ZPCZ and CEO, National Disability Insurance Agency (NDIS)

[2025] ARTA 1363

ZPCZ and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1363 (15 August 2025)

Applicant/s:  ZPCZ

Respondent:  CEO, National Disability Insurance Agency

Tribunal Number:                2024/1674

Tribunal:General Member D Heron  

Place:Brisbane

Date:15 August 2025

Decision:Pursuant to subsection 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) Tribunal sets aside the decision under review and this matter is remitted to the Agency for reconsideration with a direction that ZPCZ’s Statement of Participant supports are to include the following additional supports:

(a)7 hours weekday rate for support worker assistance for 48 weeks;

(b)2 hours per week for supervision by a Certified Behaviour Analyst for 48 weeks;

(c)12 hours per year for team meetings;

(d)4 hours per year for NDIS plan review reports and assessments;

(e)16 hours per year for paediatric dietician;

(f)The date by which the Respondent must reassess the plan is to be 12 months after the date on which the supports above are included in the statement of participant supports.

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

General Member D Heron

Catchwords

NATIONAL DISABILITY INSURANCE SCHEME –- reasonable and necessary supports – consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) – ABA therapy – multidisciplinary team meetings – swimming lessons – support worker assistance – dietician – nutritional supplements – consumables – schedule 2.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)

Cases

FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114
McGarrigle v National Disability Insurance Agency
National Disability Insurance Agency v WRMF
National Disability Insurance Agency v KKTB
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)

Secondary Materials

NDIS – Operational Guidelines – Reasonable and necessary supports

Statement of Reasons

BACKGROUND

1. ZPCZ (the Applicant) is a 4 year old child who is a participant in the National Disability Insurance Scheme (the NDIS). ZPCZ met access to the scheme in September 2023.

2. ZPCZ has diagnoses of Autism Spectrum Disorder level 3 and Global Development Delay (GDD). While this decision will inevitably focus on ZPCZ’s limitations, deficits and challenges, the Tribunal acknowledges ZPCZ’s parents shared his innate abilities and strengths such as, his ability to read multi-syllable words, memorise the complex scientific names of dinosaurs using their full binomial nomenclature, counting to 10,000 and undertaking complex addition and subtraction.  

3. ZPCZ parents have applied for review of a decision of the National Disability Insurance Agency (the Agency) regarding reasonable and necessary supports to be funded by the scheme. On 25 January 2024 the ZPCZ’s statement of participant supports was approved by a delegate of the Chief Executive Officer (CEO) of the Respondent.[1]

   [1] Joint Hearing Tender Bundle (JTB), T13 dated 1 March 2023 page 80.

4. On 13 February 2024 ZPCZ requested an internal review of the decision to approve the statement of participant supports in the plan.[2] On 19 March 2024 a delegate of the CEO made a decision to affirm the original decision (Internal Review Decision).[3]

   [2] JTB, T2 dated 5 July 2023 page 19.

   [3] JTB, T1 dated 6 July 2023 page 6.

5. On 20 March 2024 ZPCZ filed an application for review in the Administrative Appeals Tribunal (the AAT). I note a new plan for ZPCZ was approved on 17 July 2024 and by operation of s 103(2)(e) this review application is taken to be a review of the plan approved on 17 July 2024. From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is made by the Tribunal.

6. At the hearing held on 8 April and 3 July 2025 via Microsoft Teams, ZPCZ was represented by his parents and the Agency was represented by Ms H Robinson of Counsel, instructed by Ms A Lay of Moray & Agnew.

7. The Joint Tender Bundle (JTB) was admitted into evidence and marked as Exhibit 1. ZPCZ’s mother gave oral evidence, and the Agency called Dr P, Paediatrician.

   THE LEGAL FRAMEWORK

   National Disability Insurance Scheme Act 2013 (Cth)

8. The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in section 3. As well as giving effect to Australia's obligations under the UN Convention on the Rights of Persons with Disabilities, they include:

   ·supporting the independence and social and economic participation of people with disability;

   ·providing reasonable and necessary supports for participants; and

   ·enabling people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports.

9. In relation to children, subsection 5(f) of the NDIS Act states that:

   …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

   (iii)      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.

10. I note the following aspects of the statutory regime. Section 34 of the NDIS Act identifies what establishes a ‘reasonable and necessary’ support under the scheme.

11. At the time of the commencement of the hearing section 34 of the NDIS Act states:

    Reasonable and necessary supports

    (1)For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

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

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

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

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

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

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

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

    Note: For the purposes of paragraph (aa):

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

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

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

12. To understand what constitutes a NDIS Support I turn to section 10 of the NDIS Act for the purposes of section 34(1)(f) of the NDIS Act (as amended). Section 10 of the NDIS Act states:

    Supports that are NDIS supports

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

    (a)  participants or prospective participants generally; or

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

    Note:  The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection   13(3) of the Legislation Act 2003 ).

    (2)  Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection   (1), the Minister must be satisfied:

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

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

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

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

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

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

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

    Supports that are not NDIS supports

    (4) The National Disability Insurance Scheme rules may declare that a support is not an NDIS support for:

    (a) participants or prospective participants generally; or

    (b) a class of participants or prospective participants.

    (j) Note: The National Disability Insurance Scheme rules may declare a support for the purposes of this subsection by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (5) Before making National Disability Insurance Scheme rules declaring a support for the purposes of subsection (4), the Minister must be satisfied:

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

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

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

    (a) the support is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and

    (b) the support would, apart from subsection (4), be an NDIS support for the participant; and

    (c) the participant applies to the CEO in accordance with subsection (7) for the determination; and

    (d) the CEO is satisfied that:

    (i) the support would replace one or more other supports that are NDIS supports for the participant; and

    (ii) the cost of the support is the same or lower than the total of the costs of the supports it would replace; and

    (iii) the support would provide the same or a better outcome for the participant than the supports it would replace; and

    (iv) any other conditions specified in the National Disability Insurance Scheme rules for the purposes of this subparagraph are met in relation to the support, the participant, or both.

    (k) Note 1: A determination may be revoked under subsection 33(3) of the Acts Interpretation Act 1901.

    (l) Note 2: The National Disability Insurance Scheme rules may prescribe a support for the purposes of paragraph (a) by identifying a class of supports (see subsection 13(3) of the Legislation Act 2003).

    (7) An application under paragraph (6)(c) must:

    (a) be in the form (if any) approved by the CEO; and

    (b) include any information, and be accompanied by any documents, required by the CEO; and

    (c) be made in accordance with any other requirements specified in the National Disability Insurance Scheme rules for the purposes of this paragraph, which may include requirements as to the circumstances in which an application may, or may not, be made.

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

    …….

13. The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules) are applicable to the determination of whether requested supports are ‘NDIS supports’. Schedule 2 provides the list of supports that are not ‘NDIS supports’ for the purposes of s10(1) of the NDIS Act.

14. Section 35 of the Act provides for the creation of rules regarding the provision of reasonable and necessary support or general support that will not be funded or provided under the NDIS. The relevant rules made under ss 33 and 34 of the Act in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules).

15. Rules 3 and 5 of the Support Rules relate specifically to subsections 34(1)(c) - (e) of the NDIS Act and state:

    Value for money

    3.1     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).

    Effective and beneficial and current good practice

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

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

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

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

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

    General criteria for supports

    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.

16. Relevantly in McGarrigle v National Disability Insurance Agency[4] at [43] Mortimer J (as her Honour then was) explained:

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

    [4] McGarrigle v National Disability Insurance Agency [2017] FCA 308.

17. The phrase ‘reasonable and necessary’ is not defined in the Act. In discussing the phrase  McGarrigle Mortimer J stated as follows: [5]

    ‘Whether a support is “reasonable” requires a different assessment to whether a support is “necessary”…the word “reasonable” would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase “reasonable and necessary supports”.’

    [5] [2017] FCA 308 at 91.

18. The Full Court in National Disability Insurance Agency v WRMF[6] also considered the meaning of reasonable and necessary supports:

    ‘The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated with these two particular words, which are readily understood as conveying different meanings…Both adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them.

    Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant.’

    [6] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 149-151.

19. In National Disability Insurance Agency v KKTB[7] the Full Court stated that:

    'Each decision ... to approve a statement of participant supports is a decision about an individual, and their needs ...the legislative scheme demands a focus that is very much on the support needs of the individual participant.’

    [7] [2022] FCAFC 181 at 26.

1. It is important that I consider the purposes and objects of the Act in conformity with section 34(1) noting that if one of the requirements in ss 34(1)(aa)-(f) is not satisfied, then the particular item does not meet as a reasonable and necessary support. The amendments to the NDIS Act will apply to this review.[8]

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

   OPERATIONAL GUIDELINES

2. While the Tribunal is not bound by any policy set out in the NDIS Operational Guidelines, it should consider relevant government policy which is not inconsistent with the provisions or objects of the legislation.[9] The Guidelines relevant to this review are the NDIS – Operational Guidelines - Reasonable and necessary supports.

   [9] Ibid at 171.

   ISSUES

3. ZPCZ currently attends an Early Behavioural Early Intervention (EBEI) program for children with autism each week for a total of 16 hours.[10] This is a program based on the principles of Applied Behavioural Analysis (ABA) and undertaken via 1:1 sessions between ZPCZ and a therapy assistant, who is supervised by a Board Certified Behaviour Analyst. These sessions are undertaken in 2 hour blocks. During these sessions ZPCZ is focussed on learning to learn skills and enhancing his daily living skills through the therapist breaking down tasks into small sequential steps, using repetition for his skill acquisition and retention.

