Cali v National Disability Insurance Agency [2026] FCA 135

1. On this reading, the Applicant submits that the Tribunal's decision was infected with an error of law because it misconstrued s 34(1)(d) as requiring an NDIS participant to show that a requested support "will be, or is likely to be, the most effective and beneficial [support] for the participant, having regard to current good practice", which is said to require an unjustified reading of the words "the most" into the provision. The Applicant submits that this purported misconstruction is illustrated by the Tribunal, having accepted that the Applicant's participation in LLP was beneficial, then framing "the heart of the issue" as "whether the 27 hours a week direct intervention vs a smaller quantum of hours, will provide greater benefits" to him (T [117]).
2. The Applicant submits that this, too, reveals a material error because, were it not for this alleged misconstruction, "there is (at least) a realistic possibility" that the Tribunal would have accepted that 27 hours per week satisfied s 34(1)(d), even if the Tribunal was not satisfied that 27 hours would be (or would be likely to be) more "effective and beneficial" than 12 hours per week.

1. The Respondent submits that the Applicant's case misunderstands the Tribunal's reasons which, on a proper reading, are said to reveal that the Tribunal only accepted that early intervention supports at the LLP in general were effective and beneficial for the Applicant, but concluded that more than 12 hours per week of these supports did not meet the requirements of ss 34(1)(c) and (d). Relevantly, the Respondent contends that, although Autism Partnership's fee schedule was fixed at 27 hours, the LLP is not defined as comprising 27 hours per week. This is said to have been implicitly accepted by Autism Partnership's national clinical director, Ms McKinnon, in her recommendation that the Applicant spend 25-30 hours per week at the LLP (T [113]).
2. The Respondent contends that the Applicant's submissions on Ground 1 incorrectly assume that references to the "LLP" and "early intervention supports" in the Tribunal's reasons are references to those supports being provided at 27 hours per week. The Respondent submits that this was not the case and, in fact, when the Tribunal intended to refer to the LLP at 27 hours per week it did so expressly, with its other references to the "LLP" or "early intervention supports" being references to those supports in general and not at any set number of hours. The Respondent submits that, once this is understood, the Tribunal's reasons contain no inherent inconsistencies or misconstructions of s 34(1)(d) of the kind alleged by the Applicant.
3. The Respondent also contends, contrary to the Applicant's submission as set out at paragraph 44 above, that no misconstruction regarding s 34(1)(d) can be gleaned from what the Tribunal said at T [117] because that paragraph forms part of the Tribunal's consideration of s 34(1)(c), not s 34(1)(d). In reply, the Applicant contested this contention on the basis that there had been substantial overlap between ss 34(1)(c) and (d) in the evidence and contentions before the Tribunal, such that its observations at T [117] were capable of revealing a misconstruction of s 34(1)(d), even though they appeared in the part of the reasons dealing with s 34(1)(c).

1. The Applicant submits that the only way to reconcile the Tribunal having accepted on the evidence that there were no comparable early intervention supports that could achieve the same outcomes for the Applicant as the LLP (T [110]) but nevertheless concluding that the s 34(1)(c) requirement of value for money was not met (T [122]), is if the Tribunal had construed s 34(1)(c) as requiring consideration of comparable supports regardless of whether or not they were actually available to the Applicant.
2. The Applicant submits that this misconstrues s 34(1)(c), which is said only to invite comparison between the support requested and alternative supports actually available to the NDIS participant. On this construction, the Applicant says that it was contradictory and illogical for the Tribunal to have found that s 34(1)(c) was not satisfied in circumstances where there were "no comparable early intervention supports that could achieve the same outcomes" for the Applicant (T [110]) and where the Tribunal had been "satisfied generally that [the Applicant's] participation in LLP is likely to reduce the cost of funding of supports for him in the long-term" (T [121]). Without this error, it is said, "there is (at least) a realistic possibility" that the Tribunal could have concluded that s 34(1)(c) was satisfied.

1. The Respondent submits that, read in context, the Tribunal's finding that "on the evidence, there are no comparable early intervention supports that could achieve the same outcome" for the Applicant (T [110]) was a finding in relation to the LLP generally, not specifically to the LLP at 27 hours per week, and that "the comparable support to which the requested 27 hours of ABA was compared, was in fact the LLP albeit at a lesser intensity, and therefore actually available". In the Respondent's view, the Tribunal made it plain that while it considered the LLP to be beneficial to the Applicant, it did not consider that the intensity of the LLP at 27 hours per week provided greater benefit and, therefore, value for money. As such, the Respondent argues that there was no error in the Tribunal's construction of s 34(1)(c), nor any illogicality, irrationality, or unreasonableness in the Tribunal having concluded that s 34(1)(c) was not satisfied.

