ZWXT and National Disability Insurance Agency

Case [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]…

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ZWXT and National Disability Insurance Agency [2024] AATA 543
Case
[2024] AATA 543
Decision Date

CaseChat Overview and Summary

This matter concerned an application by ZWXT, a child participant in the National Disability Insurance Scheme (NDIS), for review of a decision made by a delegate of the Chief Executive Officer of the National Disability Insurance Agency (NDIA). The dispute centred on whether funding for Applied Behavioural Analysis (ABA) therapy and other supports should be included in ZWXT's NDIS plan, specifically whether these supports qualified as "reasonable and necessary" under section 34(1) of the *National Disability Insurance Scheme Act 2013* (Cth). The Administrative Appeals Tribunal (AAT) considered the effectiveness and benefit of ABA therapy for ZWXT, given his age and genetic condition (Down Syndrome), and whether it would duplicate other therapeutic interventions.

The legal issues before the Tribunal were whether ABA therapy and other requested supports were "reasonable and necessary" under the NDIS Act. This required the Tribunal to assess the evidence regarding the efficacy of ABA therapy for a child of ZWXT's age and with his specific disability, and to determine if such therapy would be duplicative of existing supports such as speech pathology, occupational therapy, and psychology services. The Tribunal also had to consider the overall composition of ZWXT's NDIS plan to ensure it adequately addressed his goals and needs.

The Tribunal reasoned that the NDIA's contention that ABA therapy was generally only effective for younger children and lacked evidence for individuals with Down Syndrome was not sufficiently supported by the material before it. It considered evidence presented by ZWXT's father and expert reports, including one from Dr. Ken MacLean, a paediatrician and clinical geneticist. The Tribunal ultimately found that ABA therapy, along with other requested supports including increased hours of speech pathology, occupational therapy, psychology services, assistive technology, swimming lessons, cleaning services, and multidisciplinary meetings, were reasonable and necessary for ZWXT.

The Tribunal set aside the NDIA's decision and remitted the matter with a direction that a new statement of participant supports be approved for ZWXT. This new statement was to include funding for the existing supports, the additional supports identified as reasonable and necessary, and a reassessment date of 12 months from the approval of the new statement.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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 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’). 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’). 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. 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. 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 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. 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.

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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 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.