   [10] The name of the EIBI program has been deliberately omitted to preserve ZPCZ’s confidentiality.

4. ZPCZ’s parents request the following supports to be funded in his NDIS plan:

   ·ABA therapy:

   (a)20 hours per week of therapy assistant funding;

   (b)Therapy assistant session progress notes and data summaries of 15 minutes for 10 sessions per week;

   (c)Program Supervision by a Board Certified Behaviour Analyst (other professional) of 4 hours per week;

   (d)2 hour x bi-monthly Team Planning session to review progress, what is working, what is not, goal updates, includes report and minute writing; and

   (e)NDIS Plan review assessment and report of 5 hours per year.

   ·Capacity Building:

   (f)Difference between group and individual swimming lessons $740.00 per year

   (g)Additional 47 hours per year for therapist travel (with a combined total of 296 hours for speech therapy, occupational therapy and therapist travel).

   ·Paediatric Dietician:

   (h)20 hours per year (2 hours bi-monthly);

   ·Supplements

   (i)Pediasure - $1,048.95 per year

   (j)Benefibre - $124.95 per year

5. The Agency contends that the above supports are not ‘reasonable and necessary’ for the purposes of s34(1) of the NDIS Act. The Agency accepts the EIBI therapy will assist ZPCZ to pursue his plan goals and assist him to undertake activities that will facilitate his social and economic participation. The Agency disputes the quantum of hours of therapy sought per week.

6. The Agency takes the position that the following hours are reasonable and necessary:

   ·ABA therapy:

   (a)18 hours per week for EIBI, Level 2 therapy assistant;

   (b)1.80 hours per week for progress report writing;

   (c)2 hours per week for program supervision by a Behaviour Support Consultant

   (d)12 hours per year for team meetings; and

   (e)4 hours per year for plan review assessment and reports.

   ·     Paediatric dietician:

   (f)16 hours per year for paediatric dietician

   THE CURRENT PLAN

7. This current plan was approved during the course of the Tribunal process. By operation of s103(2)(e) this application for review is taken to be an application for review of this plan approved 17 July 2024.

8. ZPCZ is currently funded for a yearly total of $149,708.68, comprising of the following supports:[11]

   [11] JTB, 9, Current plan date 17 July 2024 – 17 July 2025 p524

Core supports
Core support	$459.00 per year.
Capacity Building
Health and Wellbeing: [stated support]	$2327.88 per year.
Improved daily living skills: [stated support]	$145,572.72 per year.
Capital Supports
Assistive technology: [stated support]	$1,249.00 per year.
Repair and Rental: [stated support]	$100.08 per year.

1. The current plan goals for ZPCZ are:

   ·to learn and improve his emotional development.

   ·to learn and develop his cognitive skills.

   ·to learn and develop his selfcare skills to increase his everyday independence.

   ·to learn and develop his fine and gross motor skills to participate in everyday activities.

   ·to learn and develop his social skills in all environments.

   ·to learn and develop his language and communication skills in all environments.

   Applicant’s current weekly routine

2. ZPCZ’s typical week is broadly described as follows:

   (a)On weekday mornings and Saturdays ZPCZ’s father leaves for work at 4.00 AM. ZPCZ wakes around 5.30 AM and his mother gets his younger sister and ZPCZ ready for the day. These morning routines requires extensive preparatory prewarning and negotiation with ZPCZ about the upcoming activities for the day, with breakfast for ZPCZ described as a long and stressful process.

   (b)ZPCZ attends mainstream preschool on Mondays and Tuesdays from 9:30 AM to 1:30 PM. Getting ZPCZ into the car and then into his preschool requires extensive negotiations and he will often engage in refusal behaviours. At preschool on Mondays, he undertakes a session of his EIBI therapy.

   (c)He will also undertake his speech therapy on Mondays.

   (d)At preschool on a Tuesday his EIBI therapy provider will attend to undertake another 2 hour session. After preschool on Tuesday afternoons, he undertakes his speech therapy at his home. 

   (e)He then attends his EIBI therapy provider each Wednesday, Thursday and Friday. This is typically for two sessions per day of two hours duration each session. There is an hour break between the sessions, where his mother will take him to the adjacent park for food and play.

   (f)On Wednesday afternoons after his EIBI therapy concludes, he undertakes his occupational therapy session for one hour.

   (g)The afternoon, dinner time and bedtime routines involve his father getting home around 5.30 PM. The family has dinner, which involves ZPCZ’s selective eating and extensive negotiation for ZPCZ to eat, he will not sit at the dinner table. They undertake the bathtime and reading routines. ZPCZ now takes melatonin to help with his sleep schedule, as he was previously staying awake and moving around the home making noise when his parents were attempting to put his sister down for the night.

   (h)ZPCZ undertakes his aquatic program early on Sunday mornings. He also is engaged with his dietitian and his paediatrician.

   EVIDENCE

3. I have considered all the written evidence provided in the 2,667 page JTB filed with the Tribunal, the oral evidence provided at the hearing and the parties’ closing submissions. I will refer in my decision to what I consider to be significant aspects of the evidence. However, the fact that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before me into account in reaching my decision.

   ZPCZ’s Mother

4. ZPCZ’s mother gave evidence at the hearing, and her oral evidence can be summarised as follows:

   ·ZPCZ began his EBEI program in November 2023, attending around 5 hours a week.

   ·From late 2023 he began attending around 13 hours a week.

   ·When his NDIS funding was increased in 2025, he began attending for 16 hours a week. He currently attends the program for 16 hours a week.

   ·He undertakes 2 hours of speech therapy a week, with a separate speech consultant once a fortnight.

   ·Attends 1 hour of occupational therapy a week.

   ·Usually sees the paediatric dietician monthly, however there are some changes coming up due to staff maternity leave.

   ·ZPCZ’s attends his aquatic program Sunday mornings at 8.00 AM when there is reduced noise, before the pool turns on its water features such as the waterfalls, and before there are too many people at the venue.

   ·On the weekend she aims to take ZPCZ and his younger sibling out to participate in the community, trying to choose places and activities that ZPCZ will do ok with, depending on his emotional regulation.

   ·If attending the local café, ZPCZ will only tolerate sitting out the back where it is quieter, similarly if ZPCZ does agree to attend the local club, his parents must request management to turn off the TV sets and they will only attend when no functions with music are happening.

   ·Many times, ZPCZ will refuse to participate in social or community outings. In these circumstances one parent will be required to stay home with ZPCZ while the other takes his younger sibling to undertake the promised activity.

   ·Cannot go to visit friends or families houses due to ZPCZ tolerances and sensitivities, could not attend 2024 family Christmas celebrations.

   ·Unable to play outside in the backyard due to ZPCZ’s absconding and his lack of personal safety awareness.

   ·Parents plan to defer the start of his formal schooling to 2027.

5. ZPCZ’s parents also supplied two written Statements of Lived Experience, with their statement dated 15 February 2025 detailing:

   [ZPCZ] is an irreplaceable member of our family. He is sweet, loving, animated, excitable, and a bright little boy. He has a unique way of seeing the world and a quirky sense of humour that cannot be replicated. However, [ZPCZ] disabilities still remain an enormous challenge for [ZPCZ] and for us as a family. His dysregulation continues to exclude both [ZPCZ] and the rest of our family unit from social and recreational activities on a day-to-day basis. Behaviours of crying, screaming, dropping to the floor, thrashing around, mouthing objects, no safety awareness, undressing in public and low impulse control exclude [ZPCZ] and our family from experiencing the world as any other family would expect.[12]

   [12] JTB, A155, 2633.

6. The evidence is clear the ZPCZ’s parents are dedicated, loving, tireless advocates for him, seen relevantly in his father’s closing oral submission when providing this message directly to their son:

   We promised to advocate relentlessly for whatever assistance you require, just like those countless daily videos from work showing bulldozer excavators hard at work.

   We hope one day you will learn there is no obstacle or limit in life once you learn how to put your mind into a bulldozer mode, dozer mode and simply keep pushing forward no matter how daunting the challenge is.

   We hope one day in the future you may even be able to comprehend the efforts involved and the love we have for you.[13]

   [13] Transcript, closing submissions day two 1:56:48.

   Dr P – Consulting Paediatrician

7. Dr P is a Paediatrician engaged by the Agency to provide expert opinion. Dr P is a practising General Paediatrician and has worked in public and private practice for the past 30 years.

8. Dr P is currently employed as the Medical Clinical Governance Adviser for Pindara Private Hospital and for John Flynn Private Hospital. He works as the National Medical Advisor to Ramsay Health Care Clinical Governance. He is appointed as Clinical Adjunct Professor and sub-Dean at Bond University. His practice encompasses all aspects of general paediatrics. including children with complicated disorders requiring multidisciplinary management.[14]

   [14] JTB, R10, 543.

9. Dr P gave oral evidence as summarised below:

   ·He undertook a video conference of 1 hour with ZPCZ’s parents on 4 September 2024 after reviewing the materials provided to him by the Agency.

   ·In his private practice, many of his former and current patients have diagnoses similar to ZPCZ.

   ·He has been familiar with ABA therapy since the early 1990’s and has had many of his patients’ undergoing forms of ABA therapy over the last 25 years.

   ·In his opinion ABA can be generally helpful for children who have difficulties with activities of daily living, poor emotional regulation or ability to focus.

