ZWXT and National Disability Insurance Agency

[2024] AATA 543

ZWXT and National Disability Insurance Agency [2024] AATA 543 (25 March 2024)

Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION

File Number:          2022/1833

Re:ZWXT

APPLICANT

AndNational Disability Insurance Agency

RESPONDENT

DECISION

Tribunal:Senior Member K. Parker

Date:25 March 2024

Place:Melbourne

For the reasons set out below, the Tribunal sets aside the decision under review and remits this matter to the Respondent with a direction that on or before 8 April 2024, a new statement of participant supports is to be approved for ZWXT containing the following:

(a)       funding for the following supports:

(i)replication, on a pro rata basis, of ZWXT’s existing funded supports listed in paragraph [17] of these Reasons for Decision;

(ii)funding for additional supports which the NDIA has indicated it is satisfied are “reasonable and necessary supports” for ZWXT:

•    54 hours per annum of speech pathology;

•    31.5 hours per annum of OT;

•    18 hours per annum of psychology services;

•    $1,499 for assistive technology for the purchase of an iPad; and

•    $572 per annum representing the gap between the price of individual and group swimming lessons for ZWXT;

(iii)      funding for 126.5 hours per annum of ABA therapy;

(iv)in order to adequately provide for a total of two-hour quarterly multidisciplinary meetings per year, between all of ZWXT’s treating clinicians, as discussed in paragraph [151] of these Reasons for Decisions:

·   4 hours for OT, 4 hours for speech pathology, and 4 hours for psychology services (that is, in addition to the 4 hours for “stakeholder engagement” for each of those different therapists, already provided for as a component of supports referred to in (a)(ii) above); and

·   8 hours for the ABA therapist; and

(iv)      funding for one hour per month of cleaning services; and

(b)a provision specifying that the reassessment date is 12 months after the date of approval of the new statement of participant supports for ZWXT, pursuant to this remittal.

......................[sgd]..................................................

Senior Member K. Parker

CatchwordsNATIONAL DISABILITY INSURANCE SCHEME – review of supports – child participant – disability arising from impairments caused by genetic condition of Down Syndrome – review of statement of participant supports in Applicant’s NDIS plan – whether request for funding for applied behavioural analysis (ABA) and other supports should be funded under the NDIS – whether supports are “reasonable and necessary supports” under s 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) – whether ABA therapy is likely to be effective and beneficial given age of the Applicant and his genetic condition – whether ABA is a duplication of other therapeutic interventions – decision set aside and remitted with a direction that a new statement of participant supports is to be approved for the Applicant containing additional supports

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Carer Recognition Act 2010 (Cth)
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Cases
CXZS and National Disability Insurance Agency [2021] AATA 551
McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520

Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852

Secondary Materials

Operational Guidelines issued by National Disability Insurance Agency entitled “Principles we follow to create your plan” (updated on 25 September 2023) - What principles do we follow to create your plan? | NDIS

Operational Guidelines issued by National Disability Insurance Agency entitled “Reasonable and necessary supports” (updated on 6 October 2023) - Reasonable and necessary supports | NDIS

REASONS FOR DECISION

Senior Member K. Parker

25 March 2024

INTRODUCTION

1. The Applicant, ZWXT, is a child participant in the National Disability Insurance Scheme (‘NDIS’). The NDIS was established and is governed by the National Disability Insurance Scheme Act 2013 (Cth) (‘NDIS Act’). ZWXT was granted access as a participant in the NDIS in 2013. ZWXT is a 14-year-old adolescent and has impairments arising from the genetic condition of Down Syndrome.

2. An issue has arisen as to whether ZWXT should be funded under the NDIS for the provision of applied behaviour analysis (‘ABA’) therapy in light of funding already approved under ZWXT’s NDIS plan to provide for him to receive other allied health services including occupational therapy (‘OT’), speech therapy, and psychology. The National Disability Insurance Agency (‘NDIA’) is concerned, among other things,[1] about duplication of supports and considers that the provision of ABA therapy to ZWXT would not be beneficial because he is able to receive those other allied health therapy interventions. The father, ‘F’ (being the sole carer and child representative of ZWXT) disagrees and maintains his request that ZWXT be provided with funding for ABA therapy. F also seeks on behalf of ZWXT, funding for services for domestic cleaning and garden maintenance in ZWXT’s, and F’s, home. These three supports will be referred to collectively in these Reasons for Decision as the ‘Requested Supports’.

   [1] Refer [48] of these Reasons for Decision.

3. The Tribunal’s jurisdiction to undertake this review arises under s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) operating in conjunction with s 103 of the NDIS Act. ZWXT was represented in this proceeding by his father, ‘F’, as ZWXT’s child representative. The NDIA was represented by NDIA lawyer, Mr Daley, and the relevant NDIA case manager, Mr Tran.

4. For the reasons set out below, the Tribunal concludes that funding for 126.5 hours per annum of ABA therapy for ZWXT is a “reasonable and necessary support” under the NDIS Act. The Tribunal does not agree that the request for garden maintenance services is a “reasonable and necessary support” for ZWXT, but it is satisfied that one hour per week for domestic cleaning is a “reasonable and necessary support” as it relates, specifically, to:

   (a)the additional cleaning, which is required as a result of ZWXT’s disability, on account of ZWXT’s current habit of hiding food around the house if he does not like it, and because is he is not able to clean up after himself to the same extent as a 14-year-old person without Down Syndrome is likely to be able to do so; and

   (b)as a result of the occasional toileting accidents that ZWXT experiences (as explained in more detail below), noting that these are reducing in frequency.

5. The Tribunal sets aside the Decision Under Review (as referred to below) and remits this matter for reconsideration by the NDIA with a direction that it approves a new statement of participant supports ('SOPS’) for ZWXT containing the supports set out in paragraph [180] of these Reasons for Decision.

   BACKGROUND

6. ZWXT lives with F, and his brother, ‘B’. ZWXT has three other siblings who live elsewhere. From F’s accounts, ZWXT has a good life. He is well cared for by F. It is apparent to the Tribunal that F is a dedicated and excellent father. ZWXT plays basketball on Saturdays and attends basketball training once a week. He wants to attend swimming lessons as he has done so previously. He enjoys playing with his siblings and his dog. He likes visiting the shops.

7. ZWXT attends a special development school (‘School’) on a full-time basis. During the school holidays, ZWXT attends a holiday program. F says that ZWXT enjoys this program. F prefers to provide care for ZWXT on a daily basis and has used the approved core funding flexibly to pay for ZWXT to attend the holiday program.

8. On 5 November 2020, a delegate of the Chief Executive Officer of the NDIA (‘CEO’) made a decision to approve a 12-month SOPS for ZWXT (‘First SOPS’). The First SOPS formed part of ZWXT’s NDIS plan of the same date. This plan stated that ZWXT’s goals and objectives were to improve his:

   (a)communication skills;

   (b)muscle tone and gross motor skills;

   (c)independence and overall quality of life;

   (d)social skills and to be supported to go out into the community; and

   (e)to increase his social and community participation.

9. Funding for supports in the First SOPS included the following:

   (a)$19,842.72 per annum for core supports to assist with daily living and community participation;

   (b)$16,220.83 per annum for capacity building supports which included:

   (i)$12,231.58 per annum for services with allied health professionals or therapists to assist ZWXT to meet his goals; and

   (ii)$2,503.50 for 25 hours per annum of support coordination.

10. On 26 October 2021, a delegate of the CEO made a decision to approve a further SOPS for ZWXT (‘Second SOPS’). The amount of approved funding in the Second SOPS for core supports was reduced to $15,588.32 per annum. Funding for capacity building supports increased to $18,160.73 per annum, primarily due to the addition of funding for “dietician consultation and diet plan development” which was not included in the First SOPS. The different types of allied health interventions for ZWXT were particularised in the Second SOPS as including:

    (a)$5,043.74 per annum for speech therapy;

    (b)$5,043.74 per annum for OT; and

    (c)$2,144.10 per annum for a psychologist (specifying that this funding was not to be used for school entry or educational assessments).

