Castledine and National Disability Insurance Agency [2019] AATA 4240 (16 October 2019)

1. 143 hours of therapeutic intervention per annum to be provided by a speech therapist and/or occupational therapist in accordance with the directions of the Applicant's clinical practice leader;
2. 160.5 hours of practice coaching per annum to be provided to the Applicant's support staff by a registered psychologist in accordance with the directions of the Applicant's clinical practice leader;
3. 110 hours of "behavioural support planning, support, monitoring and reporting" per annum to be provided by a positive behaviour support practitioner who is a registered psychologist in accordance with the directions of the Applicant's clinical practice leader;
4. transport costs for the actual kilometres travelled by Mr Castledine by private vehicle for all journeys to and from Ms Castledine's residence to the unit provided to Mr Castledine by the Victorian Department of Health and Human Services (DHHS Unit) or to or from the DHHS Unit to places in the community, on any day of the week, to be calculated on the basis of the rate per kilometre prescribed by the Australian Taxation Office from time to time for the purpose of calculating an individual's tax deductions relating to travel in a private vehicle;
5. all of the supports listed in the statement of participant supports forming part of the Applicant's current NDIS plan that commenced on 23 June 2019, to the extent that those supports have not already been provided for by the approval of the supports referred to in paragraphs 1, 2, 3 and 4 above; and
6. the review date of the statement of participant supports is extended to 22 June 2020.

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

NATIONAL DISABILITY INSURANCE SCHEME - review of statement of participant supports - participant with multiple serious and permanent medical conditions - participant has intense and complex support needs - multidisciplinary therapy - practice coaching for support staff - concerns raised about self-management of plan and direct employment of support staff - dispute about the number of hours of speech therapy, occupational therapy and practice coaching required - provision of therapy assistants as an alternative support - method of calculation of transport supports - treatment of successive NDIS plans - decision under review set aside and substituted with decision to approve a new statement of participant supports - extension of review date in statement of participant supports

Disability Act 2006 (Vic)

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)

Re Ewin and National Disability Insurance Agency [2018] AATA 4726

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Re Williamson and National Disability Insurance Agency [2019] AATA 2944

NDIA Practice Guide - Intensive Super Intensive Participants - Guidance for Planners, LACs and delegates (latest version approved on 13 September 2017)

Social, Community, Home Care and Disability Services Industry Award 2010

1. Mr Jake Castledine is a man in his late twenties with a number of severe disabilities.[1] He has been diagnosed by his treating medical practitioners with the following:
   • (a) severe intellectual disability;
   • (b) attention deficit hyperactivity disorder (ADHD);
   • (c) autism spectrum disorder (ASD);
   • (d) uncontrollable epilepsy; and
   • (e) bipolar affective disorder (BPD).
2. Mr Castledine is also suspected to be suffering from Post Stress Traumatic Disorder (PTSD) arising from an incident in 2012 when he was badly beaten with a shoe by an employee from a day program that he previously attended.
3. Mr Castledine's need for ongoing support is multi-faceted, extensive and complex. He has extremely limited verbal communication skills and has been described as exhibiting significant behaviours of concern.[2] He has a dedicated and caring mother, Ms Janice Castledine, who has assisted him to the extent that she is able, in light of her demanding full-time work and post-graduate study commitments. Mr Castledine also has a father (no longer partnered with Ms Castledine) and an adult brother. Ms Castledine's evidence was that Mr Castledine's father provides minimal day-to-day care for (or assistance to) Mr Castledine and that this situation is unlikely to change.
4. Mr Castledine lives part-time in a unit in a suburb of Melbourne provided on a temporary basis by the Victorian Department of Health and Human Services (DHHS Unit) and for the remainder of the time, he lives with his mother. Ms Castledine has indicated that one of the objectives for Mr Castledine is that he makes a full transition to independent living.

Commencement as a participant of the National Disability Insurance Scheme

1. In September 2016 Mr Castledine became a participant of the National Disability Insurance Scheme (NDIS) established under the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). He has received funding for various supports approved by the National Disability Insurance Agency (NDIA), as set out in statements of participant supports forming part of his successive NDIS plans since 2016.
2. With the approval of the NDIA, most of the supports under Mr Castledine's successive NDIS plans have been self-managed by Ms Castledine, who is Mr Castledine's nominee under the NDIS Act. Under this self-management arrangement, Ms Castledine directly employs a team of support staff who provide daily care for Mr Castledine both at the DHHS Unit and in her home. Ms Castledine also arranges for Mr Castledine to receive speech, occupational and behavioural support therapies and the services of a practice coach for his support staff.

1. On 5 October 2016, a delegate of the CEO of the NDIA (CEO) wrote to Mr Castledine and notified him that his "NDIS plan has been approved", attaching a copy of the plan and advising the start date for this plan was 28 September 2016 (First Plan).[3] This letter records the decision of the delegate of the CEO as follows:

To make this decision, I have considered the information you supplied to the [NDIA] and the information that we discussed during our conversations. I am satisfied that the supports specified in the plan are reasonable and necessary in accordance with section 34 of the [NDIS Act].

You have requested that the funding for supports that are included in your plan be wholly self-managed. To assess your request, I am required to consider whether self-managing the funding for supports would present an unreasonable risk to you.

Taking into account the information I have available, I have decided to approve your request to self-manage the funding in your NDIS plan.

1. The total funding approved by the NDIA for supports under the First Plan was $382,545 over a 12-month period. This funding was approved in the following support areas:[4]
   • (a) assistive technology, $1,600;
   • (b) improved daily living, $54,469.18 for:

training and support for staff 10 hours week (practice coach)

individual assessment, therapy and/or training staff 12 hours a month

(c) increased social and community participation, $2,000;

(d) support coordination, $37,220.84;

(e) transport, $2,472 expressed as a contribution towards any transport-related costs; and

(f) core supports, $284,782.98 described as follows:

Funding for your continence products including delivery.

assistance with self-care - overnight - higher intensity 168 hrs per year, to maintain informal support

assistance with self-care activities during daytime weekdays - higher intensity 20 hrs per week

assistance with self-care activities - high intensity composite 504 hrs per year, to maintain informal support

ass to access community, social/rec acts - indiv higher intensity -Sundays 3 hrs a week

ass to access community, social/rec acts - high Intensity composite 35 hrs a week

ass to access community, social/rec acts - standard composite 35hrs a week.

1. On 19 December 2016, Ms Castledine, as nominee for Mr Castledine, signed an NDIA form entitled, "Requesting a Plan Review form". The completed form indicates that Mr Castledine's support coordinator at the time assisted with its completion.
2. At the top of this form, it states:

You may request a review of your NDIS participant plan at any time. If you wish to request a review of your plan, you must complete this form and return it to: NDIA [postal address].

The Agency will decide whether or not to conduct a review within 14 days of receiving your request and notify you of the decision in writing.

1. Ms Castledine (assisted by the support coordinator) stated as follows on the second page of this form under the heading, "Please explain what has changed in your life that affects your plan":

Areas that require an immediate review of Jake's NDIA plan

Jake's plan is insufficient to meet his required needs to ensure a suitable and sustainable support structure.

Short Term Accommodation

There is no allowance for short term accommodation in Jake's current NDIS Plan. Jake has been receiving monthly respite through St John of God since age 10. Without the provision of appropriate short term accommodation options Jake's current living arrangements will not be sustainable.

Daily Living

The current daily living is incorrectly funded at the individual therapy rate due to the multiple therapies involved in Jake's care. This needs to be reviewed and funded as a Multidisciplinary Team to support the appropriate interventions and management.

Dietician

Planning meeting conducted ... is missing a number of significant items including funding for a Dietician to manage Jake's anorexia...