   ·His observations are that ABA is not as effective for increasing children’s social skills or communication skills.

   ·When a child is engaging in multimodal therapy with assistance from two speech therapists, an occupational therapist, dietician as well as the ABA therapy, it becomes difficult to assess the child's innate rate of progress due to a specific modality or due to the hours of that modality.

   ·Providing definitive answers are hard because of the nature of autism. Many children experience a fluctuating course with their development, therefore and you can inadvertently think one intervention has either been positive or negative.

   ·A responsible approach by therapists in assessing a child’s rate of progress, is often to take a break and then come back to determine how the particular intervention has or has not assisted the child’s progress.

   ·In relation to the medical definition of failure to thrive, he explains it means when a child’s weight or rate of weight gain is significantly below that of other children of similar age and gender.

   ·In reviewing the materials provided his opinion is that ZPCZ does not meet the medical definition for failure to thrive, given his weight and height chart information.

   ·Supportive of 1 hour of speech therapy ongoing, with the flexibility to go to two hours as needed.

   ·Supportive of 16 hours of ABA therapy using a step-down approach as ZPCZ nears formal schooling.

10. Dr P also provided his assessment dated 9 September 2024. In his report Dr P agreed with the diagnosis of ASD Level 3 and GDD. Dr P in his assessment report, states the following recommendations:

    ABA therapy:

    (a)16 hours of one-to-one assistance with a step-down approach of 2 to 3 hours of ABA therapy on 3 to 4 mornings each week from the second half of 2025 and ceased by the end of 2025.

    Speech therapy:

    (b)1 hour of speech therapy per week, with flexibility to go to 2 hours per week when he seems available for therapy and shows motivation to master a new skill set.

    Occupational therapy:

    (c)ongoing occupational therapy.

    Dietitian:

    (d)4 hours per year for a dietician.

    Nutritional Supplements:

    (e)Supplements are halved for two months, halved again for two months and then ceased by end of 2025, with appropriate clinical and growth reviews to ensure no unexpected negative consequences.

    Other:

    (f)trial of medication for anxiety.

11. Dr P states on his review of the materials, that he cannot be certain whether gains made are related to a specific individual therapy, or are intrinsic gains which would have made over ZPCZ current lifetime, due to accessing a number of therapies simultaneously.

    Evidence of Dr P

12. During cross-examination of Dr P ZPCZ’s parents took issue with his credibility.  ZPCZ’s parents assert Dr P is not impartial as he is paid for his expert opinion by the NDIS and has provided this opinion in many other similar Tribunal matters. They also pointed to two issues in his written report, one noting the name on the first page of Dr P’ report [redacted] was not ZPCZ’s name, and secondly that he referred to ‘blood test results’ when ZPCZ has never undertaken a blood test. Lastly, they reference Dr P’ written statement that ZPCZ has ‘a likely diagnosis of moderate to severe intellectual impairment’ as being at odds with the opinion of his Paediatrician Dr G and of their own lived experience.

13. ZPCZ’s parents in their letter dated 18 November 2024 assert that:

    [Dr P] is on public record for providing services to the NDIS for disputes of matters relating to ABA therapy funding requests, in which he has consistently recommended significantly lower number of hours, regardless of the level of ASD or circumstances. The IME report should not be considered as a valid ‘Independent’ review as it is subject to professional biases; has not implemented any independent standardised assessment methods, metrics or procedures to avoid the bias.[15]

    [15] JTB, 5, 59.

14. In my view Dr P presented as a knowledgeable and sound expert witness, who withstood a lengthy cross examination by ZPCZ’s parents on both his credibility and independence.

15. In considering the written and oral evidence provided by Dr P, I am satisfied that it is procedurally fair for both parties to be able to call their own witnesses and make their case pursuant to section 55 of the ART Act. Section 55 of the ART Act mandates that each party be given a reasonable opportunity to present their case, access relevant information, make submissions and adduce evidence. From this point it becomes the Tribunal’s responsibility to decide the weight to be given to the evidence that is adduced.

    Dr G - Paediatrician

16. Dr G is ZPCZ’s treating paediatrician. Dr G was not called to give oral evidence at the hearing, however he provided written evidence to the Tribunal dated 6 May 2024 and a subsequent letter dated 7 August 2024. Dr G also provided his report dated 7 September 2024.

17. Dr G recommends that ZPCZ undertake 15-20 hours per week of ABA therapy, weekly speech and occupational therapy, bimonthly paediatric dietitian and receive funding for the nutritional supplements.

18. In relation to his report dated 7 September 2024 Dr G states that ZPCZ has significant communication challenges and requires 1:1 support in preschool. He recommends starting risperidone, continuing with his ongoing intensive interventions (speech therapy, occupational therapy, ABA and dietetics support), and the possible exploration of oxytocin nasal spray.

    Ms D – Supervisor at EIBI program

19. Ms D is the Program Supervisor for the EIBI program that ZPCZ attends. She did not provide oral evidence at the hearing. She did provide a letter dated 13 November 2023. In this letter she recommends 20 hours per week of EIBI therapy provided through therapy assistant sessions; 4 hours per week for program supervision; and 5 hours per week for plan review assessment and report writing.

20. In her review report dated 12 April 2024 she restates her recommendation and adds an additional recommendation for 2.5 hours per week for undertaking summary notes of 15 minutes per session.

    Ms M – Acting Clinical Director at EIBI program

21. Ms M the Clinical Director (Acting) at the same EIBI program, provided a report dated 7 November 2024 which explained her recommendation for program supervision provided at a rate of 20% for 2 hours per 10 hours of therapy. She states this is due to the complexity of ZPCZ’s disabilities, citing the ASD Best Practice Guidelines published in 2012 by the Behavior Analyst Certification Board, the United States organisation which certifies Behaviour Analysts.

    Ms V – occupational therapist

22. Ms V is ZPCZ’s occupational therapist. She supplied a report dated 14 November 2023 where she recommended weekly occupational therapy sessions, nutritional supplements, support coordination, consumables and private swimming lessons. She also provided a letter dated 19 June 2024 in support of funding for formula/supplements and the extra funding hours for the paediatric dietician.

    Ms G – speech pathologist

23. Ms G, a speech pathologist provided her assessment report dated 9 November 2023. She recommends a minimum of one session of speech pathology per week along with a home program for an Augmentative and Alternative Communication (AAC) support. She also recommends biweekly sessions speech therapy sessions (80 hours), report writing (4 hours), intensive sessions during holiday period (5 hours per week), preschool visit (8 hours), reassessment report (4 hours), occupational therapy and consumables.

    Ms C – speech therapist

24. Ms C provided her letter dated 11 April 2024. In her letter she states that 6 months speech therapy together with intensive ABA have seen improvement in ZPCZ’s joint attention, functional language across settings, play and social skills, emotional regulation and behaviour, understanding of language/receptive language and use of language/expressive language. She recommended bi-weekly speech therapy sessions over 48 weeks, this would be comprising of one session at his preschool and one session at home.

1. Ms C provided another letter dated 15 November 2024 reiterating her recommendation for speech pathology at home and at ZPCZ’s preschool. She states this will allow for higher levels of modelling opportunities in the home setting and the generalisation of skills in his preschool setting. She also restates her recommendations for bi-weekly speech therapy and that face to face sessions are preferred over telehealth consultations.  

   Ms D - dietician

2. Ms D is ZPCZ’s dietician and she provided a letter dated 12 April 2024 explaining that ZPCZ’s sensory sensitivities impact his ability to achieve an adequate amount of nutrition orally. She states that ZPCZ requires regular dietician involvement to monitor his health and wellbeing along with his growth. She recommends 20 hours of dietician support per year and also recommends nutritional supplements.

   Ms P – paediatric dietitian

3. Ms P is ZPCZ’s paediatric dietician and she provided a letter dated 11 November 2024. She discusses ZPCZ’s limited food acceptance which is related to sensory sensitivities due to diagnosis of ASD level 3. She states he requires specialised HEN formula to provide around 50% of his estimated energy and protein requirements. She further states as at early November 2024, ZPCZ’s growth regressed. She states his weight percentile dropped from the 25th percentile to the 10th percentile. She recommends 20 hours of dietician support per year and the nutritional supplements Pediasure and Benefibre.

   Ms E - Occupational Therapist

4. Ms E supplied her Occupational Therapy assessment dated 20 February 2025. She describes that ZPCZ experiences severe impairment across all functional domains. She recommends 15 hours of support worker assistance per week to assist ZPCZ. She states that support workers are required for enabling his safe community access and regular safe outdoor activities for typical play experiences. She notes the risks of ZPCZ having limited access to the community and outdoor play, are increases in his emotional dysregulation due to being unable to meet his sensory needs and will also exacerbate carer stress.

5. In her assessment Ms E includes photos depicting ZPCZ’s backyard stating that these images demonstrate the importance of 1:1 supervision for [ZPCZ] due to access to the road, water drainage, and the steep drop offs.[16]

   [16] JTB, A147, 2566.

   Evidence about ZPCZ’s progress with EIBI therapy

6. ZPCZ has been attending the EIBI therapy provider since November 2023. His parents supplied a table dated 3 March 2024 noting behaviours ZPCZ exhibits with observations about each behaviour and progress seen from themselves, his speech therapist, his occupational therapist and his EIBI therapy provider.[17]

   58.The table notes ZPCZ’s improvements such as his ability to point to things he wants and his ability to make some verbal requests using visual cues and prompting. The table notes that these skills were taught at his EIBI therapy, then shared with his parents and speech therapist who also started utilising the cues and prompts to gain verbal responses.