11. F was not satisfied with the Second SOPS and requested an internal review under s 100 of the NDIS Act.

12. On 2 February 2022, a NDIA “reviewer” made a decision under s 100 confirming that the decision to approve the Second SOPS was correct (‘Decision Under Review’).

13. On 7 March 2022, F lodged an application for review of decision in the NDIS Division of the Administrative Appeals Tribunal.

14. On 17 July 2023 a delegate of the CEO approved a new SOPS for ZWXT with a notional duration of six months (that is, it was due for reassessment on 15 January 2024) (‘Third SOPS’). The Third SOPS approved funding for the following supports:

    (a)$8,917.13 (over a 6-month period) for core supports to be used flexibly to assist ZWXT with daily activities, his current disability-related needs, and to work toward achieving his goals including to explore and participate in community-based activities or interests, or to develop, build and maintain friendships;

    (b)$9,196.54 (over a 6-month period) for capacity building supports which included funding for an allied health professional or therapist, comprising $5,043.74 for “Assessment Recommendation Therapy or Training – Other Professional”, and $1,072.05 for “Assessment Recommendation Therapy or Training – Psychologist (x10)”. In this category of funding, the Third SOPS specifies that “The funding offered in this plan may not necessarily be replicated in the next plan period”. Funding for a dietician consultation and plan development of $969.95 was included, as well as 12.5 hours of support coordination services (equivalent to 25 hours per annum being equivalent to the number of hours of support coordination funded in the Second SOPS).

15. In this proceeding, F requests that the Requested Supports described in paragraph [2] be added to ZWXT’s NDIS plan.

16. On 17 August 2023, the NDIA informed the Tribunal and F that it was satisfied that the following listed supports were “reasonable and necessary supports” for ZWXT under s 34(1) of the NDIS Act (‘Supports Not in Dispute’):

    (a)$10,475.46 for 54 hours per annum of speech pathology (to cover fortnightly speech pathology sessions and report writing). This funding could be used flexibly for other supports;

    (b)$6,110.69 for 31.5 hours per annum of OT;

    (c)$3,859.38 for 18 hours per annum of psychology;

    (d)$1,499 for assistive technology for the purchase of an iPad; and

    (e)$572 per annum representing the gap between the price of individual and group swimming lessons for ZWXT.

17. The existing approved funding for other types of supports in ZWXT’s Third SOPS in his NDIS plan are not in dispute between the parties. They include:

    (a)core supports – as specified in paragraph [14(a)] above – the Tribunal notes that until now, F has used this funding flexibly by spending it on the cost of ZWXT attending a Special Development School holiday program;

    (b)$969.95 per annum for dietician consultation services and development plan; and

    (c)25 hours of additional support coordination hours.

18. There was no suggestion made by the NDIA that the supports in the above paragraph should be removed from ZWXT’s SOPS. The Tribunal is satisfied that they should be replicated, on a pro rata basis, in the next iteration of ZWXT’s SOPS.

19. F also requested that the relevant delegate of the CEO of the NDIA attend a face-to-face meeting with him at the time ZWXT’s next plan review takes place. This request arose out of F’s concerns about the NDIA’s previous approach to him during ZWXT’s past plan review processes. The Tribunal explained that it does not have jurisdiction to make a decision in relation to this issue as part of the current proceeding, because such matters do not form a part of a participant’s SOPS – see s 33(2) of the NDIS Act, which specifies the matters a SOPS is to contain. In other words, the Tribunal does not have power to require the NDIA to include a provision in ZWXT’s SOPS or to otherwise direct that the NDIA arrange a face-to-face meeting with F whenever ZWXT’s plan is reassessed. As an aside, and despite this being beyond the Tribunal’s jurisdiction, the NDIA informed the Tribunal that it has agreed to this request by F.

20. Finally, F requested that the NDIA amend the “About me” information inserted by the NDIA in ZWXT’s SOPS. The Tribunal explained that it does not have jurisdiction to make a decision in relation to such matters as they do not form part of the current proceeding, because this is not a matter forming part of a participant’s SOPS – see s 33(2) of the NDIS Act. As an aside, the NDIA informed the Tribunal and F at the hearing that it would “look into this issue”.

21. The NDIA contends that the three Requested Supports are not “reasonable and necessary supports” under s 34(1) of the NDIS Act and should not be included in ZWXT’s NDIS plan.

22. At the resumed hearing on 17 January 2024, the Tribunal was informed by the NDIA that ZWXT’s NDIS plan was “auto extended” for a further 12 months. Based on an explanation provided by the NDIA, the Tribunal understands this to mean, in effect, that the “reassessment date” in ZWXT’s SOPS was extended for a further period, which had the effect of reinstating funding available to ZWXT on his MyPlace portal. The NDIA informed the Tribunal that a new SOPS for ZWXT was not issued by the NDIA as part of this process.

23. F told the Tribunal that he was disappointed that this had taken place without proper consultation with him, after he had been promised by the NDIA that this would not occur. Notably, the additional supports that the NDIA was now satisfied were “reasonable and necessary supports” for ZWXT, as described in paragraph [16] above, were not incorporated into his plan as part of the NDIA’s “auto extension” process and instead, all existing supports were replicated on a pro rata basis. The Tribunal is sympathetic to F’s sense of frustration about this as those new supports which the NDIA is now satisfied are ‘reasonable and necessary supports’ should have been incorporated into ZWXT’s more recent NDIS plans.

    ISSUES

24. The issue arising in this proceeding is whether the Requested Supports are “reasonable and necessary supports” for ZWXT under the NDIS Act, and consequently, should be included in ZWXT’s SOPS in his NDIS plan and funded under the NDIS.

    LEGISLATIVE FRAMEWORK

25. The NDIS was established under the NDIS Act and operates in pursuit of the objectives set out in s 3 of the NDIS Act. Section 4 establishes general principles guiding actions to be taken under the NDIS Act.

26. Section 31 of the NDIS Act establishes a set of general principles that apply to the preparation, variation, reassessment, and replacement of a NDIS participant’s plan, as reproduced below:

    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.

27. Section 31 of the NDIS Act sets out several principles that apply in the development of a NDIS plan for a participant. The purpose of the plan is to state how the funds provided for the participant’s supports are to be managed. The plan is the instrument that governs what funding the participant is entitled to receive under the scheme.

28. Each plan must have in it an approved SOPS; and a plan does not take effect until a SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Specifically, s 33 of the NDIS Act sets out certain matters that must be included in a participant’s plan, including the participant’s statement of goals and aspirations (s 33(1)) and a SOPS, which is prepared with the participant and approved by the CEO (or his or her delegate), in accordance with s 33(2).

29. Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether to approve the SOPS under s 33(2), must:

    (a)  have regard to the participant’s statement of goals and aspirations; and

    (b)  have regard to relevant assessments conducted in relation to the participant; and

    (c)   be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

    (d)  apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and

    (e)  have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

    (f)    have regard to the operation and effectiveness of any previous plans of the participant.

30. The NDIS rules referred to in s 33(5)(d) include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (‘Supports Rules’).

31. Section 34(1) of the NDIS Act provides as follows:

    34       Reasonable and necessary supports

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

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

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

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

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

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

    (f)the support is most appropriately funded or provided through the [NDIS], and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:

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

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

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

1. The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency (2017) 157 ALD 520 at [43], as follows:[2]

   The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) to (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (the 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, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.

   [2] The Tribunal notes that this decision was appealed but that the appeal was dismissed: refer National Disability Insurance Agency v McGarrigle (2017) 157 ALD 458.

2. More recently, Colvin J in Public Trustee of South Australia (as litigation representative for Isherwood) v National Disability Insurance Agency (No 2) [2023] FCA 852 at [17] to [23], decided that there is a two-stage process for a decision-maker to deploy the concept of “reasonable and necessary supports” in the NDIS Act as a whole. The first stage is to decide whether it is a reasonable and necessary support in light of the provisions of the NDIS Act as a whole, including the guiding principles set out in s 4 of the NDIS Act. The second stage is for the decision-maker to reach an affirmative state of satisfaction as to each of the six criteria set out in s 34(1) of the NDIS Act. Those criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded under the NDIS.