Overnight in-home care for 2 nights per week to support Janice Castledine maintain her own health and wellbeing.

Operational Requirements of his program

The significant underfunding of the operational requirements of the individualised day program...

Transport

[Funding for a vehicle for safe transportation to and from the day program and community access]

Recruitment campaign

[single occurrence][paid professional recruitment to build a team of qualified and dedicated staff that will support the pursuit of Jake's goals].

1. The Tribunal considers that the appropriate characterisation of the submission to the NDIA by Ms Castledine of this completed form is that it constituted a request by her for the CEO to conduct a review of Mr Castledine's plan under s 48 of the NDIS Act. Specifically, s 48 provides as follows:
   • (1) A participant may request that the CEO conduct a review of the participant's plan at any time.
2. Section 48(2) of the NDIS Act provides that the CEO must conduct the review within 14 days of receiving such a request. This did not occur in Mr Castledine's case. Consequently, by operation of s 48(2) of the NDIS Act, the CEO is taken to have decided not to conduct a review of Mr Castledine's plan.
3. Section 99(f) of the NDIS Act specifies that a decision under s 48(2) not to review a participant's plan is a "reviewable decision".
4. Section 100(5)(a) of the NDIS Act provides that if the CEO is taken to have made a reviewable decision because of s 48(2), the CEO must cause the reviewable decision to be reviewed by a person (a "reviewer") who was not involved in making the reviewable decision and who has received an appropriate delegation to exercise the CEO's powers under s 100.
5. In Ms Castledine's case, a delegate of the NDIA proceeded to undertake an internal review of the deemed decision by the CEO not to review Mr Castledine's plan. This review was undertaken under s 100(5)(a) of the NDIS Act by a "reviewer" as defined in that provision. Specifically, an "internal review meeting" took place on 14 February 2017. This meeting resulted in the following decision being made by the reviewer.

1. On 27 April 2017 the reviewer made a decision that was recorded in a letter dated 9 May 2017.[5] The Tribunal notes that in the first paragraph of this letter the reviewer appears to have mischaracterised the request that was made by Ms Castledine. The reviewer stated that Ms Castledine (and Mr Castledine) had requested a review of the NDIA's decision on 28 September 2016. This is incorrect. While the end result is closely linked, the proper characterisation of the request that had been made by Ms Castledine was for a review to be undertaken of Mr Castledine's plan under s 48 of the NDIA Act, as addressed above in paragraphs [12] to [16].
2. Despite that initial mischaracterisation, the reviewer then referred (in her letter dated 9 May 2017), to the provisions under s 48 and acknowledged that the CEO was taken to have decided not to review Mr Castledine's plan, which lead to the internal review meeting on 14 February 2017. The reviewer stated in her letter dated 9 May 2017 as follows:[6]

Following an internal review meeting at [address] on the 14th February 2017 where Jake's support coordinator was present, I have made an internal review decision on the 27th April 2017 resulting in the current 6 month plan being approved on that date.

1. The reviewer described the "outcome" of her decision as:[7]
   • (a) having "changed decisions made in the previous plan related to the areas" which included an "increase" to "consumables funding", "support for capacity building - daily activities" and "supports for capacity building - relationships" (as detailed in paragraph [20]);
   • (b) deciding "not to change the following decisions made on the previous plan" in relation to "short term accommodation and in-home respite"; capacity building supports - the requests for an intensive multidisciplinary team and a dietitian; and the provision of a "vehicle" and ongoing maintenance costs; and
   • (c) determining that "no decision about additional funding for program management and administration (such as business operating costs) was required" (on the basis that those costs were already included in the plan as they formed part of the pricing unit costs.
2. In relation to paragraph [19(a)], the reviewer described the changes she had d[8]cided to make as follows:8
   • (a) increasing the level of funding for a continence package from $1,200 per 12 months to $4,720 per six months;
   • (b) increasing support for capacity building (daily activities), inclusive of:
     • (i) a "therapy line item for a practice coach (previously charged at the therapy assistant rate)"; and
     • (ii) four hours for a continence nurse to undertake an assessment;
   • (c) increasing support for capacity building (relationships), inclusive of "specialist behavioural intervention and behavioural management training (stated support/agency managed) to address behaviours of concerns and to develop and implement a behaviour support plan (BSP)".
3. Under the heading "Rationale for Decisions", the reviewer then undertook an analysis of whether certain supports were reasonable and necessary applying the criteria specified in s 34 of the NDIS Act.[9]
4. Although the reviewer did not expressly say so, it is implicit that she had set aside the decision the CEO was taken to have made by operation of s 48(2) being "a decision not to review" Mr Castledine's plan and substituted it with a decision to review the plan. The reviewer proceeded to undertake the review of Mr Castledine's plan and made the decision referred to in paragraphs [18] to [20].
5. Section 49 of the NDIS Act provides as follows:

If the CEO conducts a review of a participant's plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.

Note 1: If the participant does not wish to change the participant's statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.

Note 2: Because the new plan is prepared in accordance with the Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under paragraph 99(d).

1. By making the decision as referred to in paragraphs [18] to [20], in effect, the reviewer approved a new statement of participant supports for Mr Castledine (Decision Under Review).

1. In accordance with s 49 of the NDIS Act, the NDIA facilitated the preparation of a new (six-month) plan for Mr Castledine with a commencement date of 27 April 2017, incorporating the new statement of participant supports approved by the reviewer referred to in paragraph [24] ([10]cond Plan).10
2. The statement of participant supports forming part of the Second Plan approved funding for the following relevant supports for Mr Castledine (totalling $267,436.81 over a six-month period):
   • (a) Assistive technology: $800 for a seizure mat and alarm;
   • (b) Improved daily living: $64,500.87, which included (among other things):
     • (iii) 12 hours per month of "therapist support"; and
     • (iv) 10 hours per week of "Practice Coach support";
   • (c) Improved relationships support funding of $11,305.50 including the "Stated Support" of 45 hours of "specialist behavioural intervention supports" and 15 hours of "behaviour management planning/training in behaviour management strategies";
   • (d) Increased social and community participation: $1,000;
   • (e) Support coordination funding of $37,220.84;
   • (f) Transport funding of $1,236.00; and
   • (g) Core supports of $151,373.60, described as including:

Flexible core support to enable maximum independence in personal activities of daily living are included within this category. These supports can be provided in a range of environments, including but not limited to, the participant's own home and short term accommodation service.

In addition, supports to explore and participate in community based activities (including day program) and supports to access community and civic participation.