   [17] JTB, A31, 1039-1040.

7. In relation to emotional dysregulation, recorded in this table as tantrums/meltdown, the frequency of these is chronicled from his parents as decreased with more work needed though. When ABA sessions not held tantrums returned.

8. The table notes ZPCZ’s tolerance to perform undesired task allocation has improved with his parents observing that he can carry out undesired tasks without tantrum, or immediately trying to avoid the task.

9. His parents have listed does not make eye contact and his EIBI therapy provider notes this has improved through their use of highly motivating play. Parents also note improvement, [is] now looking at us across a room on occasions and taking close looks at our faces during play. In later documents the Tribunal notes this behaviour has been rightly identified as a valid neuro-affirming communication style and as such no further data is captured in relation to this.

10. His parents have listed makes squealing noises and his EIBI provider column noted when 1:1 ABA ceased for a period, the frequency of the squealing returned to a high level. His parents noted a change in that it is ongoing when excited, scared or over stimulated by the environment. Frequency of squealing decreases when…mentally stimulated and interacting 1:1.

11. His parents have listed does not play with others and the EIBI provider column notes ability to play with others and his joint attention skills by identifying the correct motivation and building upon his baseline play skills in increments. Similarly, his parents note improvement stating he is seeking out parents on occasion to help with his play. If adults join in with his play…can often be motivated to play together.

12. His NDIS Review Report from EIBI Provider dated 12 April 2024 notes he has achieved the goal of being able to fill in the phrase ‘ready set…?’ with the word ‘go’ to continue play with an adult. He is continuing to progress and work on vocal imitation, he is able to follow one step receptive instructions from an adult and is working towards being able to follow the safety instruction ‘stop’ within 2 seconds.[18]

    [18] JTB, A37, 1086-1090.

13. In May 2024 the team meeting between ZPCZ’s mother, two EIBI behaviour therapists and the supervisor, under Clinical Program Updates is noted that ZPCZ has mastered receptive nouns, vocal imitation, ‘show me’ verbs, and is continuing with creative play and his vocal requesting.[19]

    [19] JTB, A134, 2474.

14. In the September 2024 team meeting with ZPCZ’s mother, the supervisor and two therapists under the heading Therapy Assistant sessions notes an increase in his variety of spontaneous play activities over the last 6 weeks. He is initiating a lot more play and enjoys different materials each session and able to get through most of the programs each session, although isn't always able to hit the target number of trials.

    Literature Review

15. This matter included a significant amount of published literature and research review material in respect of early intervention and ABA therapy for children with autism. I have considered all of this material and accordingly I refer chronologically to what I consider as relevant.

16. The Tribunal was referred to the Groen, Wynn, and Smith study (Groen et al 2000) a randomised control trial where children aged between 18-42 months at time of entry, were randomly assigned to either the intensive treatment group or the parent training group. The findings were that the intensive treatment group outperformed the parent training group on measures of intelligence, visual-spatial skills, language, and academics, though not in adaptive functioning or behaviours of concern.

17. ZPCZ’s parents referred the Tribunal to the August 2013 report titled Cost Benefit Analysis of Providing Early Intervention to Children with Autism: Estimation of the net economic benefit of early intervention for a cohort of children with autism (Synergies Economic Consulting 2013).[20] This cost-benefit analysis of early intervention for children with autism demonstrates a significant net economic benefit and extending to long-term cost savings related to healthcare, education, and social support modelled over the lifetime of the cohort. The report explains the research has shown that for every dollar invested in autism-specific early intervention, there can be a societal return of $6.16, with $4.58 in direct cost savings for the NDIS. The limitation of this report to the current circumstances is the comparisons were between children without access to early intervention vs children undertaking early intervention. This has little relevance, as this matter turns on quantity of hours per week, rather than the question of overall value of EIBI.

    [20] JTB, A5, 259.

18. Early Childhood Intervention Australia published the National Guidelines – Best Practice in ECI in 2016. These Guidelines emphasise engaging with children in their natural environments via participating in daily routines, at home, in the community, and in early childhood settings. The Guidelines state that these natural learning environments contain many opportunities for all children to engage, participate, learn and practise skills, thus strengthening their sense of belonging.[21]

    [21] JTB, A80, 1374.

19. ZPCZ’s parents also referred the Tribunal to the 2016 NDIA funded research project report by Roberts and Williams titled Autism Spectrum Disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers (Roberts and Williams 2016) evaluated the research available at the time the scheme was beginning to roll-out across Australia.[22] Relevant commentary included that children with a diagnosis of Autism should receive 20 hours per week of early intervention. The report states that:

    Reviews and guidelines that provide evidence about intensity (hours per week) and duration of interventions report that comprehensive programs that have been evaluated and shown to be effective are most commonly provided for between 15 and 25 hours a week, suggesting a midpoint of 20 hours, and for at least 1 year. [Tribunal emphasis]

    [22] Roberts, J., & Williams, K. J. (2016). Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers. JTB, A82, 1430 -1519.

20. Roberts and Williams 2016 base the recommendation of 20 hours per week of early intervention is on a ‘midpoint’ evaluation of the programs that were evaluated, which indicated that between 15 and 25 hours per week was most commonly effective. The report also states:

    Evidence that underpins guidance about supports for preschool children with autism and their families continues to evolve. It is likely our understanding of best practice for support and intervention will also be influenced by changes in our understanding of autism and its causes, which will be linked in turn to the best methods for diagnosis. This means that any recommendations provided will need to be updated as new evidence emerges or as reviews and guidelines based on evidence are published, for example a NICE guidelines update is expected in 2016.[23]

    [23] JTB, A82, 1449.

21. Also tendered by ZPCZ’s parents was the NDIS Independent Advisory Council’s report titled Promoting Best Practice in ECI in the NDIS dated March 2020. The report states:

    Australian guidance for children with ASD differs from guidance for children with ASD in UK, Scotland, US and NZ in its focus on:

    a)     staff ratios and ‘fixing the child’ with less focus on working with the child, family and carers to respond to developmental needs in natural environments
    b)    transition to opportunities for interaction with peers rather than on staff supporting parents and carers especially of very young children in the home, in child care and other natural settings
    c)    in summary Australian guidance appears to prioritise expert intervention to get the child ready for participation where international guidance for children with ASD promotes the use of experts to guide parents and carers in natural settings.

    The IAC recommends the development of new practice guidelines for children with ASD to support best practice in ways that are sustainable for the NDIS.[24]

    [24] JTB, A86, 1583.

22. A summary of Rodgers, Yoda et al A Multisite Randomized Controlled Trial Comparing the Effects of Intervention Intensity and Intervention Style on Outcomes for Young Children with Autism (Rogers et al 2021) was tendered by ZPCZ’s parents. This study tested the effect of two levels of treatment intensity (by reference to the number of hours) and two treatment styles on the progress of young children with autism. Their findings concluded:

    Neither treatment style nor intensity had overall effects on child outcomes in the 4 domains examined. Initial severity did not predict better response to 1 intervention style than to another. We found very limited evidence that initial severity predicted better response to 25 vs 15 hours per week of intervention in the domains studied.

23. The Agency tendered Dr Michael Sandbank’s reports, an international expert on early intervention research for children with autism. She is an Assistant Professor at the Department of Occupational Science & Occupational Therapy, School of Medicine at the University of North Carolina. She has a PhD in Special Education, specialising in studying autism and early childhood special education, early development, language and communication and has been trained in applied behavioural analysis. Her meta-analysis work was referred to during the hearing and the Agency specifically tendered her reports dated 21 July 2022 and 15 August 2022.

24. In her first report dated 21 June 2022 Dr Sandbank states:

    It is my opinion that, when considered in total, the available clinical research is mixed in both quality and conclusions, and does not satisfactorily establish that more intensive supports are unilaterally more effective than less intensive supports. Specifically, it does not establish that 27+ hours per week of early childhood intervention is unilaterally more effective than less intensive supports, such as 5 and 15 hours per week.[25]

    [25] JTB, R12, 573.

25. Dr Sandbank further states that the only high-quality study explicitly designed to directly test the potential association between intervention intensity and effectiveness, found that children who received 25 hours per week of early intervention did not exhibit greater progress over two years than children who received 15 hours per week.

26. In her second report dated 15 August 2022 she states:

    The articles referred to in the second brief include a set of practice guidelines drawn from a systematic review of autism-relevant literature (Roberts & Prior, 2006) and a subsequent update (Prior & Roberts, 2011), one review of 5 meta-analyses of Early Intensive Behavioural Intervention (EIBI; Reichow, 2012), and one position paper about the nature of progressive ABA (Leaf and colleagues, 2016). I have carefully considered these articles and have concluded that they do not lead me to change my opinion expressed in my prior report.[26]

    [26] JTB, R13, 964.

27. In the Journal of the American Medical Association (JAMA Paediatrics) June 2024 issue Dr Sandbank et al published an article titled, Determining Associations between Intervention Amount and Outcomes for Young Autistic Children a Meta- Analysis, (Dr Sandbank June 2024). This meta-analysis included 144 studies involving 9038 children with autism. Findings were that intervention effects do not increase with high amounts of intervention. The conclusion of the meta-analysis was that health professionals recommending intervention hours should be advised that there is little robust evidence supporting the provision of intensive intervention therapy hours 20+ per week.[27]

    [27] JTB, R14, Article - Determining Associations between Intervention Amount and Outcomes for Young Autistic Children a Meta- Analysis, Dr Sandbank et al June 2024, page 965.