3. The Tribunal has considered the following Operational Guidelines published by the NDIA on its website:

   (a)Operational Guidelines issued by National Disability Insurance Agency entitled “Principles we follow to create your plan” (updated on 25 September 2023);[3]

   (b)Operational Guidelines issued by National Disability Insurance Agency entitled “Reasonable and necessary supports” (updated on 6 October 2023).[4]

   [3] What principles do we follow to create your plan? | NDIS

   [4] Reasonable and necessary supports | NDIS

   EVIDENCE AND HEARING

4. F lodged ZWXT’s hearing tender bundle on 16 June 2023 (‘ZWXT’s HTB’).

5. The NDIA lodged its HTB on 17 July 2023 (‘NDIA’s HTB’).

6. ZWXT relies upon the following key evidence:

   (a)Statement of Lived Experience by F dated 8 June 2023 (‘F’s SLE’);

   (b)expert report prepared jointly by Ms Helen Salter, Psychologist, and Ms Steph Franklin, Behaviour Consultant, from Learn To Shine Psychology for Children Pty Ltd dated 21 October 2021 (‘First Learn to Shine Report’);

   (c)further expert reports by Ms Salter dated:

   (i)4 August 2022 (‘Second Learn to Shine Report’);

   (ii)8 June 2023 (‘Third Learn to Shine Report’);

   (iii)22 June 2023 (‘Fourth Learn to Shine Report’);

   (d)expert reports by Ms Danni Gheorghe, OT, dated:

   (i)14 October 2021 (‘First OT Report’);

   (ii)5 August 2022 (‘Second OT Report’);

   (iii)3 November 2022 (‘Third OT Report’);

   (e)experts reports by Ms Emma Trang, speech pathologist, dated:

   (i)27 September 2021 (‘First SP Report’);

   (ii)29 July 2022 (‘Second SP Report’);

   (iii)25 November 2022 (‘Third SP Report’).

   (f)quotations dated 8 June 2023 provided by Learn to Shine for:

   (i)psychology/counselling;[5] and

   (ii)ABA therapy.[6]

   [5] NDIA’s HTB T2.8.

   [6] NDIA’s HTB T2.9.

7. ZWXT relies upon the submissions contained in his Statement of Facts, Issues and Contentions dated 16 June 2023 (‘ZWXT’s SFIC’).

8. The NDIA relies upon the evidence listed in the NDIA’s HTB which includes:

   (a)the documents lodged with the Tribunal in accordance with s 37 of the Administrative Appeals Tribunal Act 2013 (Cth) (‘T-Documents’);

   (b)cognitive assessment report of ZWXT by Ms Valajcovski and Ms Salter  dated 1 July 2022 (‘Cognitive Assessment Report’);

   (c)an expert report by Professor Sandbank dated 21 July 2022 which was prepared in relation to another unrelated application before this Tribunal (‘Prof Sandbank’s Report’).

9. The NDIA lodged its Statement of Facts, Issues and Contentions dated 30 June 2023 (‘NDIA’s SFIC’).

10. The first day of the substantive hearing in this matter took place on 17 August 2023. F, Ms Franklin, and Ms Salter gave oral evidence at this hearing.

    Introduction of substantial new evidence by the NDIA after the hearing had concluded – application by the NDIA to re-open the matter

11. After the substantive hearing in August 2023 had concluded and while this matter was reserved, the NDIA sought to lodge with the Tribunal and rely upon a new 93-page report prepared by an independent expert engaged by the NDIA, Dr Ken MacLean, Paediatrician and Clinical Geneticist, dated 4 September 2023 (‘Dr MacLean’s Report’).

12. The NDIA lodged a set of supplementary submissions dated 13 September 2023 contending that having considered the opinions in Dr MacLean’s Report, its position in relation to the Requested Supports had not changed (‘NDIA’s Supplementary Submissions’).

13. F objected to the Tribunal re-opening this matter to accept Dr MacLean’s Report into evidence. The Tribunal listed the matter for an interlocutory hearing (‘Interlocutory Hearing’) and requested submissions from the parties as to whether the Tribunal should re-open this matter. The NDIA lodged a written submission dated 13 October 2023. After hearing from both parties about this issue at the Interlocutory Hearing on 7 December 2023, the Tribunal granted the NDIA’s application and listed this matter for a resumed substantive hearing on 17 January 2024 to provide an opportunity for the parties, and the Tribunal, to ask Dr MacLean questions about his report regarding ABA therapy as an intervention for ZWXT with his type of disability. Only Dr MacLean gave oral evidence at this hearing on 17 January 2024 and F clarified some factual matters for the Tribunal further to the oral evidence he gave on the first day of the hearing.

14. At the Tribunal’s request, Dr MacLean prepared an executive summary dated 21 December 2023 in respect of his 93-page expert report (‘Dr MacLean’s Executive Summary’) and also a marked-up version of his 93-page expert report to show which text was authored by him, which text was paraphrased from other sources, and which text was replicated word-for-word from other sources. This was difficult to ascertain from the original report of Dr MacLean.

15. Of his own volition, Dr MacLean also lodged a further supplementary 13-page report dated 3 January 2024, before the resumed substantive hearing took place on 17 January 2024 (‘Dr MacLean’s Supplementary Report’).

    CONSIDERATION

    Evidence relevant to ABA Therapy

16. ZWXT currently attends ABA Therapy at Learn to Shine. F would like ZWXT to be funded for this type of therapy so that he may continue to receive it in addition to other therapeutic interventions, specifically, speech pathology, psychology, and occupational therapy.

17. The NDIA contends that ABA therapy for ZWXT is not a “reasonable and necessary support” under s 34(1) of the NDIS Act. The NDIA’s view is that ABA therapy should generally be targeted at younger children (that is, younger than ZWXT who is now 14 years old). The NDIA contends there is conflicting evidence about whether ABA therapy is effective for children as they get older. The NDIA considers that there is a lack of evidence about whether ABA therapy is an effective intervention for a person with a disability arising from impairments caused by the condition of Down Syndrome. As mentioned above, the NDIA is concerned about there being a duplication of supports to ZWXT.

18. At the hearing, the NDIA confirmed that:

    (a)Learn to Shine’s quotation for fees dated 8 June 2023 for the requested ABA Therapy for ZWXT is $12,630 per annum; and

    (b)Learn to Shine’s quotation for fees for the psychology/counselling was slightly higher than the figure provided in its previous quotation,[7] due to slight rate increases set by the NDIS Pricing Arrangements and Price Guide.[8]

    [7] ZWXT’s HTB, p.273.

    [8] Updated NDIS Pricing Arrangements and Price Guides are updated and issued at the start of every financial year.

19. ZWXT has received ABA therapy from Learn to Shine up until the current time. F told the Tribunal that Learn to Shine has been willing to waive its fees. However, at another stage in the hearing, F said that Learn to Shine may have been paid from ZWXT’s core budget. He did not seem entirely sure about this. The Tribunal sought clarification about this matter before handing down its decision. The NDIA provided a record of expenditure of the funding in ZWXT’s NDIS plan within which there is no record of Learn to Shine having been paid from ZWXT’s core funding. The Tribunal notes that F has not claimed any reimbursement of fees for past services rendered to ZWXT by Learn to Shine. F confirmed he did not have a debt with Learn to Shine, nor was there any claim by F for funding for ZWXT to pay for past services rendered by Learn to Shine to ZWXT, as part of this proceeding. The Tribunal infers from this that Learn to Shine has, until now, waived its fees for services rendered to ZWXT.

    F’s evidence about ABA therapy and other therapeutic inventions

20. At the hearing, the NDIA and the Tribunal questioned F about his direct observations of the ABA therapy being delivered to ZWXT at Learn to Shine by the therapist and therapy assistant, and also his observations about the other types of therapeutic interventions being delivered to ZWXT.

21. At the hearing, F told the Tribunal that ABA therapy had been “the best therapy” for ZWXT “out of the whole lot”. F said he remained present with the therapist during the ABA therapy sessions to watch what was going on, and to observe what ZWXT was learning. F said they will “continually press” ZWXT “for advancement in everything”. F proudly reported to the Tribunal that ZWXT now knew “the difference in days and the sequence of numbers”. F said this was “so good” and that ABA therapy “is different from other supports”. He said in ABA therapy, they will “test [ZWXT’s] memory”, which, F said is “very important”. F said he attended these sessions with ZWXT once a fortnight or month. F said he “sees the results” with ZWXT, both in the therapy sessions and “at home”.

