The applicant relied on the report from Ms A. Connell Director and Registered Music Therapist which appears at pages 437- 434 of the JTB. That report refers to the Applicant's attendance at music therapy from 2022/2023 to date (26 October 2023) which is reported to primarily focus on well-being and reducing anxiety in the Applicant's social interactions with others.
In addition to the matters outlined above, the report refers to a further focus of the program concerning communication skills for the Applicant. Reference is made to the Applicant using song to communicate (noting his general non verbal position) where he is reported to use words and song choices to communicate his preferences, using certain musical phrases and tunes with words to signify certain things and communicate accordingly.
Future 60 minute weekly lessons (equating to the 50 hours per annum sought in the application) are recommended by Ms Connell in her report. She opines that the other supports must align with the music therapy by way of collaboration to use music in other support contexts. The stated concern being that if music therapy was removed then Ms Connell states that it would be detrimental to the Applicant's social connections with others and his all over emotional well-being.
The Applicant submitted that the provision of music therapy is to address emotional, social and communication needs. It was submitted that the Applicant relies upon music to communicate and being non verbal has very few spoken words.. The Tribunal was raised that the Applicant puts words and phrases to songs.
The Tribunal was also advised that the Applicant uses music to address his wants and needs. Music allows the Applicant to participate and be engaged socially in his day programs and articulate his wants and needs. It was submitted that the Applicant is demonstrating these achievements thorough his limited 30 minutes a week of music therapy but requires 'the full dose' in order to reap the combined benefits of this therapy aligned with his other therapeutic treatments.
The Tribunal was advised that the family currently pay for the 30 minutes per week music therapy as it (a) is not a support that can be provided by them (Julie Brooks) as they do not possess the expertise, and (b) they are not qualified to provide the support. It is therefore not a support that the family can be expected to provide the participant / applicant.
However to the extent that they can they cover the current 30 minutes, but also in order to receive the appropriate amount of support, the application to the NDIA in respect of the Applicant's Plan with 50 further funded hours per annum, in addition to the 25 unfunded hours currently paid independently, was sought.
The Applicant advised that Ms O'Connell is a qualified music therapist being Registered with the Australia Music Therapy Association having both degrees and post graduate degrees in music.
As the Tribunal has previously observed, the NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community. This is consistent with the Charter of Rights of the Disabled where persons with disabilities should be free to choose and to the greatest extent possible be free to live a life in a manner of their own choosing.
As this review concerns a Plan and statement of participant supports rather than access, the matter as noted above is to be determined under the current law, not the law in force at the time of the decision under review. This law is set out below.
The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024(Cth) came into force on 3 October 2024, changing several provisions. The Act introduced a new section 10 regarding a definition of NDIS support and amended section 34(1)(f). These changes apply to the Applicant's Statement of Participant Supports (SOPS) and must be considered by the Tribunal. The changes apply retrospectively to Plan matters not finalised by the Tribunal at 3 October 2024 irrespective when their internal review and Tribunal matters were lodged.
As noted above at [20] Subsection 34(1) of the NDIS Act now provides changed criteria around supports. When conducting the administrative review, the Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act on order to make a finding that the requested support is a reasonable and necessary support. The Applicant carries a practical rather than a strict onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met. However the provisions are to be interpreted beneficially.
(a) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is an NDIS support for the participant.
(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and
(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).
The term 'reasonable and necessary support' is not defined in the NDIS Act. As previously observed in the case of McGarrigle v National Disability Insurance Agency[2017] FCA 308 ('McGarrigle') the following observations at [91] are relevant (applying prior to the October 2024 amendments):
Whether a support is "reasonable" requires a different assessment to whether a support is "necessary". Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports".
In addition The Full Federal Court in National Disability Insurance Agency v WRMF[2020] FCAFC 79 ('WRMF') considered the meaning of reasonable and necessary supports:
[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.[1]
Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Relevant rules in the Applicant's case include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) ('the Supports Rules').
Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary including whether they represent value for money. The Part also requires consideration as to whether the proposed supports are effective and beneficial having regard to good practice, take account of what is reasonable to expect families to provide and are most appropriately funded by the NDIS, rather than through other service systems.
Rule 3.1 concerns whether the supports requested are reasonable value for money. 3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:
(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;
>
> (b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;
>
> (c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);
>
> ...
>
> (f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care).[2]
[6]
Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:
3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:
>
> (a) published and refereed literature and any consensus of expert opinion;
>
> (b) the lived experience of the participant or their carers; or
>
> (c) anything the Agency has learnt through delivery of the NDIS.
>
> 3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.
[7]
Rule 3.4 sets out the matters to be considered when assessing what is reasonable to expect families, carers, informal networks and the community to provide under section 34(1)(e).
3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:
>
> ...
>
> (b) for other participants:
>
> (i) the extent of any risks to the wellbeing of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community; and
>
> (ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:
>
> (A) the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
>
> (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
>
> (C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and
>
> (iii) the extent to which informal supports contribute to or reduce a participant's level of independence and other outcomes;
>
> (c) for all participants - the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.