28. ZPCZ’s parents relied on the meta-analysis work undertaken by Frazier et al in response to Dr Sandbank’s June 2024 JAMA Paediatrics’ article. ZPCZ’s parents noted that Frazier et al published Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism in November 2024 (Frazier 2024) claiming that selective sampling influenced Dr Sandbank’s primary study conclusion because IQ was not added as a covariant.[28]

    [28] JTB, A137, Article - Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism— by Thomas W. Frazier, PhD; Lacey Chetcuti, PhD; Mirko Uljarevic, MD, PhD, page 2629 – 2630.

29. Frazier et. al also stated that intervention dosage does have an positive effect and must be factored into the design, evaluation, and implementation of treatment programs for individuals with autism. In his re-analysis of Dr Sandbank’s dataset with IQ included, Frazier states the data showed significant associations between intervention quantity and better outcomes.

30. Dr Sandbank, and Putsejovsky then replied to Frazier, et. al in JAMA Pediatrics November issue titled Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism - Reply (Dr Sandbank and Putsejovsky 2024). Dr Sandbank and Putsejovsky 2024 contend that they re-analysed their model utilising IQ, and did not find a statistically relevant difference. They claim Frazier 2024 pooled data across intervention types, leading to results that have less statistical power.[29]

    [29] JTB, A137, Article - Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism by Thomas W. Frazier, PhD; Lacey Chetcuti, PhD; Mirko Uljarevic, MD, PhD – reply by Micheal Dr Sandbank, PhD; James E. Putsejovsky, PhD, page 2630.

31. Of significant relevance to this matter also is the Autism CRC Australian National Guideline published 6 December 2022 titled National guidelines for supporting the learning, participation, and wellbeing of autistic children and their families in Australia (Autism CRC Guideline). The Guideline was approved by the CEO of the Australian National Health and Medical Research Council. The Guideline provides recommendations around support to children aged 12 years or younger with autism.

32. Relevantly recommendation 56 provides as follows:

    Recommendation 56

    Practitioners should work in partnership with the child and family to determine the delivery amount and duration that will likely lead to the most meaningful and sustained increase in the child’s learning, participation, and wellbeing.

    56.1 The amount and duration of support provision should be tailored to the individual needs of the child and family. This includes consideration of the frequency, length, and time of day of support sessions, and variations in support needs over time.

    56.2 When recommending an amount and duration of support, practitioners should do so based on a decision-making framework that considers:

    Plausibility– there is a plausible reason for the child and family to receive the support in a given amount and duration, and evidence to support this reason, as well as its safety.

    Practicality – it is practical for the child and family to receive the support in a given amount and duration when considering the child and family’s schedule, and the social and emotional wellbeing and support of the family and the financial resources available to them.

    Desirability – it is desirable to the child and family to receive the support in a given amount and duration when considering the child and family’s culture and customs, the parents’ views on childrearing and child development; and the priority of these supports within a hierarchy of their needs.

    Defensibility – there is a clear rationale for why receiving the support in a given amount and duration is preferred over alternative options.

    56.3 Practitioners should inform parents that there is no set number of hours per week of practitioner delivered child-directed supports that leads to the best outcomes for all children.

    56.4 Practitioners should be aware that research evidence does not support the concept that supports delivered in greater amounts consistently lead to better child and family outcomes.

    56.5 The amount and duration of support provision should take into consideration the child’s right to education; their right to relax, play and choose to join in a wide range of leisure activities, and their individual preferences for each.

    56.6 The amount and duration of support provision should not impinge upon the natural roles of children, parents, siblings, and other family members.

    56.7 Parents should be given options regarding the amount and duration of supports that their child/family receives.[30]

    CONSIDERATION

    [30] JTB, A118, CRC Guidelines, dated December 2022, page 1945 – 2096.

    Support 1 – 20 hours a week of EIBI therapy

    Whether 20 hours of therapy the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice ds 34(1)() of the NDIS Act

1. I accept that ZPCZ’s capacity with respect to communication, social skills, emotional regulation and behaviour are significantly impaired across all functional domains. I also note that his EIBI provider has consistently recommended from November 2023 to present day, that he engage in 20 hours a week of ABA therapy.

2. ZPCZ’s mother in her Statement of Lived Experience states that ‘we have seen substantial gains in [ZPCZ’s] development, particularly evident in [ZPCZ’s] verbal ability and a substantial decrease in his refusal behaviours… This consistency in approach and increase of therapeutic hours has been integral in seeing shifts in [ZPCZ’s] progress.[31]

   [31] JTB, A155, 2636.

3. ZPCZ’s parents explained the evidence demonstrates he is happy, relaxed, engaged in his current therapy. They explain that he will continue to request to attend therapy and regularly requests to visit with his therapists by name even on weekends. They state this is a notable contrast to his attitude towards the preschool environment where he will regularly protest against attending.

4. I take into account the lived experience of ZPCZ’s parents along with the evidence of the EIBI therapy supervisor Ms D and his Paediatrician Dr G that supporting ZPCZ through this therapy will enable him to developmentally progress and regulate his emotions.

5. I found ZPCZ’s parents to be highly informed in respect to ABA therapy and the research regarding intensity. It is clear to me that they take their responsibility seriously to ensure his development, safety and well-being. His parents state that the NDIS Act does not require me to have absolute surety or 100% guarantee that 20 hours a week of therapy will be beneficial, but rather the threshold is whether it is likely to be beneficial.

6. ZPCZ’s parents explain that the progress he has made especially since beginning 16 hours per week, combined with the clinical recommendations by his treating paediatrician and his therapists alongside their observations of his general enthusiasm and requests to attend beyond the current hours, all go toward reassurance that 20 hours a week of EIBI therapy will be, or is likely to be, beneficial for ZPCZ.

7. I disagree with the parent’s view of s34(1)(d) of the Act, the criteria that I must apply has more work to do than satisfy the decision-maker that the support is or is likely to be beneficial to ZPCZ. The criteria to be applied is that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. [Tribunal emphasis]

8. I have read and considered all of the reports from his EIBI provider. These reports provide general conclusions that more therapy is better, though there is lack of rationale as to the reasons specific to ZPCZ that he is recommended to undertake 20 hours a week.

9. In cross examination ZPCZ’s mother was asked how the 20 hours of therapy would fit into ZPCZ’s existing busy schedule. ZPCZ’s mother gave evidence that the difference between the current 16 hours when moving to 20 hours would likely see an additional 2 hour session on both a Wednesday and Thursday afternoons. I note, that ZPCZ is already engaged in occupational therapy on Wednesday afternoons.

10. ZPCZ’s mother gave evidence that she had observed her son’s behaviour and skill building improve since the EIBI therapy began. I accept that ZPCZ has responded well and made progress whilst receiving this therapy. Noting he currently attends for 16 hours a week; what is being asked of the Tribunal is whether funding an extra 4 hours a week of this therapy is reasonable and necessary. I must turn to an evaluation of current good practice evidence in order to satisfactorily answer the question of whether 20 hours per week will be or is likely to be beneficial to ZPCZ.  

11. In the written materials there was emphasis placed by ZPCZ’s parents on the Prior and Roberts 2012 Guidelines (originating from their 2006 works) and Roberts and Williams 2016 report relevantly commissioned by the NDIS. Specifically, emphasis was placed on their recommendation that early intervention for children with autism should ideally involve 15-25 hours per week of ABA therapy.

12. I am concerned with the currency of the aforementioned recommendation. The Autism Interventions Evidence Report released in November 2020 by the Autism CRC note that of the 58 systematic reviews included in their study, including the above Roberts and Williams study, 40 have been published in the last five years, meaning 68% have been published since the 2016 report was released. Autism CRC comment that there have been significant additional quality research findings in recent years.

13. Dr Sandbank in her report dated 15 August 2022, states that the number of published studies on autism interventions has dramatically increased in the last 10 years.[32] By reference to figures from her own work, as at November 2021, she explains that 291 reports of studies testing interventions for young children on the autism spectrum had been identified. Dr Sandbank reported that 75% of these were published after 2013.[33] By way of example I note Roberts & Williams 2016 study was informed by approximately 73 reports.

    [32] JTB, 13, 964.

    [33] JTB, 13, 965.

14. Dr Sandbank states that evidence summaries, systematic reviews, meta-analyses and their corresponding conclusions published in or before 2012 are no longer reflective of all or even the majority of the available evidence in this area.

15. The Agency contends that 20 hours a week sought is not in keeping with current best practice or in line with current research literature and expert opinion. The Agency cites the CRC Guidelines National Guideline for supporting the learning, participation, and wellbeing of autistic children and their families in Australia as what is current best practice. The Agency states that the current clinical research and the published and refereed literature does not support the contention that 20 hours is more effective than 10 or 15 hours.

16. Overall there is no specific evidence about ZPCZ and his current progress or his likely progress on the requested 20 hours a week that persuades me it will be value for money and effective and beneficial. Dr Sandbank’s conclusions in 2024 are that 20 hours or greater of early childhood intervention have not been satisfactorily proven to be more effective than a reduced level of intensive support in the range of 5-15 hours per week.