22. At the hearing, F was asked by Mr Daley whether ABA therapy would have been more effective and beneficial for ZWXT if he had received it earlier in his life. F said he did not know how to answer this question because ZWXT did not receive this type of therapy earlier on. F is not an expert in relation to this type of therapy. The value in F’s evidence is that he was able to recount his direct observations as to how ZWXT was responding to ABA therapy and the other therapeutic interventions. F said that from what he was able to observe, ABA therapy has been beneficial for ZWXT.

23. Specifically, at the hearing, F was asked about ZWXT’s progress since receiving ABA therapy and also other types of interventions and whether F could be certain that the ABA therapy in particular, was assisting ZWXT’s progress. F stated as follows (emphasis added):

    ZWXT is 13, has been there [at Learn to Shine] two or three years, and the progress is amazing. Answer is I don’t know. I have only had custody of ZWXT six or seven years. He’s been doing all types of therapies. The parents at ZWXT’s school put me onto it.

24. F was asked if there had been a significant improvement in relation to ZWXT. F answered (emphasis added):

    Yes, ABA, OT, speech pathology, psychology and ZWXT being out in mainstream society mixing with normal children. I treat ZWXT as I would treat my younger son. I have given him certain privileges but nothing out of the ordinary. It is a combination of the whole lot. Don’t know if can put it down to one or the whole lot. A huge amount goes into their upbringing, like with other children. Not just one thing.

25. F was asked if the increase in the amounts of funding for other types of therapies would assist ZWXT. F did not answer this directly but said that when he took custody of ZWXT, he was non-verbal and now he is not, which he has put down to being “through everybody’s help”.

26. F gave evidence about what happened at the ABA therapy sessions. His evidence was to the following effect:

    We will go through a session of numbers. We start with 1 to 10, put them in sequence. The progress from 1 to 100, put them in sequence. Now ZWXT can go up 1 to 100 (with a few mistakes). Not able to do it at first. Techniques, use cut out numbers and put all numbers on floor. Put them into sequence. He loves it. ZWXT is most wonderful, beautiful little boy. He likes to please. So, they get him to do a sequence. Then they get him to put them backwards. So, he understands concept of that, before, after, and in between by using different figurines. They ask him different things like we will get you to do four different activities and you have to do them in sequence. Designed to improve his comprehension, ability to think, and to memorise. It is so beneficial. Even simple things at home. ZWXT, you need to have breakfast, a shower, and to get dressed. His memory span is improving a great deal. Like every child, he is prone to selective hearing and memory.

27. When F was asked at the hearing whether there were any behavioural issues, he said that ZWXT is going through adolescence and puberty. He said it was something he does not know how to deal with, in respect of a child with a disability. He said he has asked for help in this area. He added: “Not only for myself but for everyone else’s benefit. I don’t want him to be in trouble later on in life - that he understands the difference between right and wrong”.

28. F further explained that with ABA therapy they will “go through a system of dangers and strangers” with ZWXT. F explained that as a feature of Down Syndrome, ZWXT is “very loving and caring. He would run up and hug everyone. A great thing to have but people do not appreciate or understand it. A few have been repulsed by it”. F said the ABA therapists have helped him by teaching him who is okay to hug, that is, family and friends, but not to hug strangers.

29. When asked whether ABA therapy helps ZWXT with communicating what he wants, F answered “Yes and no”. F said there are “a lot of meetings between all the therapists” and that they agree “not to double up, so to speak on what they are doing”. F said the ABA therapy might “do a bit of speech” but will “leave it more to the speechie”.

30. F confirmed at the hearing that ZWXT attends two-hour sessions per week at Learn to Shine. He said that ZWXT will be with one of the therapists, “Steph”, for one session and then with Steph and F for another session.  F said he had been in a session with the ABA therapy assistant and they will go through about six different aspects, so that ZWXT does not get bored. F said he learns it and then, it will be reinforced at home.

31. F gave evidence that all he really wants is “the best for ZWXT”. He said that when he took custody of ZWXT, he was non-verbal and his motor skills were “next to nothing”. F said that through the School, and the parents at the School, he was provided with information about speech pathology, OT, child psychology and ABA therapy. He said that during the pandemic, ZWXT had a bowel infection and he was “screaming every night”. He said that ZWXT did speech pathology and ABA therapy and that his speech “has improved 100 percent”. F said that the NDIA has “cut the funding for the speech”. F said he needs this to help him to “socialise and progress” and that he was only asking for one session per fortnight. F said there is a quote for $9,880 for speech group therapy but F said they “do not use that” and are “not interested”. He said they were only interested in the fortnightly individual session for ZWXT.  

32. The Tribunal found F to be a forthright and credible witness and accepts his evidence in relation to his observations about the gains observed by ZWXT from the different therapeutic interventions, including ABA therapy, being delivered to him.

    Ms Franklin’s evidence - treating board certified behaviour analyst

33. Ms Franklin gave evidence at the hearing of this matter on 17 August 2023. Ms Franklin is ZWXT’s treating behavioural analyst at Learn to Shine. She confirmed that ZWXT is participating in an ABA program consisting of one two-hour session per week.

34. Ms Franklin gave evidence that she is a Board-certified behavioural analyst under the United States Board of Certified Behavioural Analysts and the Australian ABA Board which she said has only recently been established. Ms Franklin said that the latter professional body has started to monitor ABA therapy in Australia. She said she has been registered with the Australian ABA Board for about one month.

35. When Ms Franklin was asked what she was required to do to become registered or certified as a behavioural analyst, she said she was required to:

    (a)complete at least 1,500 hours of supervised practice, working within the behavioural analyst field;

    (b)hold a Master’s degree in a relevant field (Ms Franklin has a Master’s in Special Education Needs which she attained at Deakin University in 2005); and

    (c)complete a verified course sequence specific to ABA (specifically, Ms Franklin said she attained a Graduate Certificate in Applied Behavioural Analysis through Griffith University in 2020).

36. At the hearing, the First Learn to Shine Report she had authored was “current”, except that ZWXT had “made progress” since her report was issued.

37. Ms Franklin said that she has been treating ZWXT since February 2021 and confirmed she has provided him with intensive behavioural intervention pertaining to his Down Syndrome. She said the treatment model she followed to perform assessments, and to develop individualised programs, was described in her report. Ms Franklin said the role of therapy assistance (which the Tribunal understands to mean the use of a therapy assistant to deliver the treatment at the direction of an allied health therapist), is embedded in the work of the clinic. She also said that F will “generalise” the strategies or tools in ZWXT’s home, and community settings, as described in her report.

38. At the hearing, Ms Franklin was asked about the statement in her report to the effect that ZWXT was making “significant progress” towards his goals. She said that they are always “tracking data” and that he has progressed through several goals. She said he has re-commenced reading and that his working memory has improved. This is consistent with the evidence of F given at the hearing.

39. The Tribunal asked Ms Franklin whether ZWXT was expected to hit a ceiling with respect to outcomes from ABA therapy at some point and if so when this was expected to be. Ms Franklin said that she could not provide an exact time frame and that it would depend on how quickly he attained his goals. As a general proposition, she said that they would not make anyone continue with therapy if they were not making any progress at all. The Tribunal regarded Ms Franklin as a forthright and credible witness and accepts her evidence as set out in this paragraph.

40. At the hearing, Ms Franklin acknowledged that when she authored her report on 21 October 2021, she had only been working with ZWXT since February 2021. Ms Franklin was asked by Mr Daley during cross examination, to state the basis upon which Ms Franklin had made a comment in her report referrable to a 12-month period to precede the date of issue of her report. Ms Franklin said that it was based on conversations she had with F and the direct observations she made of ZWXT in the seven-month period she had been treating him, prior to the issue of her report. The Tribunal does not attribute any less weight to Ms Franklin’s opinions as expressed in her report on account of this discrepancy.