History of application for review before this Tribunal

1. On 8 June 2017, Ms Castledine lodged an application on behalf of Mr Castledine seeking review by this Tribunal of the Decision Under Review (being the decision of the reviewer to approve the new statement of participant supports which formed part of Mr Castledine's Second Plan).
2. As is not uncommon in applications made in this Division of the Tribunal, the position of both parties altered significantly, before, during and after the hearing of this application as to which supports were in dispute, and to what extent.
3. On 14 July 2017 the NDIA lodged a set of documents pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents).
4. This application was initially listed to be heard over three days from 18 to 20 December 2017 inclusive.
5. On 8 December 2017, i.e. 10 days before the hearing was due to commence, the NDIA lodged with the Tribunal and served on Mr Castledine's representatives a Statement of Position (NDIA's SOP). Subsequently, on 13 December 2017, the NDIA lodged a further set of documents pursuant to its obligations under s 38 of the AAT Act (ST-Documents). On 14 December 2017, i.e. four days before the hearing was due to commence, Mr Castledine's representatives lodged with the Tribunal and served on the NDIA:
   • (a) Mr Castledine's Statement of Position (Mr Castledine's SOP);
   • (b) documentary evidence comprising 19 annexures to the SOP, the first of which was a key document upon which Mr Castledine sought to be rely, being a 97-page Behavioural Assessment Report (BAR) dated 20 November 2017 prepared by Ms Killmier and two other consultants from Guidestar; and
   • (c) two witness statements upon which Mr Castledine sought to rely.
6. Mr Castledine's SOP identified the following as "live issues" in the review:[11]
   • (a) Whether the Plan should include multidisciplinary integrated positive behaviour supports of 472 hours in the order of
     • - 63 hours of Occupational Therapy (incorporates direct therapy, staff training through attendance at quarterly staff meetings and quarterly multidisciplinary team meetings and progress report)
     • - 99 hours of speech therapy (incorporates direct therapy, staff training through attendance at quarterly staff meetings and quarterly multidisciplinary team meetings and progress report)
     • - 110 hours of Behavioural Support Intervention (development and implementation of a final behaviour support plan, staff training, attendance at multidisciplinary team meetings and progress report) - not in dispute
     • - 200 hours of practice coaching
   • (b) Transport Assistance of $19,500
7. At the commencement of the hearing, counsel for the NDIA confirmed that there were four issues in dispute between the parties, being whether the following additional supports should be provided to Mr Castledine under the NDIS, namely:[12]
   • (a) 63 hours of occupational therapy;
   • (b) 99 hours of speech therapy;
   • (c) 200 hours of practice coaching; and
   • (d) transport assistance (requested in the form of payment as an annual allowance of $19,500).
8. The hearing was unable to be concluded over the three allocated hearing days in December 2017. This was partly because it was identified at the commencement of the hearing that it was appropriate that two of Mr Castledine's current therapists should be called to give evidence about the expert reports authored by them, and upon which Mr Castledine sought to rely in support of his application.[13] The Tribunal was informed by Mr Castledine's representatives at the hearing that one of those therapists was overseas at the time of the hearing. The hearing was adjourned and resumed on a fourth and final day on 21 February 2018, so that arrangements could be made for those two therapists to give evidence.
9. The following witnesses were called by Mr Castledine's representatives to give evidence at the hearing (in chronological order):
   • (a) Ms Susan Fowler, previous occupational therapist;
   • (b) Ms Victoria Zainal, previous speech therapist;
   • (c) Ms Helen Killmier, current supervising psychologist and CEO of Guidestar Life Pty Ltd (Guidestar);
   • (d) Ms Heather Lambert, current disability support worker/team leader;
   • (e) Ms Janice Castledine;
   • (f) Ms Hannah Cohen, current occupational therapist; and
   • (g) Ms Julie Greiner, current speech therapist.
10. The NDIA called Ms Meg Parsons, Branch Manager, National Technical Advisory & Complaints Branch, NDIA, as a witness to give evidence at the hearing.

1. A further (12-month) NDIS plan for Mr Castledine commenced operation on 18 December 2017 (Third Plan) and replaced the Second Plan.[14]
2. In the Third Plan total supports in the sum of $657,457.97 over a 12-month period were approved for Mr Castledine, including:
   • (a) $565,000 in the support area of "core supports" (including for "daily activities" described as "flexible supports to enable maximum independence in personal activities of daily living. The supports can be provided in a range of environments, including but not limited to, the participant's own home");
   • (b) $27,000 in the support area of "improved daily living" for "allied health supports" to "explore a number of changes in Jake's transition to independent living"; and
   • (c) $35,000 in the support area of "improved relationships" for the provision of services by a specialist psychologist.
3. Counsel for the NDIA clarified at the hearing that the funding provided under paragraphs [38(b)] and [38(c)] amounted to $62,000, which she said reflected the NDIA's proposal in Annexure A.

1. On the last day of the hearing on 21 February 2018, Ms Parsons gave evidence about her view (and by extension, the NDIA's view), about the role of a positive behaviour support (PBS) practitioner in the present setting concerning Mr Castledine's supports. Ms Parsons said:[15]

So the positive behaviour support practitioner...comes in, they know the complexity of the participant through an assessment tool that we're trialling at the moment as well and they get a budget of supports and then they will be the ones that are designing the positive behaviour support and the utilisation of those supports, whether it be by therapists, training for staff, monitoring, planning and review and then if they find that part of the way through that planning - like, the plan and the implementation of the plan, for whatever reason, is not enough supports, they come back, plan review, we adjust it according to the evidence.

1. The Tribunal also notes Ms Parsons' further evidence at the hearing:[16]

What Guidestar needed to do, they were giving a comment on practice coaching in isolation - not in an integrated package of support where they are clear about what their role is and isn't and I think that is again one of the complexities that we've got here. Everyone is putting their quotes and comments in, in isolation. In an integrated model of support we would know exactly what Guidestar's function is. We would also know whether the positive behaviour support practitioner - and I know everyone is reporting benefit of the practice coaching, that's really good, but again, that needs to be linked to the positive behaviour support practitioner and their goals and what the outcomes are - not in isolation.

1. In consideration of this evidence, the Tribunal directed the parties, jointly, to write to Ms Killmier, in her proposed role as the clinical practice leader of the multidisciplinary (MDT) therapeutic supports to be provided to Mr Castledine, seeking "her recommendation as to the total number of hours of therapeutic intervention (including a breakdown of her calculations) that she considers is reasonable and necessary for Mr Castledine over the next 12 months".[17] The directions provided liberty to either party to request that Ms Killmier be recalled as a witness once her recommendations were received. Directions were made for the lodgement of closing submissions in the event that no such application was made.[18]
2. Ms Killmier provided her response to this request by an email sent to the parties on 9 March 2018 as follows:

...

I have sought advice through the Australian Psychological Society's legal hotline regarding this request.

I have two issues to raise regarding the matter:

1. I am not a qualified Occupational Therapist or Speech Pathologist and therefore do not believe that I am qualified to offer any opinion regarding the number of hours of intervention required, other than to endorse the recommendations already made by these professionals.
2. I believe that I face an ethical dilemma in providing an opinion or recommendation that is likely to be irrelevant given that Mr Castledine's circumstances have changed due to hospitalisation as a result of a medical condition.

Please advise whether my written opinion is still required in light of the concerns raised above.

Ms Killmier's reference to Mr Castledine's change in circumstances prompted those matters being bought to the attention of the Tribunal

1. The Tribunal recalls that toward the end of the final day of the hearing on 21 February 2018, Mr Castledine's representative informed the Tribunal as follows:[19]

Just as very brief context, unfortunately Jake had an epileptic - suspected epileptic stroke overnight and he is in hospital waiting for marrow to be taken and Janice hasn't slept overnight and she's quite affected. Struggling to engage with us and - - -

MEMBER: Have you been to the hospital a bit earlier today?

MS CASTLEDINE: I haven't had any sleep. We've been awake since 6 o'clock yesterday.

MEMBER: I'm sorry to hear that.