17. Dr Sandbank’s findings align broadly with Recommendation 56 of the CRC Guidelines which provides that practitioners should be aware that the research evidence does not support that more hours of intervention will consistently result in a better outcome for a child and their family

18. Having considered the CRC Guidelines, Dr Sandbank’s reports, together with the voluminous literature and reports in evidence and in particular those referred to at paragraphs 64-80, I accept that clinical research regarding the optimal intensity of early behavioural programs is that current clinical research does not establish that 20 hours a week of ABA therapy for children with autism represents current best practice. I find that the findings of the research literature relied upon by ZPCZ’s parents for 20 hours a week has been superseded by more recent studies.

19. The EIBI therapy program recommended at 20 hours per week for ZPCZ, is not evidence-based having regard to current research literature. I am therefore also not satisfied that the EIBI program will be, or is likely to be, effective and beneficial for ZPCZ and represents current good practice at 20 hours per week.

20. I note the Agency has made the concession of 18 hours a week. I am also not persuaded that the evidence supports 18 hours per week as being effective and beneficial having regard to current good practice. The evidence has not satisfied me to depart from the quantum of his current 16 hours a week.

21. Section 34(1)(c) and (d) of the NDIS are not satisfied in relation to the request for 20 hours a week.

    Conclusion

22. As paragraphs 34(1)(c) and (d) of the Act are not established, I am not required to consider whether paragraphs 34(1)(e) to (f) of the Act are made out. While I acknowledge the concession made by the Agency of 18 hours a week, I have not been satisfied on the evidence before me that this weekly increase ties to the evidence nor reflects current good practice. Accordingly, the EIBI therapy quantum will remain unchanged at 16 hours a week.

    The ABA supervision, report writing and team meetings

23. ZPCZ seeks funding for session progress notes and data summaries of 15 minutes for 10 sessions per week, along with program supervision by a Board-Certified Behaviour Analyst (BCBA) of 4 hours per week; along with 2 hours for bi-monthly team planning sessions to review progress consisting of 12 hours for the BCBA supervisor plus an additional 12 hours each for the two Level 2 therapists; and NDIS plan review report writing of 5 hours per year.

24. The Agency’s conceded position is that reasonable and necessary funding is as follows:

    (a)1.80 hours per week for progress report writing;

    (b)2 hours per week for program supervision by a Board-Certified Behaviour Analyst

    (c)12 hours per year for team meetings; and

    (d)4 hours per year for plan review assessment and reports.

    ABA Supervision

25. ZPCZ parents’ position is that 4 hours a week for supervision represents value for money, as the bulk of ZPCZ’s EIBI therapy is being delivered by therapy assistants, at an hourly rate far less than that of a Board Certified Behaviour Analyst (BCBA). ZPCZ parents explain that due to the use of therapy assistants, there is a need to ensure adequate support and supervision is provided. They note the level of therapeutic supervision requested is per ABA Guidelines. In support of 20% supervision, Ms M in her 7 November 2024 report states that due to ZPCZ’s individual disability profile, he requires the 20% supervision.[34]The Behavioural Analyst Certification Board recommends 20% supervision for patients with barriers to skill acquisition who may need more frequent case supervision to problem solve and adapt programming, or patients with severe behavioural and may require more intense case supervision or safety to achieve successful outcomes.[35] I

    [34] JTB, A119, 2097.

    [35] JTB, A118, 2098.

26. I note and accept that ZPCZ parents’ have exercised their choice and control to use ZPCZ’s capacity building funding for EIBI therapy based on the ABA model. I am not persuaded by the parent’s contention that due to the Agency providing hours for general capacity building early childhood intervention funding to ZPCZ, that it then has any positive obligation to additionally fund ABA supervision hours in line with ABA guidelines.

27. The Agency’s position is that 2 hours per week for supervision by a Behaviour Support Consultant is a reasonable and necessary support. I am satisfied that this is an appropriate concession to make. I find that the extra funding of hours requested for ABA supervision of 4 hours per week is not reasonable and necessary on the basis that I do not find it is value for money pursuant to s 34(1)(c) of the NDIS Act. As s34(1) is cumulative I am not required to consider whether paragraphs 34(1)(aa)(a)(b)(d)(e) to (f) of the Act are made out.

28. I am satisfied that 2 hours per week for supervision by a Behaviour Support Consultant is a reasonable and necessary support under s 34(1)(aa)-(f) of the NDIS Act.

    Team planning sessions bi-monthly

29. ZPCZ’s parents are requesting 2 hours of funding for bi-monthly team planning sessions to review ZPCZ’s progress. This would consist of having support for 12 hours per year for a BCBA supervisor plus 24 hours funding to allow two therapy assistants to attend each planning session.

30. The Agency’s position is that 12 hours per year for team meetings is reasonable and necessary. I agree this is an appropriate concession to make. As s34(1) is cumulative I am not required to consider whether paragraphs 34(1)(aa)(a)(b)(d)(e) to (f) of the Act are made out.

    Note taking

31. The Tribunal had the benefit of viewing the EIBI provider’s session notes from 2023 and 2024 included in the JTB. The notes are completed via template documents with headings such as:

    Wellbeing overview

    Did the client need to go to the toilet today?

    Did the client eat during the session?

    Did the client drink any fluids in the session?

    Session Summary

    How easily did the client enter the session/clinic today?

    Did Behaviours of Concerns or Any Incidents occur in the Session?

    If yes, please note any details:

    General Notes: (Brief overview of the session)

    Today we worked on: (List programs/goals that were worked on in session)

    Something that went well today:

    Things that were tricky today:

    Please upload any photos/videos from today's session that may be relevant:

32. Generally the notes before the Tribunal have yes/no answers with a sentence or two under each heading. ZPCZ’s mother in her Lived Experience statement contends that:

    Note taking and data collection needs to be captured at the end of the session. ABA therapy requires a great deal of data collection and collation. The goals set are highly measurable by the analysis of data which is graphed over time. As demonstrated in the previously submitted documents, notes capture goal progress, the activities that took place and at what intensity, how successful the activity was completed, if there were any issue or concerns, etc. This is an important means of communicating both with parents and [ZPCZ’s] other therapists, who can then implement appropriate learning or address concerns. It is also required to demonstrate progress and ensure therapy is effective and of value. The notes also reflect a multidisciplinary approach to other aspects such as food consumption during the session.[36]

    [36] JTB, A94, 1739.

33. The Agency’s has conceded that 2 hours a week for progress notes would be a reasonable and necessary support. On considering the notes before me, the therapist currently spends 2 hour blocks with ZPCZ. I am not persuaded that funding for an extra 15 minutes of top of this therapy, is representative of value for money utilising public funds and considering the sustainability of the scheme. It remains curious that this note taking line item in the quote provided by the EIBI provider dated 12 April 2024 states:

    15 minutes per session summary notes (NDIA requirements)            $10,320

34. On the evidence the EIBI therapy is not a registered NDIS provider, and there is no evidence to substantiate the claim that the NDIA requires families to pay for an extra 15 minutes per session for summary notes for early intervention supports. I note over a 12 month period this extra $10,320 is a significant cost for the scheme to bear. I find that an extra 15 minutes per session for summary notes for 10 sessions per week does not meet value for money nor effective and beneficial in relation to s34(1)(c) and (d) of the NDIS Act.

35. As I have determined that paragraph 34(1)(c) and (d) of the Act are not established, I am not required to consider whether paragraphs 34(1)(e) to (f) of the Act are made out. The request for session progress notes of 15 minutes for 10 sessions per week for 48 weeks, is not a reasonable and necessary supports under s34(1) of the Act.

    Report writing

36. In the current plan there is funding for 4 hours for NDIS plan review assessments. The Agency’s position is that these 4 hours per year for plan review assessment and reports are reasonable and necessary. The Applicant seeks 5 hours per year for plan review assessments.

37. ZPCZ has met access on impairments of severe speech, language and communication impairments, severe impairments in play and social skills, significant difficulties with emotional regulation and slowed progress in achieving age appropriate activities of daily living such as toilet training, dressing and eating. I am not satisfied on the evidence before me that 5 hours of report writing per year for NDIS plan review arises from ZPCZ’s impairment nor meets the value for money criteria.

38. On the evidence I am not persuaded to alter the current funding position in relation to report writing. The request for 5 hours per year funding for NDIS review reports has not been evidenced to be relating to the impairments he met access for nor reflect value for money under s34(1)(aa) and (c) of the Act.

    Capacity building supports

39. ZPCZ’s is seeking an additional 47 hours per year of capacity building supports for therapist travel. The current plan includes 249 hours of flexible capacity building therapy per year or approximately 5.1 hours per week over a 48-week period.

40. With regard to the therapist travel support, ZPCZ’s parents state that ‘the current funding of 5.1 hours per week doesn’t include any flexibility for a therapist to attend [ZPCZ’s] preschool setting. This also doesn’t take into account that therapists charge travel costs at the NDIA approved rate to travel to preschool and home’.[37]

    [37]  JTB, 1, 87.

41. The Agency considers that the current funding is adequate to cover the speech therapy, occupational therapy plus the travel required given ZPCZ lives in a metropolitan area.

42. ZPCZ’s mother gave evidence that ZPCZ’s therapists are currently attending his preschool to undertake therapy. She further accepted that the regular travel for therapy leaves on average about two hours a week for travel time. This was put the ZPCZ’s mother during the hearing, however could not explain why more travel time was needed.

43. She also accepted that the distance between the occupational therapist and preschool is approximately 5 minutes, and that the time between the occupational therapist and ZPCZ’s home was approximately 10 minutes each way. ZPCZ’s mother gave evidence that less travel time has been needed for the occupational therapist as the other one was on maternity leave.