1. In Ms Franklin’s Report, she referred to COVID-19 as being a significant barrier to ZWXT receiving access to supports. When asked about this at the hearing, Ms Franklin agreed this is no longer the case and that if she were to re-issue her report now, she would remove the reference to COVID-19 as a barrier. The Tribunal does not attribute any less weight to Ms Franklin’s opinions as expressed in her report on account of this amendment.

2. In Ms Franklin’s Report, she referred to F being a single parent and having limited time to implement the therapies at home. She also stated that F was implementing the goals in the plans but that he was “busy meeting needs at home” in relation to ZWXT’s other siblings. Ms Franklin was asked whether she was referring to B in this statement in her report and she confirmed that she was. She said she was aware that ZWXT also had older adult siblings and that they were not in F’s care.

3. During cross examination, Ms Franklin was taken to her recommendations for supports/interventions for ZWXT.[9] Those recommendations included:

   (a)behavioural intervention program supervision: 13 sessions a year — 2 hours per session

   (b)therapy Assistants: 4 hours per week;

   (c)Learn to Shine Senior Therapy Assistant — 4 sessions per year;

   (d)fortnightly psychology sessions (subsequently, Ms Salter recommended, in 2023, that the frequency be reduced to monthly psychology sessions) and a cognitive assessment for school entry.

   [9] NDIA’s HTB, p.33.

4. Ms Daley enquired of Ms Franklin whether her recommendation of ABA therapy involved any “counselling”. Ms Franklin confirmed that it did not.

5. When asked by Mr Daley, Ms Franklin indicated that:

   (a)she was not aware that the NDIA now considered that funding 18 hours of psychology per year for ZWXT was a “reasonable and necessary support”; and

   (b)knowing this, did not change her recommendations for ZWXT.

6. Mr Daley referred to Ms Franklin’s recommended goals for ZWXT in her report, including  the goals in relation to behaviour, communication, and social skills, and asked Ms Franklin whether “some, if not all, goals” would be addressed by ZWXT’s other therapeutic supports. Ms Franklin accepted that some of the goals “overlapped” but she explained that “the approach when delivering the therapy was different”. She said that this will help to “consolidate” ZWXT’s learning. The Tribunal accepts this evidence.

7. Mr Daley asked Ms Franklin to state her opinion whether, if funding for ZWXT’s other supports were increased, this would reduce his requirement for other supports (such as ABA therapy). Ms Franklin said this would depend on what the intended outcome of those other supports were, and that she did not know the gains to be expected from them.

8. Mr Daley put to Ms Franklin that the NDIA had agreed to fund the following supports for ZWXT: swimming lessons for ZWXT (partially – that is, to pay for the gap in cost between group and individual lessons), 31.5 hours per annum for OT, 54 hours for speech pathology, 18 hours per annum of psychology, and to maintain his other underlying supports. Mr Daley told Ms Franklin that the NDIA had not agreed to fund the requested 126.5 hours per annum of ABA therapy.

9. Ms Daley asked Ms Franklin, again, whether the supports proposed to be funded by the NDIA to ZWXT, would impact on her recommendation in respect of ZWXT for ABA therapy. Ms Franklin said it might potentially decrease the number of hours but that it was difficult for her to say without knowing the intended outcomes. She explained that they used a “different form of teaching” in ABA therapy, so she said she could not comment (in relation to Mr Daley’s question).

10. However, Ms Franklin then highlighted that Ms Salter and she had recommended the “minimum number of hours” they regarded as intensive ABA therapy “to see gains on the program we are implementing”. The Tribunal considers this to be an important point and accepts Ms Franklin’s evidence in this regard given her qualifications and experience in the field of ABA.

11. Mr Daley referred to a reference in the Second Learn to Shine Report to the provision to ZWXT of “Naturalistic Developmental Behavioural Intervention (Pivotal Response Treatment, Applied Behaviour Analysis)”.[10] Mr Daley requested that Ms Franklin explain the difference between pivotal response treatment (PRT) and ABA therapy. Ms Franklin explained there was no difference and instead, that PRT is a “type of model” for ABA therapy. Ms Franklin said the PRT model focussed on “child led goals to maximise the learning”.

    [10] NDIA’s HTB, 191-203.

12. Mr Daley asked Mr Franklin how the approach to therapy would change as ZWXT became older. Ms Franklin said that ZWXT could still continue to expand on those goals, and that the PRT model of ABA therapy “can be used right into adulthood”. Ms Franklin acknowledged that as ZWXT became older, he could do more “table top” activities. She explained that they would use activities that are engaging or enjoyable for ZWXT, to reinforce things.

13. Ms Franklin said that as ZWXT became older they would move away from the PRT model of ABA therapy and she emphasised that they were ultimately aiming that he does not require any type of therapy as he becomes independent. When asked how independent it was expected that ZWXT could be, Ms Franklin said it would depend on how he progressed and that they were building on his skills as much as they could.

14. Ms Franklin gave evidence that that she met with ZWXT’s treating therapists twice per year.

    F’s further evidence about ZWXT’s schooling and meetings between the School and clinicians

15. At the hearing, F gave evidence that ZWXT had commenced Year 7 at the School. He said that he was trying to get ZWXT into another school (‘Other School’). The entrance criterion for the Other School requires their students to have an IQ between 50 and 70. F told the Tribunal that ZWXT was assessed as having an IQ of 56 so he was permitted to undergo a trial at the Other School. He said ZWXT was assessed by the Other School as “lacking in certain aspects in what was expected from him”. F said they were awaiting a report from the Other School and that he would concentrate on getting ZWXT into the Other School where he considered the children were on the same par as ZWXT, and “so he will be in a general public atmosphere”. For now, ZWXT is attending at the School.

16. F gave evidence that there are about eight students in ZWXT’s class at the School. When asked whether the School had created a support plan for ZWXT, he answered “very vaguely”. F said he meets with ZWXT’s teacher about three or four times per year, and that the plan is in writing. He said he had not passed the plan onto Ms Franklin or the other therapists but had talked to them about the goals, such as, to learn how to make a sandwich or to tie his shoelace. F said the therapists meet with each other a “few times a year”, so they do not double up. He said they will overlap but will not double up. He referred to a meeting that had taken place two weeks prior involving Ms Franklin and they were talking about “adolescence”.

    Ms Salter’s evidence – treating psychologist

17. Ms Salter gave evidence on the first day of the hearing. She said she is a registered psychologist with the Australian Health Practitioner Regulation Authority (‘AHPRA’) and has a Bachelor of Arts degree (with majors in Science and Social Work) and a Graduate Diploma in Psychology.

18. At the hearing, Ms Salter said she had not been made aware the NDIA’s position had changed, in that it now considered 18 hours of psychology services per annum to be a reasonable and necessary support for ZWXT. The proposed 18 hours per annum comprise monthly sessions and 4 hours for “stakeholder engagement”, and 2 hours for “report writing”.

19. At the hearing, Mr Daley asked Ms Salter whether she was aware of the specific therapy that was being delivered to ZWXT by the speech pathologist. Ms Salter indicated that she did not know because she did not attend the last meeting with the other treating clinicians because at that time, Ms Salter said she was not a “permanent member” of ZWXT’s team. Mr Daley asked Ms Salter how she could be confident that she was not “doubling up”. Ms Salter said she had provided a quotation for psychological services, and not about speech pathology or OT. Ms Salter said that Ms Franklin had knowledge about the intervention of the other clinicians. Ms Salter said she was not the ABA therapist.

20. Ms Salter provided evidence, consistent with that of Ms Franklin, that the intensity of ABA therapy being provided to ZWXT was “already at a minimum” and to reduce it more, “it will be nothing”. Mr Daley asked Ms Salter whether it was fair to say that more scientific research was required in relation to the benefits of ABA therapy to a person with Down Syndrome. Ms Salter agreed with this proposition. Ms Salter agreed that the clinical observations of ZWXT and the data they had collected on the provision of ABA therapy should also be considered. The Tribunal agrees.

21. At the hearing, Ms Salter gave evidence that her recommendation was that ZWXT attend one psychology session with her per month, one session of ABA per week, and that he should receive funding to attend monthly meetings with the speech pathologist.