1. Ms Killmier's "9 March 2018" letter referred to a change in respect of Mr Castledine's circumstances (see paragraph [43] of these Reasons for Decision), and specifically, that he had been hospitalised. Upon receipt of Ms Killmier's letter, the NDIA wrote to the Tribunal on 19 March 2019 indicating that the NDIA had received an update from Mr Castledine's legal representatives regarding Mr Castledine's condition and hospitalisation. The NDIA stated that it expected Mr Castledine's change in circumstances to impact on the supports that he would require in the immediate future and going forward, in particular, over the following six months.
2. The NDIA contended that it was necessary for the Tribunal to be made aware of the extent of the change in Mr Castledine's circumstances on the basis that it may be necessary for the Tribunal to determine the "utility of continuing with proceedings". The NDIA proposed that directions be made by the Tribunal requiring Mr Castledine's representatives to provide an update and to allow the NDIA to respond. The NDIA contended that that it was appropriate that the existing directions requiring the parties to lodge closing submissions be held in abeyance until the Tribunal decided how the matter was to proceed.
3. Prompted by the NDIA's correspondence referred to in paragraph [45], on 20 March 2018 Mr Castledine's representatives wrote to the Tribunal to confirm that:
   • (a) their understanding was that Mr Castledine had suffered a stroke on or around the last day of the hearing, attributable to an arteriovenous malformation stated to be inoperable;
   • (b) it was not initially clear whether Mr Castledine would survive although he did - however, there was still a question of how much function he could regain;
   • (c) Mr Castledine remained in a medical setting;
   • (d) there was no anticipated date of discharge from "hospital/rehabilitation" and no clear indication of "what Jake's level of function will look like at that time";
   • (e) Mr Castledine's exact nature and extent of future disability needs were unknown and were not likely to be known for "several weeks, or indeed months"; and
   • (f) once Mr Castledine's condition was stabilised, he was likely to make an application for review of his current NDIS plan on the basis of the change of circumstances.
4. Despite those matters, Mr Castledine's representative pressed for the lodgement of closing submissions in the substantive application and suggested that this Tribunal could proceed on the basis of the evidence of the facts as known as at conclusion of the hearing. Mr Castledine's representatives undertook to provide a further update to the Tribunal "as soon as we know more".

Application held in abeyance while Mr Castledine recovered from a stroke

1. On 23 March 2018, the Tribunal informed the parties that it considered that the change in Mr Castledine's circumstances had great significance to the findings it needed to make. There was uncertainty about the level of Mr Castledine's functionality, which had been significantly impaired by these events. Consequently, the Tribunal vacated the directions for lodgement of closing submissions and the application was listed for a Telephone Directions Hearing on 17 September 2018. The Tribunal indicated that a resumed hearing would take place once Mr Castledine's condition had stabilised. Liberty was given to the parties to request an earlier directions hearing, if Mr Castledine's condition became stable before 17 September 2018. The Tribunal identified the further evidence and submissions it would require from the parties before any resumed hearing in this matter could proceed.
2. No request was made by either party for the Telephone Directions Hearing to take place prior to 17 September 2018 and it proceeded on this day.

Further directions hearing on 17 September 2018 to ascertain Mr Castledine's status

1. Three days before the Telephone Directions Hearing on 17 September 2018, Mr Castledine's representatives sent a joint report prepared by his current occupational and speech therapists (Ms Cohen and Ms Greiner) to the Tribunal (Ms Cohen's and Ms Greiner's Joint Report). This report was issued three months earlier and provided an update in relation to Mr Castledine's condition and post-stroke functionality as at 12 June 2018, as follows:

Jake is independent and mobile with nil aids.

He is safe and independent with all transfers.

Jake's right hand is more curled in its relaxed grasp position and he requires support to open his hand and practice full range of motion.

It has been reported that Jake is more fatigued.

Jake has experienced a number of seizures since returning to his usual day program - this usually occurs if he is over exerted.

Seizure length has been longer than usual - Janice following up with neurologist.

Communication skills have returned to pre-stroke capacity.

Jake's support team were not able to remain available for shifts during the unknow[n] periods without work. This has meant that there has been a significant change in Jake's support team. This has also meant that more of a focus in therapy sessions has been aimed at training new support workers, and educating the team about changes in Jake's circumstances. This includes - changes in functional abilities, communication style, endurance, fatigue, consistency in rapport.

1. The Tribunal was informed by Mr Castledine's representatives at this Telephone Directions Hearing that Mr Castledine's condition had stabilised and his disability support needs were substantially the same as they were before he had suffered the stroke. This was confirmed by Mr Castledine's current therapists in Ms Cohen's and Ms Greiner's Joint Report stating that:[20]

Jake's current presentation is similar to his pre-stroke level [o]f function; however if he is experiencing higher levels of fatigue as a result of reduced endurance caused by his stroke; this can impact on a broad range of his day to day activities. This also impacts on the level of support Jake requires on each day. Jake's capacity and support needs can fluctuate day to day.

However, in general; Jake has been able to participate in most activities that he was doing pre-stroke, with increased monitoring for signs of fatigue and tailored participation...

1. Consequently, and by consent, further directions were made for the lodgement of written closing submissions by both parties in relation to the substantive application. Liberty to apply was provided in the event that Mr Castledine's circumstances changed again before the publication of the Tribunal's decision.
2. Mr Castledine's closing submissions were lodged on 25 October 2018 (Mr Castledine's Closing Submissions). The NDIA lodged its closing submissions on 19 November 2018 (NDIA's Closing Submissions). Mr Castledine's reply to the NDIA's Closing Submissions was lodged on 23 November 2018 (Mr Castledine's Reply).

1. At the request of the Tribunal, on 6 August 2019 the NDIA provided Mr Castledine's more recent NDIS plans containing subsequent statements of participant supports approved by the CEO (or his or her delegate) on 24 December 2018 and 23 June 2019 (Fourth Plan and Fifth Plan respectively).
2. The Tribunal notes that the approved statement of participant supports forming part of the Fourth Plan approved total funding of $696,748.81 for Mr Castledine's supports over a 12-month period commencing on 19 December 2018, comprising:
   • (a) Total Core Supports funding of $1,397.08 for "transport" and $640,237.97 for self-managed "core supports";
   • (b) Capacity Building Supports funding of $54,513.76 comprising:
     • (i) $14,084.96 Improved Daily Living described as:

Allied health supports are to explore a number of changes in Jake's transition into independent living. Jake will require a multidisciplinary approach that is guided by specialist psychology. Allied health intervention is to be goal oriented and will aim to enhance emotional self-regulation, reduced physical aggression and promote positive community connections and development to mainstream supports. Allied health is to also explore the new environmental needs at Willis Street. Allied health is to progress towards Jake's goal of independent living. A comprehensive transition plan is to be developed.

(ii) $18,500.00 for Improved Relationships described as:

Specialist Psychology to guide and develop the care support team and allied health professionals. Specialist psychology to ensure governance of the supports and are personalised to Jake, ensure sufficient staff knowledge and ongoing development in support strategies, facilitate accurate behavioural data tracking. Further ecological and environmental assessments will be required with the transition to independent living for Jake. Specialised psychology support services are to work closely with the chosen specialist support coordinator to ensure effective development and implementation of new plan, and the recommendations made in the Guidestar [BAR]. All reports and data is to be collated and sent to the NDIS prior to the next review.

(iii) $21,928.80 (NDIA-managed) for specialist Support Coordination;

(c) $600 for Assistive Technology.

1. The Tribunal notes that the approved statement of participant supports forming part of the Fifth Plan (currently in force) approved total funding for Mr Castledine's supports over a 12-month period commencing on 23 June 2019 in the sum of $1,174,523.67, comprising:
   • (a) Total Core Supports funding of $1,078,722.15 comprising $2,676.00 for "Transport" and $1,076,046.15 for "Core Supports" (self-managed) including:
     • (i) Consumables;
     • (ii) Daily Activities. 2:1 support for 24 hours per day, 7 days per week, with the specified purpose of aiding Mr Castledine's transition to the DHHS Unit and future Special Disability Accommodation once sourced. The plan states that this support has been provided on the basis that the level of 2:1 support provided was for "this plan period only" and would reduce in the next plan;
     • (iii) Social Community and Civic participation;
   • (b) Capacity Building Supports funding of $95,201.52 comprising:
     • (i) $33,104.64 funding for Improved Daily Living (self-managed), which includes allied health supports adopting a "multidisciplinary approach that is guided by specialist psychology". The plan states that a comprehensive transition plan is to be developed and a "micro-board" established to assist in decision-making processes. This funding is described as "once-off funding" that will "facilitate a process that will run voluntarily without the need for further funding beyond Specialist support coordination in future plans";
     • (ii) $28,838.20 funding for Improved Relationship (self-managed) described as a "Level 2 Behaviour Intervention Support Package to include 80 hours of specialist behaviour intervention support, 70 hours of behaviour management plan, in training in behaviour management strategies";
     • (iii) $33,258.68 for Support Coordination (self-managed)(specified as a Stated Support meaning that it cannot be swapped for any other support(s)), described as:

Specialist support coordination is to address barriers and reduce the complexities of the participant environment. Connect Jake with multiple complex supports needs including but not limited to a multidisciplinary allied health team, practice coaching and diversional therapy. Specialist support coordination to also build capacity of informal supports to coordinate and self-implement plan.