44. The report of Ms G dated November 2023 recommends a minimum therapy session of once per week.[38] The report of Ms Collis recommends two 1 hour therapy sessions per week plus additional travel time.[39] The recommendation of Ms Pasato speech therapist, is that ZPCZ should continue to go to ongoing weekly speech pathology at home and in preschool.[40]

    [38]  JTB, T Docs, 126.

    [39]  JTB, A35, 1068.

    [40] JTB, A124, 2112.

45. Overall the evidence does not provide recommendations supporting ZPCZ attending a speech language specialist or consultant once a fortnight, or that he should be attending speech pathology or therapy more than twice a week.

46. The Agency’s position, which I accept, is that the current funded amount, which is 249 hours a year facilitates the three hours of therapy a week and allows for travel. The therapy plus travel is accommodated in ZPCZ’s current funding. There is insufficient evidence to show that an additional 47 hours a year would be effective or beneficial or value for money because what is required can already be met within current funding capacity, therefore I find 34(1)(c) and (d) of the NDIS Act are not satisfied.

47. As I have determined that 34(1)(c) and (d) of the NDIS Act are not established, I am not required to consider whether paragraphs 34(1)(e) to (f) of the Act are made out. The request for an additional 47 hours of capacity building supports are not a reasonable and necessary supports under s34(1) of the NDIS Act.

    Dietician

48. The current plan includes 12 hours per year for a paediatric dietician. ZPCZ’s parents state that 12 hours a year does not provide adequate funding to allow for plan renewal assessment and reporting; collaboration with other therapy supports and allowance for feed or feeding equipment therapy needs.[41]

    [41] JTB, A52, 1185.

49. ZPCZ’s mother gave evidence that ZPCZ does not attend the dietitian appointments as they clash with his speech therapy appointments. The dietitian appointments are undertaken by ZPCZ’s father.[42]

    [42] Transcript 2:58:54.

50. 20 hours a year is the support sought by ZPCZ’s parents and they rely on the Paediatric Dietician support letter from Ms P dated 25 June 2024 detailing the need for both the requested 20 hours paediatric dietician support and the requested supplements.[43]

    [43] JTB, A116, 1938 – 1939.

1. ZPCZ’s father has limitations on his capacity to actively provide support to ZPCZ during the weekdays and Saturdays, arising due to his current employment schedule. There are no other informal supports available to the family. On the topic of ZPCZ’s father juggling his parental responsibilities and work schedules the Agency and ZPCZ’s mother entered into the following exchange:

   The Respondent: Would you agree that part of parenting is juggling parenting and work schedules?

   ZPCZ’s mother: Yes…but that's the demands of his job and we need money to live. So it's either you do the demands of the job or we lose the house in the car and we've got nowhere to live.[59]

   [59] Transcript 23:08.

2. Section 3(3)(c)(ii) of the NDIS Act provides that in giving effect to the objects of the NDIS Act, regard is to be had to the broader context of disability reform provided for in the Carer Recognition Act 2010 (Cth). Section 3 of this Act provides that its object is to increase recognition and awareness of carers and to acknowledge the valuable contribution they make to society. Section 10 provides that this Act does not create rights or duties that are legally enforceable in judicial or other proceedings.

3. The guiding principles in s 4 of the NDIS Act include:

   (a) that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime[60]; and

   (b) the role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected.[61]

   [60] s 4(3) of the NDIS Act.

   [61] s 4(12) of the NDIS Act.

4. The legislation also requires me to consider whether the provision of a support takes into account what is reasonable for families to provide. Already outlined above are the expectations regarding the care of a child, where it is considered typical for parents to provide substantial care and support. I must consider whether the provision of funding to have support worker assistance for supervision and support of ZPCZ in the backyard and the community, is a reasonable and necessary support for ZPCZ.

5. As a starting point the overall evidence demonstrates that such support would serve to recognise and respect of the role of his mother as his primary carer during his weekday routines and Saturdays.

6. The evidence that his parents rely on is Ms E’s occupational therapist report[62], ZPCZ’s mothers Doctor's Certificate[63], their Statement of Lived Experience and oral evidence at hearing.

   [62]  JTB, A147, 2559.

   [63]  JTB, A154, 2632.

7. In her Statement of Lived Experience dated 12 May 2024 ZPCZ’s mother explains:

   Trying to get the children out and about is challenging. Even though we are seeing improvements in [ZPCZ’s] awareness through the limited amount of ABA hours we have been able to access, his self-regulation constantly poses safety issues, both inside and outside of the home. [ZPCZ’s] needs to be kept in a regular, constant routine to help negate meltdowns and make it possible for me to get…loaded and unloaded from the car to travel out anywhere in the community on my own. [ZPCZ] is still really struggling to respond to his name and the command “STOP” and we are in constant fear of him running out onto the road. Our front door at home is constantly dead bolted for this reason.[64]

   [64] JTB, A102, 1874.

8. The relevant rules are 3.4 of the Supports Rules.

   Reasonable family, carer and other support

   3.4In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

   (c)   for all participants—the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

9. The Agency notes this support worker request was provided after their filing of the Respondent’s Statement of Facts, Issues and Contentions, as such they were not afforded the opportunity to provide evidence regarding their position relevant to this support. I agree that this request has come in very late from ZPCZ’s parents, noting this dispute has been ongoing since 2023. Procedurally, the Agency did not object to the Tribunal’s consideration of the support.

10. The relevant NDIS Guideline states:

    We consider what support is reasonable to expect parents to provide at your age. It’s normal for parents to provide substantial care and support for children.  We consider that it’s usual for parents to provide almost all the care and support that young children need.

    For example, it’s reasonable to expect parents or other family members to provide transport to and from their child’s after-school activities. Of course, the amount of care and support for a child without a disability would typically reduce as they get older.

    For children under 18, we consider:

    ·if your needs are substantially greater because of your disability, compared to other children the same age.  This means you need much more disability support

    ·any risks to the wellbeing of people providing informal support to you 

    ·if including funding for the support will help build your skills and capacity in the future or reduce any risks to you. 

    For example, we consider any health, safety or other impacts resulting from what’s involved in meeting your disability support needs.[65]

    [65] Is the support something we would expect your informal supports to provide? | NDIS

11. ZPCZ’s mother explained that ZPCZ has no personal safety awareness, is impulsive and does not respond to his name or voice commands. She explained that he is constantly mouthing objects to self-regulate and will often put small objects in his mouth and has choked at home.

12. ZPCZ mother clarified that support worker assistance will allow ZPCZ to access and participate in the community safely with his mother and sister during the week. She described that this would assist in the development of his life skills. His mother explained that she cannot take both children outside and keep them safe, while many other families with kids the same age can safely access and participate in the community. She further explained ZPCZ’s father works and is absent from the family home for over 12 hours per day, 6 days per week.

13. ZPCZ’s parents contend the requested support is not akin to babysitting, rather for the direct benefit of ZPCZ to participate in the community, allowing him to explore typical life experiences and life skills that are age-appropriate. ZPCZ’s parents acknowledge there is likely to be some secondary benefits to his younger sibling and his mother by having a support worker present.

14. Ms E in her report quantified that the 15 hours would be utilised as weekday afternoon support. ZPCZ’s mother explained that support worker hours would likely be used both in the weekday afternoons and then on Saturdays when her husband is at work. She explained this support would be provided while she was always present with ZPCZ and his younger sibling, both at home and in the community.

15. The evidence provided by ZPCZ’s mother is that she cannot undertake community activities such as grocery shopping, going to the park or having both her young children playing in the backyard when she is supervising them alone. The risk to ZPCZ in the family backyard is due to a ‘steep drop off’ with numerous pictures supplied to the Tribunal showing the layout.

16. ZPCZ’s mother accepted in cross examination that ZPCZ can go outside or into the community when supervised by one parent, and not accompanied by his sibling. The Agency and ZPCZ’s mother entered into the following exchange:

    Respondent:  [ZPCZ] can go outside supervised by one parent?

    ZPCZ mother:  Yes. If it's me, yeah, it's not easy, but yeah.

    Respondent:  Is the backyard fenced?

    ZPCZ mother:  Yeah, the backyard is fenced, but it's not fenced along the unsafe point. So there's it's fenced at the side and then fenced at the back. There's pictures with a massive set of stairs and then there's another massive set of stairs with a cliff drop off behind.

    Respondent:  Have you considered getting fencing for the backyard?

    ZPCZ mother:  It would be extremely difficult and costly to fence. It still wouldn't negate the issue of the massive set of stairs to go down to one level of the yard.[66]

    [66] Transcript 18:48 – 20:18.

17. The Agency’s position is that because ZPCZ can be effectively supervised outside by one parent, any additional need for caring or supervision in the backyard or community arises not from ZPCZ's impairments, but from their backyard design and parental responsibility to care for two children at once. Further the Agency takes the position that the 15 hours a week doesn’t relate to ZPCZ’s impairments, rather from the stress and needs of his mother as per her medical certificate.

18. The occupational therapy report of Ms E recommends that 15 hours of support worker assistance be funded at weekday rates.[67] Ms E has undertaken the caregiver strain index to assesses ZPCZ’s mother’s strain as severe, and Ms E notes that there are no other informal supports to assist his mother during the time that his father attends work.[68]

    [67] JTB, A147, 2559.

    [68]  JTB, A147, 2561.