    Ms Gheorghe’s evidence – occupational therapist

22. As mentioned above, Ms Gheorghe issued three expert reports in relation to ZWXT (see paragraph [37(d)].

23. In the Second OT Report, Dr Gheorghe confirmed that ZWXT was currently accessing fortnightly services from her clinic. She stated that given ZWXT’s age and the importance of early intervention and the breadth of his challenges, that he required fortnightly OT to achieve the identified goal areas and reduce future risks. Ms Gheorghe stated that the expected functional outcomes from the OT are for him to:

    (a)develop his fine and gross motor skills;

    (b)improve his ability to regulate his emotions;

    (c)develop his social skills, in particular his conversation skills and ability to share and take turns with peers;

    (d)increase his independence in self-care skills;

    (e)increase his self-management skills.

24. Ms Gheorghe stated that OT aims to build ZWXT’s long-term independence. She said that his progress with independence and productivity is likely to significantly reduce the need for extensive supports as he gets older, which she said represents value for money. She said that the OT will “work with the family and other supports” and “is not able to be provided by other agencies or informal supports”.  Ms Gheorghe stated that ZWXT had transitioned to her colleague Alyssa Armytage, OT, at the start of 2022 who had reported to her that ZWXT had been observed, over nine sessions, to:

    …make great progress in his ability to recognise, label and explain what he is feeling and why. With this improvement and adult support, [ZWXT] has been able to implement simple strategies to support his regulation at home and at school. This has resulted in [ZWXT’s] meltdowns reducing in intensity, and an improved ability to participate within his community, for example when he is upset at basketball, he is now able to more frequently identify this and remove himself to get a drink. Additionally, [ZWXT] also has made great improvement in his confidence with gross motor activities. Within therapy, a home motor skill program was developed which aims to support [ZWXT’s] participation in tasks to assist with overall strength, balance and endurance. [ZWXT] engages in these activities with the help of his father and brother at home, and has shown improvement in navigating stairs, following instructions and overall confidence in movement activities.

25. Ms Gheorghe was questioned how ZWXT’s request for funding for cleaning and gardening assistance related to his impairments. Ms Gheorghe responded that it would be reasonable and necessary for ZWXT to receive funding for access to support workers in order to assist him in working towards his functional goal areas and that by ZWXT having access to support workers, this may create time for F to complete necessary household tasks, such as cleaning and gardening. The Tribunal considers that the better approach is to assess whether there are any increased needs for gardening and cleaning by reason of a participant’s disability (compared to a child of the same age without that disability) and if so, support be provided to a participant to meet those increased needs.

26. In the Third OT Report, Ms Gheorghe states that ZWXT’s request for the gap in cost between individual and group swimming lessons is required as a result of ZWXT’s disability. Ms Gheorghe noted that ZWXT has been provided with funding for 26 hours of OT. She also noted that the NDIA is willing to increase this to funding for 30 hours[11] comprising 20 hours for therapy sessions, 6 hours for report writing/assessments and 4 hours for stakeholder engagement. Whilst Ms Gheorghe considers this proposed increase to be sufficient for individual therapy, reports, assessments, and stakeholder engagement, she notes that it does not allow for attendance at group programs and that this was recommended to allow ZWXT to develop his social skills, and in particular his conversation skills and ability to share and take turns with peers.

    [11] The Tribunal notes that the NDIA has indicated that it considers 31.5 hours of OT are a “reasonable and necessary support” for ZWXT.

27. Specifically, Ms Gheorghe recommended that ZWXT receive the following OT services per annum:

    (a)20 x 45-minute OT sessions per year;

    (b)5 hours of planning and note writing;

    (c)standardised face to face motor skills/handwriting assessment of 1.5 hours with 2 hours for report writing;

    (d)1 hour for face-to-face attendance at meetings;

    (e)2 hours for ”liaising with the care team”;

    (f)3 face to face group sessions (1:3) for 4.5 hours with 20 minutes per session for session planning and note writing;

    (g)45 min face to face session for plan review report with an allowance of 1.25 hours  for report writing.

    Ms Trang’s evidence – treating speech pathologist

28. In the Third SP Report, Ms Trang stated that ZWXT will benefit from 1:1 intervention, provided by speech pathologists, to work on his complex communication needs. Ms Trang acknowledged that ZWXT received general input at the School, specifically, that the speech pathologist at the School will provide advice and input in the classroom but they do not provide individual or group interventions. Ms Trang stated that this input at the School is not individualised for ZWXT’s needs. Ms Trang stated that ZWXT is likely to regress and have significant difficulties participating in his community without speech pathology intervention. Ms Trang noted that ZWXT has been allocated funding for 26 hours of speech pathology per annum, comprising weekly speech therapy session, 4 hours of stakeholder engagement and 2 hours for report writing. She regards this as being sufficient and that it will enable him to increase his independence and communication.

29. At the hearing, the NDIA confirmed that it considers that 54 hours of speech pathology per annum for ZWXT is a reasonable and necessary support. The NDIA said this comprises 48 one-hour weekly sessions, 4 hours for “stakeholder engagement” and 2 hours for report writing.

    Dr MacLean’s evidence - Independent Medical Expert – General Paediatrician

30. As mentioned above, the NDIA lodged an expert report by Dr MacLean after the hearing concluded. As mentioned above, the Tribunal granted the NDIA’s request to reopen this matter. Dr Maclean gave evidence at the resumed hearing. When the NDIA engaged Dr MacLean to provide an expert report, F did not consent to him examining ZWXT or interviewing F about ZWXT. Consequently, Dr MacLean’s Report was prepared following a “desk top review” of relevant documentation provided to him by the NDIA. Dr MacLean also reviewed a number of literature and research articles in respect of ABA therapy as an intervention. Dr MacLean was also provided with a copy of the report issued by Professor Sandbanks in relation to another unrelated application before the Tribunal.

31. In Dr MacLean’s Report, he was asked by the NDIA what functional benefits and outcomes, if any, the proposed ABA therapy of 126.5 hours per annum would provide to ZWXT in light of his age and type of disability. Dr MacLean opined that he expected they would be “modest gains equivalent to” those “individually attained by OT, speech therapy and psychological counselling”.[12] Dr MacLean went on to explain ZWXT’s chronological age is almost 14 years being mid-adolescence and that his developmental age corresponds to that of a pre-school aged child with respect to his speech and language, motor skills, cognition, self-care, emotional regulation, social skills, and independent living skills, while noting this was a “broad view”. Dr MacLean stated that ZWXT’s comprehension is his weakest skill and visuospatial skills are a relative strength. He stated that the cognitive assessment conducted of ZWXT in 2021, and accompanying suggestions, had assisted in targeting therapies and adjusting interventions to suit his needs, abilities, rate of learning and difficulties in retention and handling of new information. He stated that ZWXT continues to gain skills.[13]

    [12] Dr MacLean’s Report, p.35.

    [13] Ibid, p.36.

32. In Dr MacLean’s Report, Dr MacLean was asked by the NDIA what kind of alternative combination of therapies, if any, could achieve the same outcome as the proposed ABA therapy and if so, why. Dr MacLean listed the following alternative combination of therapies: “developmental therapy interventions, OT, speech therapy, psychological intervention/positive behavioural support”. Dr MacLean pointed out there is scope for ZWXT to obtain six to ten sessions with the psychologist in a 12-month period under a Mental Health Plan. Dr MacLean did not answer the question as to why those combination of therapies could achieve the same outcome as the proposed ABA therapy, even though he was prompted by the question posed by the NDIA to do so.[14]

    [14] Ibid.