(c) NDIA-managed Capital Supports funding comprising $600 for Assistive Technology and further unspecified funding (because a quote is required) for the Stated Support of specialist disability accommodation that aims to support Mr Castledine's needs.

1. In Mr Castledine's Closing Submissions, which the Tribunal notes were lodged prior to commencement of the Fourth and Fifth Plans, he requested the following supports:
   • (a) 63 hours of occupational therapy (based on the recommendation made by Ms Cohen) which would include fortnightly sessions with Mr Castledine and his support staff (comprising one-hour face-to-face sessions and 30 minute fortnightly video reflections, attendance at quarterly support team meetings and training and attendance at the quarterly MDT meetings);[21]
   • (b) 80 hours of speech therapy (based on the recommendations made by Ms Greiner which would include weekly 1.5-hour sessions with Mr Castledine and his support staff, attendance at quarterly support team meetings and training and attendance at the quarterly MDT meetings);[22]
   • (c) the "cost of travel associated with above therapies";
   • (d) 179 hours of practice coaching (comprising 152 hours for "day staff" and 27 hours for "weekend staff");[23] and
   • (e) "transport funded to the value of $10,829".[24]
2. The NDIA confirmed, in its closing submissions (also pre-dating the Fourth and Fifth Plans), that its "reassessment", having considered all of the material before the Tribunal, as to how best meet Mr Castledine's needs remained the same as set out in "Annexure A to the Statement of Meg Parsons" (Annexure A).[25]
3. In Annexure A, the NDIA proposed that the following supports be provided to Mr Castledine (requiring total funding of $61,711.40) comprising:
   • (a) $17,557 (100 hours x $175.57) for "therapy/assessments" for speech, occupational and sensory therapy, to be used flexibly as determined by Mr Castledine's needs and progress;
   • (b) $4,171 (100 hours x $41.71) for "therapy assistant" to support the implementation of the therapeutic interventions, to develop aids and for supporting or training staff;
   • (c) $21,085.40 (comprising $5,369.40 (30 hours x $178.98) plus $7,858.00 (40 hours x $196.45) plus $7,858.00 (40 hours x $196.45)) for BSP support, monitoring and reporting to include development of comprehensive BSP and analysis, review and implementation of BSP and reporting of outcomes against goals;
   • (d) $4,295.52 (24 hours x $178.98) for staff and carer training "over and above employer responsibility" for "training in BSP and strategies";
   • (e) $13,602.48 (76 hours x $178.98) for "practice coach/support team coordination (group therapy)" to support staff and carers at meetings (group supervision) and "maintenance of staff team over and above typical employer obligations";
   • (f) $1,000 - transport for therapy.
4. At the hearing, counsel for the NDIA clarified that the above supports of $61,711.40 were proposed to be provided to Mr Castledine in place of (and not "in addition to", as had been stated in the NDIA's SOP), the $54,000[26] which had been approved under the heading "improved daily living" support area of the statement of participant supports for Mr Castledine which was the subject of this review (i.e. forming part of the Second Plan).[27]
5. The NDIA contended that the "correct and preferable statement of participant supports should approve the following":[28]
   • (a) the funding outlined in Annexure A (Integrated PBS) inclusive of transport costs (up to 20 minutes per trip), including:
     • (i) 100 hours for multidisciplinary team interventions;
     • (ii) 100 hours for therapy assistants;
     • (iii) 110 hours for behavioural support planning;
     • (iv) 76 hours for practice coaching; and
     • (v) 24 hours for staff and carer training;
   • (b) Participant transport costs to the value of $9,441.12.
6. The NDIA stated that it appeared there was agreement between the parties that the most appropriate way to deliver supports to Mr Castledine was through greater collaboration between, and coordination of, his various therapists and support workers. The NDIA contended that there had been past inconsistencies "between therapists" and "between weekdays and weekends", presenting a risk of creating anxiety and distress for Mr Castledine; and that instead, "a consistent, simplified approach to the provision of therapies and supports is desirable" in order to maximise the benefits to Mr Castledine and to minimise his "behaviours of concern".[29]
7. The NDIA also confirmed there was agreement that Guidestar, a disability service provider, should take a leading role in the provision of Mr Castledine's supports by setting goals and amounts of therapeutic interventions, training and practice coaching from the budget in the plan, after consultation with Mr Castledine, his therapists, support workers and family. The NDIA contended that this centralised approach would reduce unnecessary repetition and achieve the greatest value for money. This aligned with Ms Castledine's view as to how the supports should be coordinated and provided to her son.
8. The NDIA contended that the issue in this application was confined to the amount of funding that should be approved to facilitate Mr Castledine's plan. At the hearing, the NDIA did not dispute Mr Castledine's need to receive occupational therapy and speech therapy but rather, it took issue with how many hours were required.[30] Likewise, in relation to the provision of practice coaching, the parties were unable to agree as to the total number of practice coaching hours required by Mr Castledine; and the NDIA expressed its "overarching concern on our part about how those therapists will be working with one another and with the other number of people that are working in Jake's team".[31]
9. The NDIA stated that the first option was for the Tribunal to accept the level of funding that had been recommended by Ms Parsons as set out in paragraph [62] of these Reasons for Decision, or the second option was to accept the level of funding recommended (separately, but taken together) of Ms Cohen and Ms&[32]Greiner.32
10. The NDIA contended the recommendation of Ms Parsons should be accepted because:

Ms Parsons adopts an approach based upon what is considered best practice, advocating for an interdisciplinary approach to Jake's support where "the group of professionals from diverse fields work in a coordinated fashion toward a common goal for Jake". In her opinion, a funding model overseen by a qualified positive behavioural support practitioner (i.e. Guidestar) provides flexibility in administering the plan, directing funds to where they are best used after the coordination of Jake's supports have been worked out. If increases in funding are needed, there is scope for a review in future. On the other hand, as developed below, the recommendations of Ms Cohen and Ms Greiner are neither coordinated nor integrated. The recommendations, therefore, have the potential to contain inefficiencies (including 'doubling up') and to replicate past failures.

1. Mr Castledine's response to the NDIA's stated position was captured in paragraph [33] of his Closing Submissions, where it was contended that:

The Agency's position in this proceeding involves a premature and dramatic reduction/removal of key support planks for this Applicant (i.e. 144 therapy hours reduced to 100 hours, 520 hours of Practice Coaching support cut down to 76 hours). The Applicant submits that the Agency's position should be rejected as it undermines the clinical efficacy of the integrated model of supports. It forces the therapists and other professionals directly involved in the care of Jake to substantially modify and compromise their strategies and implementation with a negative flow on effect on Jake and his well-being.

