a number of his therapists believe that an occupational therapy room would be beneficial to him. We also accept that having an occupational therapy room at home would reduce the number of trips the applicant needs to make to the city, and slightly increase the amount of time he spends at school, which would be beneficial. We also accept that having equipment at home which might distract the applicant or could be offered to him as an incentive may, on occasions, assist his parents in managing some of the applicant’s challenging behaviours, and may on occasion assist in avoiding or preventing a “melt down” or “shut down”. However, as the applicant’s mother herself acknowledged, there are a number of strategies available to the applicant’s parents to address and manage the applicant’s behaviours, some of which can be deployed whether the applicant is at home or not.
Having carefully considered all of the material before us, including all of the reports provided by the applicant, the reports of Dr Ashburner and the research cited by her, we have concluded on balance that we are not satisfied that the provision of an occupational therapy room to the applicant is likely to be of long-term benefit to the applicant or substantially improve the life stage outcomes for him in managing the effects of his ASD. Leaving aside the question of whether all of the issues which have been identified are related to his ASD, given his rate of progress when compared with other children of his age, we are not persuaded that the applicant requires an occupational therapy room at home in order to assist with his physical development, gross and fine motor skills, body awareness, strength, muscle tone, postural control, coordination, or physical development or confidence. We accept that the applicant clearly does require assistance in the areas of anxiety and arousal management, and self-regulation, however, we are not persuaded that an occupational therapy room at home is likely to significantly assist the applicant with these issues. We accept what we regard as the expert evidence of Dr Ashburner that this type of intervention has not been shown to be effective in assisting with these issues, whereas CBT and movement breaks have been shown to be effective. We consider that it is appropriate that we be guided by expert evidence as to best practice in this area, and that it would not be appropriate for us to endorse or approve expenditure on items which expert evidence suggested were unlikely to be effective in achieving their intended aims.
As the cost of the requested equipment is significant, we have concluded that provision of the equipment would not represent “value for money” because we do not consider the cost of the relevant equipment to be reasonable, relative to the likely benefits of the equipment to the applicant.
We should also indicate that we have considered whether the cost of the equipment could nevertheless be justified on the basis that it is likely to reduce the number of formal occupational therapy sessions the applicant will need to undertake in Adelaide. However, we note that it is unclear on the evidence how long the applicant will continue to need to undertake occupational therapy for, or how often. It is also unclear, to some extent, how much less occupational therapy he would need if he had an occupational therapy room at home. It appears to us that one of the possibilities on the evidence is that, because he is progressing so well, the applicant will not require a great deal more formal occupational therapy in any event. In these circumstances, we are not satisfied that the provision of an occupational therapy room at home would result in a net saving in terms of the applicant’s occupational therapy expenses.
We have also considered whether the fact that the applicant’s brother would be likely to use an occupational therapy room should lead us to reach a different conclusion as to whether the room represents value for money from the point of view of the NDIS. The applicant’s brother is seven years old, has a diagnosis of ASD and is a participant in the NDIS. However, we have concluded that as the question of what supports are required by the applicant’s brother is not before us and we do not have jurisdiction with respect to it, it is not something we can take into account in assessing whether the requested equipment is a “reasonable and necessary” support for the applicant.
We should also add that we have considered whether any individual piece of equipment should be provided to the applicant as a “reasonable and necessary” support. However, we note that the intention of and rationale behind the applicant’s request was for a complete set of equipment to be provided so as to enable him to undertake effective occupational therapy at home. In those circumstances, having regard to our reservations as to the likely benefits of occupational therapy equipment to the applicant, and noting that he has access to the use of essentially the same equipment in the course of his formal occupational therapy sessions in any event, we are not persuaded that the provision of any individual piece of equipment or any combination of some or other of the items sought can be regarded as a “reasonable and necessary” support for the applicant within the meaning of s 34.
As the criteria in subs 34(1) are cumulative, and we have concluded that the criterion in subs 34(1)(c) is not satisfied, it is not strictly necessary for us to address any of the other criteria. However, we should indicate that, for essentially the same reasons as those we have given in relation to subs 34(1)(c), had it been necessary for us to address it, we would not have been satisfied that the proposed occupational therapy room “will be, or is likely to be, effective and beneficial for [the applicant] having regard to current good practice”, for the purposes of subs 34(1)(d).
Accordingly, we have decided that we should uphold the decision under review insofar as it did not include the requested occupational therapy equipment in the applicant’s NDIS plan.
OTHER MATTERS AGREED BETWEEN THE PARTIES
Although we have ultimately concluded that the equipment sought by the applicant does not meet the requirements of the NDIS Act, we note that subsequent to the applicant’s request for review, the NDIA agreed to provide a number of additional items, and a further draft plan has been agreed upon, which the parties have asked us to give effect to in our Decision.
As we are also satisfied that the additional supports agreed to by the NDIA[43] should be provided to the applicant, we have decided to accede to the parties’ request that we vary the decision under review so as to give effect to their agreement.
[43] As outlined at [26] above.
DECISION
The decision under review is varied so as to incorporate the terms of a further plan (numbered 2 – X2ZHFT – V 4.2) printed by the respondent on 12 November 2014, with a review date of 6 February 2015, and which is annexed to this Decision.[44]
[44] A copy of the plan was annexed to the Tribunal’s written Decision dated 25 November 2014, which was sent to the parties. However, as it is the subject of a confidentiality order (see [5] above), the plan has not been annexed to this version of the Tribunal’s Decision and Reasons for Decision.
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