1. The Tribunal's reasons are to be read as a whole, fairly and in a balanced manner. They are not to be construed "minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2; [1996] HCA 6 at [30] (Brennan CJ, Toohey, McHugh and Gummow JJ), quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287; [1993] FCA 456 at [22] (Neaves, French and Cooper JJ). Mere infelicities of language do not necessarily indicate error.
2. For clarity, I will group my consideration of the Applicant's two grounds of appeal based on the nature of the errors of law alleged against the Tribunal's decision, namely:

(a) whether the Tribunal's conclusions in respect of ss 34(1)(d) and/or (c) were so illogical, irrational or unreasonable as to constitute an error of law (being Grounds 1(a) and 2(a) in the Applicant's Notice of Appeal, respectively); and

(b) whether the Tribunal's conclusions were based on a misconstruction of ss 34(1)(d) and/or (c) (being Grounds 1(b) and 2(b) in the Notice of Appeal, respectively).

Grounds 1(a) and 2(a): Did the Tribunal reach logically contradictory conclusions?

1. On a fair and balanced reading of the Tribunal's reasoning, it is clear that the Tribunal was aware that the Applicant had been attending LLP for 27 hours of ABA per week and accepted that he had made progress, particularly in the communication domain. The Tribunal accepted - and the Respondent also accepted - that ABA was beneficial for the Applicant. The critical issue for the Tribunal was whether 27 hours of ABA per week met the statutory criteria (T [117]). As set out above, the Tribunal reasoned carefully, and clearly, to its conclusion that the evidence did not support a conclusion that 27 hours of ABA per week would deliver benefits to the Applicant that would not be achieved by a lower intensity of therapy (the 12 hours per week supported by Dr Pincus and the Respondent).
2. The Applicant contends that the Tribunal's conclusions in relation to both s 34(1)(d) and s 34(1)(c) involve logically contradictory conclusions. Neither contention can be accepted.

1. The first alleged contradiction is between T [130] and T [141]. For ease of reference, I note that the two paragraphs are as follows (emphasis added):
   1. I accept [the Applicant's] parents lived experience evidence, as understandably they want the best for their child. I am satisfied that the balance of opinions suggest that LLP should be considered effective and beneficial for [the Applicant]. I consider there is consensus between Dr Pincus, Dr Marks, and Ms McKinnon that [the Applicant] is progressing in the communication domain.

...

1. On the totality of the evidence, I am not satisfied that 27 hours per week at LLP will be effective and beneficial for [the Applicant]. As the Tribunal must be satisfied of all of the six requirements in ss 34(1)(aa)-(f), I find that 27 hours of direct therapy per week is not a reasonable and necessary support for [the Applicant].

1. What is patent from a fair, and non-pedantic, reading of the Tribunal's reasons is that it:

(a) accepted that the Applicant had benefited from the early intervention therapy (ABA) he received by his attendance at the LLP;

(b) accepted that the Applicant's parents had not been able to find another suitable program for the Applicant that had a vacancy; but

(c) was not satisfied that 27 hours of ABA per week was a support that:

(i) represented "value for money" in the sense of the costs being reasonable, relative to both the benefits achieved and the cost of alternative support (so not satisfying s 34(1)(c)); and

(ii) was, or was likely to be, "effective and beneficial" for the Applicant, having regard to current good practice (so not satisfying s 34(1)(d)).

1. Paragraph 130 of the Tribunal's reasons goes no further than accepting that the ABA therapy the Applicant had been receiving through the LLP was effective and beneficial. It did not embed any implied acceptance that it was the specific 27-hour "dosage" of that therapy that rendered it effective and beneficial for the Applicant. While some other, and earlier, parts of the Tribunal's reasons describe the LLP as a 27-hour program, it would be an unduly pedantic and unbalanced reading of the Tribunal's reasons to constrain the conclusion at T [130] and read it as a conclusion expressed specifically and only in respect of the full 27 hours.
2. The Applicant contends that, because the parties referred to the LLP as a 27-hour program in their respective Statements of Facts, Issues and Contentions (SFICs), any reference in the Tribunal's reasons to the LLP should be read as a reference to a 27-hour-per-week program. Even assuming the premise concerning the SFICs to be correct, the Tribunal's reasons simply cannot fairly be read as the Applicant contends. In any event, the stated premise is incorrect. The Respondent's SFIC clearly identified the requested supports in terms of hours of therapy, while acknowledging that the Applicant's parents were seeking funding for the LLP.
3. There is, then, no tension between the Tribunal's conclusion at T [130], that "LLP should be considered effective and beneficial for [the Applicant]", and its further conclusion at T [141] that it was not satisfied that "27 hours per week at LLP will be effective and beneficial for [the Applicant]". As I have set out at length above, the latter conclusion followed the Tribunal's detailed analysis of the expert evidence and literature which, it concluded, supported a conclusion that 12 hours per week of intensive early intervention therapy was a reasonable and necessary support. Accordingly, I reject the contention that the Tribunal's conclusion involved an error of law on the basis that the Tribunal reached "two logically contradictory conclusions".