1. In relation to the provision of transport supports for Mr Castledine, Ms Castledine confirmed that Mr Castledine was no longer seeking the provision of a vehicle (including ongoing maintenance costs). Instead, Ms Castledine said he sought reimbursement for the cost of travelling by his own private vehicle for a specified number of kilometres per annum for his travel each morning and afternoon between the DHHS Unit and his family home and for day trips to and from the DHHS Unit.
2. At the commencement of the hearing, the NDIA initially took issue with the mileage that had been claimed by Mr Castledine. Counsel for the NDIA acknowledged that it was mindful of the approach in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle); and the NDIA accepted that once it was identified that there was a need for a transport support, it was to be fully funded. The NDIA also indicated at the hearing that it did not take issue with Mr Castledine's need to use a private car for transport, rather than public transport or third party vehicles, accepting that the latter option was not feasible, given Mr Castledine's difficulties when exiting a car.[33]
3. At the commencement of the hearing, counsel for the NDIA described the transport issue as follows:[34]

There are two issues, it seems to me, looking at the statements of position, one being - it doesn't seem to me we're actually very far apart in what we see as the relevant legal analysis. The question from us is: (1) how much of this travel is really directly connected to Jake's disability and how much something else; and then the second issue is what hourly rate really should be applied - sorry, I mean kilometre rate - should it be the 66 cents or should it be the 77 cents; and what is the underlying idea behind that.

1. However, as the hearing progressed and more evidence was adduced by Ms Castledine about this subject, either at the request of the NDIA or the Tribunal, including log books maintained by Ms Castledine and explanations about the day trips taken by Mr Castledine, the NDIA's position softened and the NDIA accepted that travel costs arising from the journeys particularised by Ms Castledine (upon which the proposed annual mileage figure was calculated) were reasonable and necessary supports for Mr Castledine. Consequently, by the end of the hearing, the issue in relation to the transport supports became confined to the issue of what was an appropriate rate per km at which Mr Castledine's travel costs should be calculated.

1. By the end of the hearing, it was common ground between the parties that:
   • (a) better coordination was required of the various therapeutic and carer supports provided to Mr Castledine on a day-to-day basis;
   • (b) the delivery of those supports should be led (in the clinical sense) by a suitably qualified PBS practitioner, which they agreed should be Guidestar, or more specifically, Mr Castledine's supervising psychologist Ms Killmier;
   • (c) Mr Castledine requires ongoing therapeutic support by an occupational therapist and speech therapist;
   • (d) the various therapeutic and support carer interventions should be delivered in accordance with a BSP tailored to Mr Castledine's needs; and
   • (e) that Mr Castledine should be provided with funding as a support for his disability-related travel costs.
2. However, the parties did not agree as to the appropriate level of funding that should be approved for the various therapeutic interventions, practice coaching and in relation to the rate that Mr Castledine's agreed disability-related transport costs should be calculated.

1. At the conclusion of the hearing, the issues remaining between the parties requiring determination by this Tribunal were:
   • (a) how many hours of therapeutic intervention is a reasonable and necessary support for Mr Castledine, and how the funding for those supports should be structured;
   • (b) how many hours of practice coaching is a reasonable and necessary support for Mr Castledine and how the funding for this support should be structured; and
   • (c) whether Mr Castledine should receive funding for his travel costs and if so, how that funding should be calculated.

1. The Tribunal is required to determine those issues in the context of reviewing the statement of participant supports (forming part of Mr Castledine's Second Plan), being the subject of the Decision Under Review. As mentioned above, the Second Plan has been superseded by three other consecutive NDIS plans. This raises an issue about the extent to which the Tribunal has jurisdiction to make a decision (and final orders) which will have the effect of covering supports that should be provided to Mr Castledine beyond the date upon which the Second Plan ceased to have effect as a result of it being replaced by the Third Plan (and subsequent NDIS plans).
2. When this issue was discussed at the hearing, the NDIA gave an undertaking that, in effect, it would apply or incorporate any findings made by the Tribunal about reasonable and necessary supports for Mr Castledine into his current plan. The NDIA is to be commended for its preparedness to adopt a pragmatic approach to this issue.
3. The Tribunal has closely considered the provisions of the NDIS Act as they relate to the jurisdictional question about the extent of the Tribunal's powers in cases where the NDIS plan containing the statement of participant supports under review had been superseded by successive NDIS plans for the participant.
4. This Tribunal proposes to adopt the same approach to this jurisdictional issue arising in Mr Castledine's application, as it has adopted previously in another NDIS case of Re Ewin and National Disability Insurance Agency [2018] AATA 4726 (Ewin). This Tribunal interprets the provisions of the NDIS Act relevant to this jurisdictional issue as stated in paragraphs [280] to [318] of the Reasons for Decision in Ewin. For the sake of brevity, the Tribunal will not reproduce those paragraphs in these Reasons for Decision but adopts those reasons in this application by reference to the Ewin decision.[35] In summary, this Tribunal holds the view that:
   • (a) it has the power to set aside a decision by a reviewer to approve a statement of participant supports forming part of a plan, and in substitution, to make a decision to approve a new statement of supports for an NDIS participant and such decision may be ordered by the Tribunal to come into effect on a day specified by the Tribunal;
   • (b) it has the power to extend the review date in the statement of participant supports and may, if it considers it appropriate in the circumstances of the application before it, extend the review date beyond the review date nominated in the original statement of participant supports which was the subject of the review; and
   • (c) if such a decision is made and in light of the matters set out in this paragraph, for the reasons stated by this Tribunal in paragraphs [280] to [318] of the Reasons for Decision in Ewin, a new plan will come into effect for Mr Castledine by force of s 37(1) of the NDIS Act.
5. Section 37(1) provides as follows:

A participant's plan comes into effect when the CEO has:

(a) received the participant's statement of goals and aspirations from the participant; and

(b) approved the statement of participant supports.

1. In relation to s 37(1)(a), the Tribunal notes that a statement of goals and aspirations has been provided by Mr Castledine. At the present time, Mr Castledine's goals and aspirations have been described by Ms Castledine as follows:[36]

Short-term goals

To become more independent within everyday life, including over the next 12 months. Whilst strengthening my relationships with my family and the community.

To be safe in the community and improve the quality of my community access while building meaningful volunteer and work opportunities.

Medium or long-term goals

To make a wide circle of friends who share my interests.

To have support to make decisions in my life through voluntary circles or Boards.

I would like to move to a modified robust property that meets my complex support needs to build independence and opportunity to live with people other than my parents.