19. I note that ZPCZ's father works full time during the week including Saturday, typically leaving the house at 4:00 AM and returning at 6:00 PM. The Emmett report provides brief information on ZPCZ’s functional impairments, communication skills and safety awareness. The report generally details that ZPCZ has the need for support worker assistance at the 1:1 ratio for both community participation and playing in his backyard due to its steep cliff drop off.

20. The report states:

    Currently, [ZPCZ’s] ability to access the community is limited. It is highly challenging for [ZPCZ’s mother] to manage [ZPCZ’s] support needs in the community while also supervising and caring for [ZPCZ’s] younger sister. This limits the frequency and variety of community places which can be accessed.[69]

    [69] JTB, A147, 2564.

21. Ms E states that 15 hours was calculated by reference to providing ZPCZ:

    Access to support workers for an average of 3 hours per weekday will enable increased community access and outdoor play. This will support access to typical childhood experiences such as going to the park, the shops, playgroups and play with peers. It will also allow time for transitions which take longer for [ZPCZ] due to his challenges with emotional regulation.

22. ZPCZ’s mother is the person who undertakes all daily tasks and care for ZPCZ, she transports ZPCZ and takes him to his therapies and activities. I accept she only has physical assistance in the evenings and on Sundays and is experiencing severe carer strain. I accept ZPCZ disability does result in an increased need for supervision and assistance. I am not persuaded by the Agency’s position that need for support worker assistance arises from ZPCZ’s mothers’ needs versus his impairments. His mother explained how she envisioned the support could be used:

    The Respondent   Are you suggesting that the support, that [ZPCZ] would come home from preschool and then the support worker would do activities with him that afternoon?

    ZPCZ’s mother:  The support worker would do activities with him that afternoon. Yeah. There's no reason that he couldn't be doing recreational activities after preschool. That's, you know, that's what kids do.

    The Respondent:  But he's he is currently able to do that with you, isn't he?

    ZPCZ’s mother:  I play with him all the time, but we're restricted to the house.

    ZPCZ’s mother:  So if it's puzzles or monster trucks or you know, getting out a bit of paint and mixing it up and all those sort of things, I do those things with him in the house, but we can't go outside and do anything.

    The Respondent: But the inability to go outside. I would draw that the inability to go outside is because you feel like you need two people with [ZPCZ] outside. Is that correct?

    ZPCZ’s mother:  No, the inability to go outside is because I cannot look after [ZPCZ] and my daughter at the same time outside because []ZPCZ absconds and my daughter copies his behaviours and I can't run after [ZPCZ] and leave [redacted] in an unsafe position. So I cannot have them both outside with me.

    The Respondent: So it's really because you have two children, is that right?

    ZPCZ’s mother: It's not really because I have two children, it's because one of my children have a severe disability. If I had two children that didn't have all of these other executive functioning problems, they would be listening to instruction with no problem and there there's no issue.[70]

    [70] Transcript 16:05-18:06.

23. With regard to ZPCZ’s backyard I find the photographs showing the steep drop-off satisfy me that this would be a safety risk for any child of similar age to ZPCZ. I consider the need for support worker assistance due to the general safety of the backyard does not meet s34(1)(e) as this is what is reasonable to expect families, carers, informal networks and the community to provide. Given that Ms E bases her 15 hour recommendation on support worker assistance in the backyard and in community, I determine that a quantum of half these hours would therefore be reasonable.

24. I do note ZPCZ engages in absconding behaviours and therefore I see this is a separate consideration that does satisfy me that the support he requires in community is beyond typical parental responsibility due to his sensory sensitivities, absconding behaviours and lack of personal safety awareness. I am not however satisfied that the level of benefit of 15 hours a week is to a degree or extent that would displace the requirement for the serious consideration of the need to ensure the financial sustainability of the scheme.

25. I have not been persuaded on the evidence before me that 15 hours a week of support worker assistance used in the way Ms E and ZPCZ’s mother have generally described, fits into the weekly schedule that ZPCZ currently undertakes, noting he is currently undertaking therapy for 19 hours per week exclusive of his childcare hours. I am not satisfied that the funding for 15 hours of support worker assistance satisfies s 34(1)(c) of the NDIS Act. This support is likely to be approximately $35,000 a year and the evidence before me does not consider any comparable support that may highlight its cost effectiveness. I have not been persuaded that the amount of 15 hours a week will be effective and beneficial under s34(1)(d) of the NDIS Act.

26. Overall the evidence regarding 15 hours of support worker assistance does not satisfy s34(1)(c) of the Act in that it represents value for money. As s34(1) is cumulative I am not required to consider whether paragraphs 34(1)(aa)(a)(b)(d)(e)(f) of the Act are made out.

27. I find that a smaller quantum of half the hours of support worker assistance requested would meet the requirements of section 34(1) as a reasonable and necessary support. 7 hours represents half of the recommended 3 hours per weekday afternoon provided by Ms E. I find 7 hours per week is necessary to address ZPCZ’s needs arising from an impairment in relation to which he meets the NDIS access criteria – section 34(1)(aa); will assist ZPCZ to pursue the goals in his plan about further developing his emotional regulation skills and his self-care skills – section 34(1)(a); will assist his social participation, principally through building his skills and supporting community participation activities – section 34(1)(b); represents value for money in that the associated costs are reasonable, relative to the benefits to be achieved, and there are not comparable supports that could achieve the same outcome at a substantially lower cost – section 34(1)(c) and Rule 3.1 of the Support Rules; will likely be effective and beneficial to support him to develop his skills and capacity – section 34(1)(d); takes into account what it is reasonable to expect parents to provide by way of care and support – section 34(1)(e) and Rule 3.4 of the Support Rules; and is an NDIS support for ZPCZ – section 34(1)(f) and Item 14 of Schedule 1 of the Transitional Rules – and appropriately funded under the NDIS – section 7 of the Miscellaneous Transitional Rules.

28. For the above reasons support worker assistance at a frequency of 7 hours per week should be included in ZPCZ’s SOPS.

    Plan duration

29. ZPCZ’s parents explained that an 18 month plan duration is sought to ensure ZPCZ has uninterrupted access to therapy until his next important milestone, being beginning his formal schooling. Their secondary concern is to avoid any further impacts of stress due to the effect of dealing with the NDIS at plan review, noting they expect to be facing another unnecessary prolonged battle for the necessary therapy for a 12 month plan.[71]

    [71] Transcript, 1:50:14.

30. Their position is that a 12 month plan places them in a position where they are likely to face another battle to secure adequate therapy support just months before ZPCZ starts primary school. ZPCZ’s parents assert that a 12 plan month plan doesn’t provide them security of knowing ZPCZ’s funding all the way to the end of next year, prior to formal school starting.

31. ZPCZ’s parents explained the external review process has had an immensely negative impact on their family. Further to this they touched on the influence this stress has had upon the very real possibility of relapse regarding ZPCZ’s mothers’ mental health.

32. The Agency’s Operational Guidelines sets out that NDIS plans are approved for 12 month periods. The Agency’s guidance refers to plans being 12-month periods for now and that “later there may be more variability in the length of funding periods, however funding periods can be no longer than 12 months”. The guidance notes that “In the future for participants with stable support needs the implementation of funding periods allows for the creation of longer-term plans, for instance 2, 3 or 5 years”.[72]

    [72] >

    Section 31 of the NDIS Act sets out the principles applying to the development of a NDIS plan for a participant.

    31 Principles relating to plans

    The preparation, variation, reassessment and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:

    (a) be individualised; and

    (b) be directed by the participant; and

    (c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

    (ca) where relevant, recognise and respect the relationship between participants and their families and carers; and

    (d) strengthen and build capacity of families and carers to support participants who are children; and

    (da) if the participant and the participant’s carer agree – strengthen and build the capacity of families and carers to support the participant in adult life; and

    (e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and

    (f) support communities to respond to the individual goals and needs of participants; and

    (g) be underpinned by the right of the participant to exercise control over his or her own life; and

    (h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

    (i) maximise the choice and independence of the participant; and

    (j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and

    (k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

33. It is clear and I acknowledge on the materials before me, that this external review has been a protracted and highly emotionally charged matter. That said, on the totality of evidence I am not persuaded to depart from the Agency’s policy.

1. I am satisfied that given his young age, 12 months provides the opportunity for ZPCZ’s progress to be reviewed and a plan put in place to aid in his transition to school. As such I am not satisfied to make a positive finding that an 18 month plan duration meets the requirements of s 34(1) as reasonable and necessary.

   DECISION

2. The Tribunal sets aside the decision under review and this matter is remitted to the Agency for reconsideration with a direction that ZPCZ’s Statement of Participant supports are to include the following additional supports:

   (a)7 hours weekday rate for support worker assistance for 48 weeks;

   (b)2 hours per week for supervision by a Board Certified Behaviour Analyst for 48 weeks;

   (c)12 hours per year for team meetings;

   (d)4 hours per year for NDIS plan review reports and assessments;

   (e)16 hours per year for paediatric dietician;

   (f)The date by which the Respondent must reassess the plan is to be 12 months after the date on which the supports above are included in the statement of participant supports.

207.    I certify that the preceding 206 (two hundred and six) paragraphs are a true copy of the reasons for the decision herein of General Member D Heron.

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

Associate

15 August 2025

Date of hearing:  8 April, 3 July 2025

Advocate for the Applicant:  Self-represented by parents

Counsel for the Respondent:                    Ms H Robinson, of Counsel

Solicitors for the Respondent:                   Ms A Lay of Moray & Agnew