33. Dr MacLean was asked by the NDIA to state in his report whether the effectiveness of the proposed ABA therapy would be impacted if ZWXT did not also receive at the same time as the ABA therapy, “speech therapy, occupational therapy or any other identified additional support therapy”. Dr MacLean responded by stating the following in relation to each of these different types of interventions:

    (a)speech therapy is the “cornerstone” for ZWXT and would be “required throughout his adolescence years”. He stated that “it” is a “fundamental disability” and a “cardinal contributor” to ZWXT’s “behavioural difficulties”. He stated that speech therapy focuses on speech, including speech sounds and articulation, receptive and expressive language skills, Assistive and Augmentative Communication (recently introduced to the school).[15] Dr MacLean opined that an absence of speech therapy, whether weekly as advised currently or fortnightly in the future, could be predicted to have an adverse effect on his communication and behaviour in late adolescence adulthood;

    (b)OT focussed on fine and gross motor skills, activities of daily living, emotional regulation, and sensory aspects. Dr MacLean stated as follows: “Given the nature of [ZWXT’s] disorder – moderate [intellectual disability] affecting motor planning; hypotonia that is the hallmark of [Down syndrome], low muscle power, low conditioning and incoordination affecting motor skills, strength, and exercise tolerance, [its] absence is predicted to adversely affect his future functional abilities. Its focus on social skills and emotional regulation ensures intervention directed to social interaction. A critical role is in the development of self-care skills and self-management [appropriate to his level of disability]”;[16] and

    (c)psychological counselling is important for ZWXT and F and “the focus is on emotional function and executive function”. Again, Dr MacLean pointed out that F may be able to seek psychological services under a Mental Health GP Care Plan;[17]

    [15] Ibid.

    [16] Ibid, p.37.

    [17] Ibid.

1. The Tribunal is also satisfied that s 34(1)(f) is met as there was no other general service system which the NDIA had suggested, nor that the Tribunal is aware of, which might be more appropriate, than the NDIS, to provide this support.

2. In conclusion, the Tribunal is satisfied that each of the criteria under s 34(1) of the NDIS Act is met in respect of the requested ABA therapy of 126.5 hours per annum, in addition to the other therapeutics interventions (OT, speech therapy and psychology services), that the NDIA considers to be reasonable and necessary supports for ZWXT.

   Increase in hours to fund quarterly multidisciplinary clinician meetings

3. The Tribunal also considers that the two-hour allocation that the NDIA proposes should be funded under the NDIS for “stakeholder engagement” by the OT, speech pathologist and psychologist, should be doubled to eight hours per annum of funding per annum, and a further additional provision of 8 hours should be provided in respect of the ABA therapist. The Tribunal considers this to be a reasonable and necessary support for ZWXT as it will enable ZWXT’s treating clinicians to participate in quarterly two-hour multidisciplinary clinician meetings. Preferably, F will be present for some or all of them, as the clinicians consider as appropriate, to ensure that they adopt a multidisciplinary (coordinated) approach to the delivery of their interventions individually, and as a set of interventions, to ZWXT, to maximum the prospects of ZWXT achieving optimal overall outcomes. The Tribunal is satisfied that this has been lacking in the past, as highlighted during the hearing by the NDIA’s representative. At the hearing, F said that he considers that there needs to be greater coordination between all of the therapists and that until the hearing, he had not realised how important this is.

   Domestic cleaning and garden maintenance services

4. The NDIA considers that funding for either of these requested services are not reasonable and necessary supports for ZWXT. The NDIA considers that it is reasonable to expect that F, rather than ZWXT on account of his age, should attend to the domestic cleaning and garden maintenance in their household. The Tribunal considers that a 14-year-old teenager without a disability, regardless of their gender, would be expected to make some contribution to house cleaning and yard maintenance in the home. However, the Tribunal accepts that most of the domestic cleaning and garden maintenance tasks in a household will usually be undertaken by the parent or parents in a household.

5. F gave candid evidence about this issue. He accepted that “times have changed” and in relation to gardening, he said that of F’s eight children, only one of them had “mowed the lawns once”. He also remarked, in humour, that he does not think they know where the laundry is. F told the Tribunal that if this support is not funded, it is “not a drama”. However, he said that in three or four years, ZWXT will be of an age where he should be contributing to this activities but for his disability. F understands that ZWXT will be at liberty to make a fresh request for these supports. F was asked whether he wanted to press on with his request for these supports and his response was that the Tribunal should make a decision about it, as he does not want to “be fighting again”.

6. F said that he is 69 years of age and as he gets older, cleaning and gardening support will become a problem. The NDIA asked F if he had looked at getting supports through council or another program to which he answered, “No”. F said he lives in a standard house with grass in the rear and front yard. F says he has a dog. F said he looks after the trees and shrubs in the garden and does the house cleaning at the moment. He said this takes him a couple of hours per day. When asked why he does it himself, F mentioned there are his two sons, aged 12 and 13 years[26] old and himself, living in the house. F was asked whether there was anything relating to ZWXT’s disability which increased the need for F to clean the home. F said that ZWXT had a “bad habit” of hiding food he does not like, such as behind a chest of drawers, or in or underneath the bed. When asked how frequently he does this, F said about once or twice a month. F said later on that B, who is similar in age, will also hide food around the house. F indicated this requires further cleaning.

   [26] Now, 14 years old.

7. F said that ZWXT is able to toilet independently for the majority of the time. F said may have an “accident on occasion” (in respect of both urinating and defecating) and this might increase his care needs in the home. This might result in soilage around the “surrounds of bathroom or in the bed”. When this occurs, F said that it “all has to be pulled out and redone”. F said that ZWXT last “had an accident in the bed” about one and half month ago. F said ZWXT was “getting better as he is getting older”. He said that “a lot of the times” ZWXT would “become too involved in television or in a game and would forget to go to the toilet”.

8. F gave evidence that ZWXT will leave a mess in the kitchen and leaves things out, but “no more mess beyond another child”. F said he makes a mess in other parts of the home but does not think this is beyond what a 13-year-old[27] without a disability would make.

   [27] Now, 14 years old.

9. The NDIA highlighted that Ms Gheorghe, OT, does not support the request for funding for gardening and cleaning services. As outlined above, Ms Gheorghe suggested that ZWXT should instead be funded for support worker assistance to allow F to undertake those tasks. The NDIA further contends that F and ZWXT have a standard sized garden and F’s evidence is that he is able to maintain it adequately. In regard to cleaning, the NDIA highlights that ZWXT’s continence issues have decreased and that F’s evidence was that ZWXT’s cleaning requirements compared to those of his younger sibling are fairly similar. For this reason, the NDIA contends that ZWXT has not established that this requested support represents “value for money”.

10. The NDIA points out that no detailed quotes have been provided specifying the number of hours required. F gave evidence that only a couple of hours of gardening services are required per month. F said he does not know how many hours of cleaning services are required and that he would leave this to the discretion of the Tribunal.

11. The NDIA contends that the primary purpose of this requested support is to reduce strain on F so that he could spend more time with ZWXT and his brother. The NDIA contends that given the NDIA has proposed to increase (but has not yet done so) the number of hours of funded therapies, that this will “decrease strain” on F. However, this does not take into account the additional time that will be required for F to take ZWXT to the increased number of therapy sessions.

    Whether cleaning and gardening services are reasonable and necessary supports in light of the provisions of the NDIS Act as a whole

12. As mentioned above, the decision in Public Trustee of South Australia requires the Tribunal to consider, as a first stage, whether the cleaning and gardening services are reasonable and necessary supports in light of the provisions of the NDIS Act as a whole, including guiding principles set out in s 4 of the NDIS Act.

13. Section 3(3)(c)(ii) of the NDIS Act also provides that in giving effect to the objects of the NDIS Act, regard is to be had to the broad 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.

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

    (a)s 4(3), which provides 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; and

    (b)s 4(12), which provides that the role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected.

15. The Tribunal considers that the provision of funding to pay for service providers to undertake household services can be a reasonable and necessary support for a teenage participant if it can be shown that increased cleaning and gardening needs arise by reason of their disability and that the participant is incapable (at least to some degree) of undertaking those activities due to their impairments. Such support would serve to recognise and respect of the role of the carer, being F in these circumstances, by supporting him to attend to any such increased needs in the household, by reason of the ZWXT’s disability.

16. Based on the above objectives and guiding principles, the Tribunal is satisfied that household services such as for cleaning and gardening, are reasonable and necessary supports in light of the provisions of the NDIS Act as a whole.

17. The Tribunal will now proceed, as a second stage, to consider whether each of the mandatory criteria in s 34(1) of the NDIS Act are met.