Self-management arrangement - not an issue for determination

1. At the hearing the NDIA raised a number of concerns about the effectiveness of the coordination of Mr Castledine's various supports and therapies under the current self-management arrangements. Those concerns seemed to have been prompted by the observations of Guidestar made in the BAR issued in November 2017.
2. Mr Castledine's representatives contended that the NDIA had unduly focussed on this issue at the hearing and had been critical of Ms Castledine's management of her son's supports. Ms Castledine contended that the NDIA in doing so, had failed to acknowledge that there were "no viable alternatives" to self-management because she said that: (a) 14 different "day program" services had refused to accept Mr Castledine as a client due to his complex needs and behaviours of concern; and (b) there were significant gaps in the markets in the provision of specialised support coordination and disability support workers capable of caring for participants like Mr Castledine.[37]
3. While it was apparent that Ms Castledine had been doing her best to manage the funding under her son's successive NDIS plans and that she was clearly dedicated to providing ongoing care and assistance to him to the extent she was able, the NDIA's stated concerns about the effectiveness of the current self-management arrangements, or at least, the direct employment arrangements in respect of the support staff in place, resonated to some degree with the Tribunal given the limited time Ms Castledine's has (given her onerous work and study commitments), to attend to the responsibilities of optimally managing the funding and provision of extensive supports to Mr Castledine under his NDIS plans.
4. On the other hand, the NDIA's concerns were raised in the context of it having already expressly given its approval for self-management of Mr Castledine's NDIS funding when the Second Plan came into effect. Further, the NDIA continued to approve self-management of most supports in Mr Castledine's subsequent statements of participant supports in his successive NDIS plans.
5. In essence, the NDIA was suggesting, at a general level at least, that an external agency should be identified and engaged by Mr Castledine and such agency will, in turn, employ the team of support carers to provide support to Mr Castledine, instead of the current arrangements where they are employed directly by Ms Castledine under the current self-management arrangements. However, the NDIA agitated this issue in the absence of any specific alternatives being put forward by it. The NDIA did not provide any meaningful response to Ms Castledine's claim that no other day program service would accept her son or with her challenges to date in finding a suitable external agency.
6. Ultimately, it was not clear to the Tribunal that the NDIA was formally contending that the Tribunal should change this part of Mr Castledine's approved statement of participant supports forming part of his Second Plan. In fact, the NDIA closing submissions lodged after the hearing did not press for the Tribunal to change the current self-management arrangement in Mr Castledine's statement of participant supports. Had it done so, the Tribunal considers that it would have had jurisdiction to determine this issue because s 33(2)(d) of the NDIS Act provides that "the management of the funding for support under the plan (see also Division 3)" forms part of the statement of participant supports.
7. However, the Tribunal considers the issue of whether Mr Castledine's funds under the NDIS should be self-managed, while raised as a concern, was not an issue that had been put before it by the NDIA for determination as part of this application. The Tribunal notes that after the hearing in this application it subsequently approved the continuation of the self-management arrangement for the purpose of the implementation of the Fourth and Fifth Plans. The NDIA is at liberty to consider whether it will continue to approve the current self-management arrangement presently in place when it is next required to review Mr Castledine's plan.

Therapists' travel time - not an issue for determination (liberty to apply)

1. An issue was initially raised about whether funding should be approved in Mr Castledine's statement of participant supports in respect of payment to therapists for their travel time to and from therapy appointments with Mr Castledine and his carers. The Tribunal does not propose to make any determination about this issue. The Tribunal's understanding at present is that the fee structure that applies to NDIS-registered providers when charging for the provision of therapeutic services under the NDIS is governed by the NDIS Price Guide published on the NDIA website (as it is varied from time to time). The NDIS Price Guide sets out a maximum hourly rate that can be charged for the provision of therapy to NDIS participants and also sets out the arrangements in place to apply for the payment of travel time by therapists.
2. It may be that therapists who apply to become registered NDIS providers are required to agree to certain terms and conditions for the provision of services to an NDIS participant as set out under the NDIS Price Guide as a condition of registration. However, the Tribunal was not presented with any probative evidence, other than the NDIS Price Guide, which would allow it to closely examine this issue**.** For instance, there was no evidence before the Tribunal setting out any agreements in place between the relevant therapists as registered NDIS providers and the NDIA entered into as part of the usual registration process.
3. If the parties wish to press this issue further, the Tribunal provides either party with liberty to apply and directions will be made for the filing of further evidence that is required to determine this discrete issue.

1. The NDIS was established under the NDIS Act and operates in pursuit of the objects set out in s 3 of the NDIS Act. Section 4 of the NDIS Act establishes general principles guiding actions to be taken under the NDIS Act. Persons with disabilities may apply to become a participant in the scheme, subject to certain eligibility requirements.
2. A NDIS participant's plan is prepared in accordance with the NDIS Act and regulations made under s 32A of the NDIS Act. The supports described in the plan (in a statement of participant supports), must be approved in accordance with the NDIS Act and regulations made under it.
3. Section 31 of the NDIS Act establishes a set of general principles that apply to the "preparation, review and replacement" of a NDIS participant's plan, as reproduced below. These principles have been taken into account by the Tribunal.

31 Principles relating to plans

The preparation, review 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

(d) where possible, 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.

1. Section 31 of the NDIS Act sets out a number of principles that apply in the development of an 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 under the scheme that governs what funding the participant is entitled to receive in respect of the supports referrable to the period of the plan. Each plan must have in it an approved statement of supports and, in fact, a plan does not take effect until a statement of supports forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act.
2. Section 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 statement of participant supports, which is prepared with the participant and approved by the CEO (or his or her delegate) in accordance with s 33(2).
3. Section 33(5) of the NDIS Act requires that the CEO (or his or her delegate), in deciding whether or not to approve the statement of participant supports under s 33(2), must;
   • (a) have regard to the participant's statement of goals and aspirations;
   • (b) have regard to relevant assessments conducted in relation to the participant;
   • (c) be satisfied as mentioned in s 34 of the NDIS Act in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided;
   • (d) apply any methods and have regard to any criteria prescribed by the NDIS rules in relation to the manner in which the reasonable and necessary supports will be funded;
   • (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.
4. Section 34(1) of the NDIS Act provides as follows (emphasis added):

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 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.

1. Section 35 of the NDIS Act allows for NDIS rules to prescribe a method for assessing, or the criteria for deciding, the reasonable and necessary supports or general supports that will be funded or provided,[38] or for declaring particular reasonable and necessary supports or general supports that will or will not be provided or funded, either generally or for prescribed participants.[39]
2. Rules have been prescribed and are in force, namely, the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) (Support Rules). Section 33(5)(d) of the NDIS Act requires that those Support Rules be applied in the making of a decision to approve a statement of participant supports.
3. The Tribunal also notes the observations of Mortimer J in McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) at [43] as follows:

The rules are legislative instruments to be made by the Minister: see s 209. Section 209, sub-paras (4) and (7) constrain the rule-making power to preserve the federal characteristics of the NDIS. The [Support 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.

1. Schedule 1 of the Support Rules requires the CEO of the NDIA to have regard to certain matters in reaching a state of satisfaction with respect to s 34(1)(f) of the NDIS Act; namely that supports are most appropriately funded or provided under the NDIS.
2. Section 37(2) of the NDIS Act provides that a participant's plan cannot be varied after it comes into effect, but it can be replaced under Division 4 of the NDIS Act. Section 37(3) provides that the plan ceases to be in effect when it is replaced by another plan under Division 4 or when the participant ceases to be a participant, whichever occurs first.

EVIDENCE IN SUPPORT OF MR CASTLEDINE'S POSITION

1. Ms Castledine gave evidence at the hearing and by her witness statement signed on 20 December 2017 (Ms Castledine's Statement).[40]
2. At the hearing, Ms Castledine told the Tribunal that she was employed on a full-time basis as an Economist for the Reserve Bank. At the moment she said was on a study break and was in the process of completing a PhD in Economics. She told the Tribunal she had completed a Masters in Economics and had studied part time in addition to her full-time employment, although she said she taken study breaks leading up to exams.[41]
3. It is evident that Ms Castledine is a busy person with limited time to dedicate to supporting Mr Castledine's support staff in her role as their employer under the present self-management arrangement under Mr Castledine's NDIS plan.
4. Ms Castledine told the Tribunal that she had looked for an alternative to the current arrangement but had not been able to find another organisation to take over. Ms Castledine told the Tribunal that:[42]

My greatest fear is that my son, who has a very heavy traumatic past, will be sat in the corner and do nothing and that is my fear.

1. Ms Castledine gave evidence that she was open to moving to a model of registering "JDC Support", being the trading name used to employ Mr Castledine's support staff, as a disability service provider and bringing on a shared governance model (through a "micro board"). However, she said she had sought funding for a "micro board" but this had been refused, so she did not consider that moving to this model could happen unless funding for it was included in the plan. The Tribunal notes that some funding has now been provided for this purpose in the Fifth Plan.
2. Ms Castledine also said that other organisations did not have staff members who were sufficiently skilled to care for Mr Castledine. Ms Castledine said:[43]

Part of the service coordination is to keep looking and enquiring and finding out where these services are and as the NDIA is developing, develop the framework that intensive support is needed for people like my son. And at the moment it doesn't exist.