Section 34(1)(c): T [110], [121] and T [122]

1. The Applicant contends that the Tribunal's conclusion at T [122] involved a logical contradiction with its findings at T [110] and T [121]. For ease of reference, those paragraphs are in the following terms:
   1. I accept on the evidence that there are no comparable early intervention supports that could achieve the same outcomes for [the Applicant].

...

1. While I am satisfied generally that [the Applicant's] participation in LLP is likely to reduce the cost of funding of supports for him in the long-term, I have not been satisfied on the evidence that 27 hours a week will provide greater benefits to [the Applicant].
2. The requirement of value for money in s 34(1)(c) has not been met.

1. The Tribunal's conclusion at T [110] related to the parents' evidence that the LLP was the only program that responded and had a place for the Applicant, the evidence regarding the transition to kindergarten or daycare, and then school in 2026, the fact that, with only six months remaining in 2025, "comparable support for [the Applicant] is not likely to become available", and the Applicant's aversion to change in his routine (T [104]-[108]).
2. Read in context, the Tribunal's finding at T [110] goes no further than accepting that there were no other comparable early intervention supports that could achieve the same outcome for the Applicant as ABA through the LLP. However, the finding of the Tribunal concerned ABA through the LLP generally, rather than accessing ABA through the LLP for 27 hours per week specifically. Nor is there anything embedded in the Tribunal's conclusion at T [110], or stated elsewhere in its reasons, suggesting that the LLP was only offered on the basis that 27 hours per week of ABA be provided (ie, that the LLP was an "all or nothing" program).
3. Rather, and as the Respondent noted, the Tribunal drew attention to the fact that Ms McKinnon's evidence was that, upon intake, the Applicant's parents were "seeking more intensive supports" and that her "recommendation of hours" was based on her "clinical reasoning and judgment factoring in parental preferences and [the Applicant's] individual circumstances" (T [113]). The fee schedule before the Tribunal set out the "Recommendations" made in respect of the Applicant, which included 27 hours per week of ABA as well as other supports, some of which were not in fact provided (T [66]). The Tribunal acknowledged (T [142]) that funding for only 12 hours of ABA per week would require the Applicant's parents to face a choice of whether to "make up the shortfall and continue to send [the Applicant] to LLP, or to provide care when he is not attending the program", the "program" being the LLP (T [142]).
4. It is, in my view, clear that the Tribunal proceeded on the basis that the LLP was a program through which the Applicant could obtain ABA at a lower intensity - measured by hours per week - than the 27 hours per week he had been attending for. It was not suggested on appeal that it was not open to the Tribunal to proceed on this basis. I also note that the Tribunal had before it a "transition plan" prepared by Ms McKinnon, which was referred to in the Applicant's SFIC (at [44]), recommending that the Applicant progressively step down his attendance at "centre-based" care, with the balance between that care setting and kindergarten increasing as he progressed.
5. Similarly, the Tribunal's acceptance (at T [121]) that the Applicant's "participation in LLP" was likely to reduce the cost of funding of supports for him in the long-term, was a conclusion regarding the Applicant accessing ABA through that program. Read fairly, it was not a conclusion that it was the Applicant's attendance at the LLP for 27 hours per week that was likely to reduce the cost of funding supports for him in the long term.
6. Once T [110] and the first part of T [121] are read fairly and in context, the conclusion expressed by the Tribunal at T [122] is entirely logical. Accordingly, I reject the contention that the Tribunal's reasoning in this respect was so illogical, irrational or unreasonable as to constitute an error of law.

Grounds 1(b) and 2(b): Did the Tribunal misconstrue ss 34(1)(c) or (d)?