[8]
Part 5 contains criteria regarding supports and supports that will not be funded. Rules 5.1 and 5.2 provide:
5.1 A support will not be provided or funded under the NDIS if:
>
> (a) it is likely to cause harm to the participant or pose a risk to others; or
>
> (b) it is not related to the participant's disability; or
>
> (c) it duplicates other supports delivered under alternative funding through the NDIS; or
>
> (d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs.
>
> ...
[9]
The NDIS Operational Guidelines are also relevant to making decisions in accordance with the NDIS Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[3] The Operational Guideline - Reasonable and Necessary Supports (22 September 2024) states that the NDIS principles set out in law indicate that reasonable and necessary supports should:
- support you to pursue your goals and maximise your independence
- support you to live independently and to be included in the community as a fully participating citizen
- develop and support your capacity to do things that help you participate in the community and in employment.[4]
[10]
I note that the Respondent submitted during the hearing that the principle as set out in the case of Stewart as referred to above, is not relied upon by the Respondent in this case. I also note the caveat that 'sound therapy' is excluded from the NDIS supports as noted at [17] above. As it is clear that the Respondent does not press that music therapy is sound therapy for the purpose of determining whether it is or is not a NDIS support, they submit that the reasoning in Stewart does not apply.
11. At [144] of Stewart the Court observed that:
144. Mr David Stewart seeks on behalf of his son;
>
> 52 hours of personal training;
>
> 65 hours of hydrotherapy; and
>
> 45 hours per year of music therapy.
>
> 145. Again Mr Stewart relies of the recommendations of Mr Sletcher.
>
> 146. In respect of these supports the Agency makes the following submissions:
>
> Mr Sletcher is neither a personal trainer, hydro-therapist or a music therapist;
>
> The funding of personal training is prohibited pursuant to item 4(q) of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following is not a NDIS Support for the purposes of section 10 of the NDIS Act;
>
> 'general health, fitness, social or recreational activity costs or services'
>
> The funding of music therapy is prohibited pursuant to item 9 of Schedule 2 of the NDIS Supports Transitional Rules which provides that the following is not a NDIS Support for the purposes of section 10 of the NDIS Act;
>
> 'sound therapy'
In my view the support provided for the Applicant by 50 hours of funded music therapy per annum is both reasonable and necessary. Consistent with clause 34 of Schedule 1 of the Transition Rules, the support is reasonable and necessary because the evidence demonstrates that it is evidence based therapy which helps the Applicant as a participant maintain and to some extent improve his functional capacity in areas such as language and communication, mobility and movement, as well as interpersonal interactions including his participation on day programs.
Section 34 of the NDIS Act is cumulative in that all of the criteria must be enlivened. It is clear that s 34 (1) (aa) is met in that the support addresses the participants needs arising from their disability by reference to [48] above, - the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25).
Having regard to the matters above, as the cost of a funded hour per week of music therapy is an NDIS Support, it is reasonable and necessary having regard to the provisions of s 34 (1) (f) of the NDIS Act in that in this instance unlike Stewart, the therapy is not sound therapy but music therapy.
This therapy is not on the available evidence of Ms Connell a duplication of the Speech Therapy / Speech Pathology as it is tailored to different aspects of the Applicant's communication as well as developing his physical movement through gestures and gait arising from song words and gestures leading to expressive body movements. Unlike speech pathology these movement aspects arise through the music therapy as does the Applicant's behaviour regulation around music engagement noting a background of trauma.
In this context consistent with s 34 (1) (a) the support is necessary to address the Applicant's needs arising from the accepted impairment. It is clear under s 34 (1) (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 also assist the participant to undertake activities, so as to facilitate the participant's social and economic participation.
Section 34 (1) (c ) and (e ) provide that:
(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;
>
> (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;
Noting the Applicant's Plan and SOPS, the support via music therapy would assist the Applicant in pursuing his goals and enable him to undertake activities facilitating his economic and social participation. In respect of s 34 (1) (d) the support would in my view based on the various reports on file be reasonable and necessary. In addition, noting that music therapy is capped in respect of pricing under the NDIS it would appear that the therapy (noting the outcomes achieved) represents value for money and based on Ms Connell's assessment is likely to continue to be effective and beneficial for the Applicant having regard to current good practice.
As noted above the family will be making a 33% contribution to the overall costs of this therapy and I have already found that it is not therapy that the family are in a position to provide for the Applicant.
In these circumstances, the Tribunal is satisfied that the following supports are reasonable and necessary for the next 12 months and I make a finding that the following additions to the SOPS meet the s 34 requirements as reasonable and necessary support under the NDIS Act: 50 hours per annum funded music therapy.
As a result of the findings above, pursuant to s 105 (c) (ii) of the ART Act, the Tribunal will remit the matter on the discrete issue of music therapy to the Respondent for reconsideration in accordance with the orders below.
28. The Tribunal considered the operation of this section and National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (NDIS Transitional Rules 2024) in Stewart and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2024] ARTA 76. Pursuant to item 9(f) of Schedule 2 "sound therapy" has been declared, pursuant to s 10(4) of the NDIS Act, to not be an NDIS Support.