    Whether the mandatory criteria under s 34(1) are met

18. The second stage is for the Tribunal to reach an affirmative state of satisfaction as to each of the six criteria set out in s 34(1) of the NDIS Act. Those criteria are concerned with the extent to which it may be appropriate for a reasonable and necessary support to be funded under the NDIS.

19. In considering whether the criterion under s 34(1)(e) of the NDIS Act has been met, the Tribunal is required to take into account whether it is reasonable to expect that F will undertake the cleaning and gardening services in the household. The Tribunal has focussed on two aspects:

    (a)whether it is reasonable to expect that F will undertake all of the cleaning and gardening in their household while living with two teenage sons, aged 13 and 14; and

    (b)whether the level of cleaning and/or gardening required in F’s and ZWXT’s home is higher than it would be if ZWXT did not have his present disability.

20. The Tribunal accepts that expectations in different households may reasonably differ as to whether teenagers should contribute to cleaning and/or gardening activities required to be undertaken in the household. In some households, this may be required and in others, it may not. If teenagers are expected to contribute to such activities, it may be that they share those chores with other members of the household. It may also be that those activities (or some of them) are undertaken under the supervision of their parent. When considering the criterion under s 34(1)(e) of the NDIS Act, the Tribunal considers that it is not reasonable to expect that F, in light of his current age, will undertake all of these activities without some assistance from his teenage children.

21. In doing so the Tribunal taken into account the objectives and guiding principles as referred to in paragraphs [161] and [162] above, which lean towards the Tribunal finding that is not reasonable in ZWXT’s circumstances to expect that F will undertake all of those activities of cleaning and household.

22. As to the second matter referred to in paragraph [167(b)] above, the Tribunal finds that there is no increase in the amount of gardening required in ZWXT’s home by reason only of his impairments. The Tribunal is not satisfied that the request for gardening services meets the “reasonable and necessary supports” mandatory criteria under s 34(1)(b) of the NDIS Act because they are not effective and beneficial in respect of meeting any disability related need. Accordingly, the Tribunal concludes that the requested garden services are not a reasonable and necessary support for ZWXT.

23. However, there is some evidence before the Tribunal that the cleaning requirements are slightly increased arising from ZWXT’s disability, whether or not F recognises this. The Tribunal acknowledges that F gave evidence that ZWXT is not causing more mess around the home than his younger sibling. However, the evidence suggests there is a some slightly increased need in cleaning, due to ZWXT’s occasional incontinence (although this is reportedly decreasing), his reported challenges with gross motor skills causing him to miss the toilet bowl at times, and ZWXT’s habit of hiding food around the home if he does not like it. It would seem, based on F’s evidence, that ZWXT’s younger sibling is also mirroring ZWXT’s behaviour in this regard. The Tribunal considers that teenagers without disabilities do not typically hide food around the house if they do not like the food, nor do they experience occasional incontinence, or miss the toilet bowel when toileting and not clean it up. The Tribunal find that ZWXT disability does result in an increased need for cleaning. The Tribunal considers this increased need to be modest and that it amounts to no more than one hour of increased cleaning per month.

24. The Tribunal is satisfied that s 34(1)(a) of the NDIS Act is met in respect of these supports because it will assist ZWXT to pursue of goal of “independence and overall quality of life” by living in a home where this NDIS-funded support is contributing to F’s endeavours to keep ZWXT’s living environment clean and well maintained.

25. The Tribunal is satisfied that s 34(1)(b) of the NDIS Act is met because it will assist ZWXT to undertake activities so as to facilitate his social participation in the family unit, albeit indirectly. ZWXT’s contribution as a member of a family unit living in a shared household is important. Until ZWXT develops his own capacity through other interventions to undertake these activities, the provision of a modest level of funded cleaning supports of one hour each per month under the NDIS Act, represents a level of contribution that a teenage son of an ageing father, living without a disability, would otherwise make to a household. The Tribunal is satisfied that the criterion under s 34(1)(b) of the NDIS Act is met.

26. The cost of one hour per month for cleaning services will serve the objectives referred to in paragraphs [161] and [162] above, as well as meet the increased cleaning needs in the home which are likely to arise from ZWXT’s disability. It will facilitate the contribution by ZWXT, albeit indirectly, to his family unit and household. It will recognise and respect the rights of F as ZWXT’s carer to gain some assistance with those activities which would not have arisen but for ZWXT’s disability. For the same reasons, the Tribunal is satisfied that these supports are likely to be effective and beneficial and may prevent carer burnout by F in his need to undertake an increased amount (albeit slight) of cleaning he is required to undertake, arising from ZWXT’s disability.  

27. In conclusion, the Tribunal is satisfied that the six mandatory criteria under s 34(1) of the NDIS Act are met in respect one hour per month of cleaning services.

    Reassessment date

28. At the hearing, F expressed a number of concerns about the NDIA’s approach during the earlier plan reviews and also as part of this proceeding before the Tribunal. It was evident that F found those experiences to be negative and that he does not wish to go through this experience again, if it can be avoided. This is relevant to the decision of the Tribunal about the appropriate length of a new plan to be put in place for ZWXT.

29. The notional duration of ZWXT’s NDIS plan referred to in the internal review decision dated 2 February 2022, that is, his plan dated 26 October 2021, was for a notional duration of 12 months. The notional plan period of his subsequent plan was reduced to 6 months but not for any specified reason, and then subsequently increased to 12 months for his current plan.

30. At the hearing, the Tribunal requested some more information about ZWXT’s schooling and specifically, whether he would be going to a new school in 2024. F said that ZWXT is at the School for the time being. F explained that he was endeavouring to gain entry for ZWXT to the Other School. At the present time though, it would seem that ZWXT will remain at the School. The other aspects of ZWXT appear to be stable, such as his present living arrangements and his extracurricular activities such as basketball. The only challenge or potentially destabilising effect that  ZWXT appears to be facing at the moment, relates to his stage of life, that is, now being an adolescent.

31. The Tribunal considers it appropriate to maintain status quo and to nominate a reassessment date which is 12 months from the date of approval of a new statement of participant supports for ZWXT pursuant to this remittal. The Tribunal notes that the NDIS Act provides a mechanism for unscheduled plan reviews if ZWXT’s circumstances change within the next 12 months that warrant an early review.

    CONCLUSION

32. In conclusion, the Tribunal sets aside the decision under review and remits this matter to the Respondent with a direction that on or before 8 April 2024, a new statement of participant supports is to be approved for ZWXT containing the following:

    (a)funding for the following supports:

    (i)replication, on a pro rata basis, of ZWXT’s existing funded supports listed in paragraph [17] of these Reasons for Decision;

    (ii)funding for additional supports which the NDIA has been satisfied since at least August 2023, are reasonable and necessary supports for ZWXT:

    ·54 hours per annum of speech pathology;

    ·31.5 hours per annum of OT;

    ·18 hours per annum of psychology services;

    ·$1,499 for assistive technology for the purchase of an iPad; and

    ·$572 per annum representing the gap between the price of individual and group swimming lessons for ZWXT;

    (iii)funding for 126.5 hours per annum of ABA therapy;

    (iv)in order to adequately provide for a total of two-hour quarterly multidisciplinary meetings per year, between all of ZWXT’s treating clinicians, as discussed in paragraph [151] of these Reasons for Decisions:

    ·         4 hours for OT, 4 hours for speech pathology, and 4 hours for psychology services (that is, in addition to the 4 hours for “stakeholder engagement” for each of those different therapists, already provided for as a component of supports referred to in (a)(ii) above); and

    ·         8 hours for the ABA therapist; and

    (v)funding for one hour per month of cleaning services; and

    (b)a provision specifying that the reassessment date is 12 months after the date of approval of the new statement of participant supports for ZWXT, pursuant to this remittal.

I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member K. Parker

........................................................................

Associate

Dated: 25 March 2024

Date(s) of hearing:

17 August 2023 & 17 January 2024

Date final submissions received:

Date final expert report received:

13 October 2023

9 January 2024

Applicant:

In person

Advocate for the Applicant:

Self-represented by F

Solicitors for the Respondent:

Mr M Daley
(instructed by Mr Tran, NDIA Case Manager)