1. The Applicant's central contention is that, if the Tribunal's reasons are not to be read as he suggests they ought to, but are to be read on the basis that the Tribunal was not satisfied that 27 hours per week was more effective and beneficial than 12 hours per week, its reasoning is infected by an error of law. The error of law is said to arise on the basis that the Tribunal construed s 34(1)(d) as requiring an NDIS participant to show that the requested support "will be, or is likely to be, the most effective and beneficial [support] for the participant, having regard to current good practice" (emphasis in the Applicant's written submissions). The Applicant contends that the Tribunal impermissibly read words into s 34(1)(d), and that the construction ought to be rejected as it would require an NDIS participant to surmount a "high hurdle of having to canvass and assess other alternative supports and show that they are less 'effective and beneficial' than the support sought".
2. I do not accept that the Tribunal construed s 34(1)(d) in the manner for which the Applicant contends. Section 34(1)(d), as amplified by rr 3.2 and 3.3 of the Support Rules, required the Tribunal to be positively satisfied that the support sought will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice, and considering the available evidence, including published and refereed literature, lived experience evidence, and expert evidence, among other things.
3. As set out above, the Tribunal set out and considered all of these matters. The focus of the Tribunal's analysis was whether a higher level of intensity of ABA would deliver benefits over and above the benefits of ABA at a lower level of intensity. The Tribunal's conclusion that the support sought - namely, 27 hours of ABA per week - did not satisfy s 34(1)(d) was based on its conclusion that the evidence before it, including the literature and expert evidence, satisfied it that 12 hours per week of intensive early intervention therapy would be effective and beneficial, whereas 27 hours per week would not be.
4. For the Tribunal to analyse intensity in this way, and reach the conclusion that it did, did not involve the Tribunal requiring the Applicant to establish that 27 hours of ABA per week was more beneficial and effective than any other support. The Tribunal's approach also did not entail reading words into s 34(1)(d) so as to impose on the Applicant the burden of showing that 27 hours of ABA per week was "the most" effective and beneficial support in existence.
5. Section 34(1)(d) and the related Support Rules not only invite, but require, consideration of evidence about the effectiveness of the support for others, including by reference to the literature and expert evidence. The Tribunal conducted the required exercise in a way that involved analysing the evidence and literature which, on its assessment, did not support a conclusion that the support sought - being 27 hours of ABA per week - was effective and beneficial in the requisite sense. Assessing the efficacy and benefit of the support sought in an integrated way, taking into consideration the efficacy and benefit of ABA at a lower level of intensity, did not involve the Tribunal misconstruing s 34(1)(d) in the manner for which the Applicant contended.
6. The outcome is the same whether or not one has regard to T [117] as part of the Tribunal's analysis on s 34(1)(d), even though (as the Respondent correctly identified) that paragraph falls under the Tribunal's analysis of s 34(1)(c) (see paragraphs 44 and 48 above). That paragraph just provides a different way of expressing the enquiry about intensity conducted expressly in relation to s 34(1)(d), which I have found not to involve a misconstruction of s 34(1)(d).

1. The Applicant's central contention that T [110] and T [122] can only be reconciled if the Tribunal was construing s 34(1)(c) as requiring consideration of comparable supports, whether or not they were available to the Applicant.
2. The Tribunal's conclusion at T [110] is to be read and understood in its fuller context, as set out above at paragraphs 62-63 above. The basis upon which the Applicant considers the Tribunal's reasoning to involve the misconstruction of s 34(1)(c) that he has identified, is not entirely clear from the Applicant's written and oral submissions.
3. Were there to have been a finding that ABA was only available to the Applicant through the LLP on the basis of 27 hours per week - the "take it or leave it" position - then one could appreciate why it might be thought that the Tribunal's course of reasoning would involve a comparison between an available support (27 hours of ABA per week) with an unavailable support (12 hours of ABA per week). However, as set out above at paragraphs 62-67, there is no such factual finding. On the contrary, and although there is no express finding that the LLP program could be accessed with a lower number of hours of ABA per week, the Tribunal's reasoning proceeds on the basis that ABA could be obtained through the LLP at a lower intensity. That conclusion was open to the Tribunal on the evidence before it, such as it was, and no contention was mounted in this Court that the Tribunal's reasoning involved an error of law on the basis that it was not open to the Tribunal to proceed on the basis that ABA could be accessed through the LLP at a lower intensity.

1. The appeal will be dismissed. The Respondent stated expressly that, in the event the appeal is dismissed, it does not seek costs.

I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Button.