1. Ms Castledine told the Tribunal that her involvement with her son's program or his day was "very minimal" because there were key people supporting the infrastructure needed. She said she did not do the book-keeping (payroll) any longer. Ms Castledine did not accept that there was a conflict of interest in her fulfilling the role of overseeing the service provision to Mr Castledine and being his mother. She said she could take her "mum" hat off when involved in the overarching program; her input into programming was minimal; and that she was only overseeing what was already in place.[44]
2. Ms Castledine told the Tribunal that Melbourne City Mission (MCM) was currently providing support coordination services for them. When asked about MCM's role, Ms Castledine described it as follows:

They provide for us the coordination of - it's been quite complex in the fact that they have not fully understood the role and that's an issue that we've had within the industry, so it's not just for me, it's widely. So they were brought on board to provide service provision for Jake to consolidate - sorry - therapy to consolidate any issues that I have such as Office of Public Housing issues around the house that may be going on. They have supported us through meetings and they've come to various meetings for her. The whole role of that is to bring the services together in a cohesive manner to - but I don't do that and I haven't been doing it. That's their role.

1. Ms Castledine said she mainly met with the support coordinator from MCM by telephone or email. She said that the support coordinator had met Mr Castledine previously.[45] Ms Castledine gave evidence that she had not received assistance from the support coordinator to try to find a registered provider who could be appointed to provide support services to Mr Castledine. There was evidence that in the second half of 2017, it was decided to switch to a different provider to provide support coordination services for Mr Castledine. This took place in early 2018.[46]
2. In her Statement, Ms Castledine addressed issues of practice coaching, the multidisciplinary team arrangement, the updated service proposal provided by Guidestar, the transition of Mr Castledine to independent living, and transport support. She also provided a history of the supports provided to Mr Castledine under his previous Victorian DHHS individual support plan (ISP) before him becoming a participant of the NDIS.
3. Specifically, Ms Castledine stated that Mr Castledine was previously provided with 10 hours per week of practice coaching and 144 hours of therapy per annum under the ISP.[47] Ms Castledine explained that at a NDIS planning session in July 2016, the funding required for a practice coach was incorrectly costed by the NDIA at the rate of $55 per hour instead of approximately $175 per hour. As a consequence, she said that only funding for three hours per week for practice coaching was provided to Mr Castledine. Ms Castledine stated that Mr Castledine's team "suffered immensely during this time and remained basically unsupported" with practice coaching as "little could be achieved" with access to funding for only three hours per week.[48]
4. Ms Castledine stated that the level of funding was restored by the NDIA in February 2017 to allow for 10 hours per week of practice coaching for Mr Castledine. She also stated that in about September 2017, a "Transitional Behaviour Support Plan" was "secured" and a practice coach, Ms Michelle Corr, from Guidestar commenced visiting the DHHS Unit for two-hour sessions each week to implement the transitional BSP (working with two other staff).[49]
5. In light of that history, Ms Castledine expressed her "serious concern" that the NDIA, at the time of making her witness statement, had proposed to reduce the practice coaching funding to 76 hours per annum (which was equivalent to less than 1.5 hours per week).[50] In doing so, Ms Castledine acknowledged that the role of (support) team leader had become "much more professionally resourced" since Ms Lambert had filled this position, albeit that she considered the internal capacity building of the "JDC support staff" was "still happening and is a long process".[51] Ms Castledine considered that such reduction in funding for practice coaching would place the safety and well-being of Mr Castledine and his support carers "at serious risk".[52]
6. On the second day of the hearing, in answer to questions from the Tribunal, Ms Castledine gave evidence that when the occupational therapist and speech therapist attended upon Mr Castledine for their sessions with him; he was often not in the "green zone" which would enable them to work directly with him. Ms Castledine explained that when this occurred the therapists would spend their session time working with the staff members who were present. When asked whether Ms Castledine considered this to be the same as "reflective practices", she said it was not. Ms Castledine described it as "building of the actual discipline itself of, you know, teaching the staff. That discipline of OT and speech pathology".[53]
7. Ms Castledine stated that she considered Guidestar's proposal to provide 200 hours of practice coaching would be "a more appropriate and balanced level of professional support to an emerging team dealing with the very challenging task of supporting Jake on a daily basis".[54]
8. Ms Castledine said in her statement that engaging a speech therapist and occupational therapist from the same service provider, SCOPE, in 2016 allowed for the work of this multidisciplinary team to be coordinated. She said that she had always envisaged that "practice coaching and MDT work would remain separate" so the two functions would not hinder the each other, but instead work "in a collaborative and cohesive model".[55]
9. Ms Castledine gave evidence that she had "guided" Ms Cohen and Ms Greiner in relation to how many hours she thought would be relevant for a team meeting and for attendance at a MDT meeting (three hours for each).[56]
10. During cross-examination Ms Castledine was asked whether she had reconsidered her request for 200 hours of practice coaching, given that Ms Killmier had given evidence to the effect that this support was expected to taper off over time. Ms Castledine said that while she accepted that his might be an ultimate goal of practice coaching, the role of practice was, "facilitating staff capacity, diffusing and debriefing and reflective practice". She referred the Tribunal to a report that formed the basis of the funding that was provided to Mr Castledine for practice coaching under the previous ISP. This was a report by Sole Consulting in 2013 which stated that:[57]

Incidences of self injury and aggression can have a profound effect on the staff capacity to implement support plans. A positive unit culture and a focus on [a] person's centeredness also requires systems to support staff maintain the capacity, behaviour support, principles highlight the need for effective diffusing and debriefing supports. A specified protocol around incident diffusing is recommended. A formal debriefing session should be routinely available to staff. It is also acknowledged that incident activated debriefing as a strategy on its own commonly wanes over time. Services for clients such as Jake could utilise an augmented system of regular operational debriefing to best achieve the aims of such and issues.

1. Ms Castledine stated that it had become obvious to her and SCOPE that a new positive BSP needed to be developed for Mr Castledine. Ms Castledine stated that in February 2017 the NDIA approved funding to the development of a BSP (which ultimately provided Mr Castledine with access to funding for 45 hours over a six-month period).[58] However, Ms Castledine stated that SCOPE had provided a quotation proposing 574 hours over a 12-month period to undertake "a complete functional analysis with finalisation of" a BSP for Mr Castledine.[59] Ms Castledine stated that work on the BSP was unable to be commenced because there was no funding available for SCOPE to start the "functional behaviour assessment" that needed to be carried out first.[60] Ms Castledine explained that her relationship with SCOPE subsequently "broke down" as there was no movement on the approval of SCOPE's quotation.[61]
2. Ms Castledine stated that she utilised the allocated funding of 12 hours per month therapy support to "try to hold the MDT team together", but that "it became impossible" as there were not enough hours to support the therapy sessions and the MDT meetings, which required the presence of the psychologist, occupational therapist and speech therapist and (support) team leader.[62]
3. Ms Castledine stated that by July 2017 the MDT meetings ceased. She said individual therapy provided by the occupational therapist and the speech therapist continued at the DHHS Unit, but those therapists were not reporting to one another about "outcomes and possible interventions and strategies"; and there was no communication established with the practice coach (which at that time was transitioning from Life Assist to Guidestar).[63]
4. Ms Castledine stated that she subsequently "withdrew the service from SCOPE".[64] Ms Castledine considered that:[65]

Therapists working in isolation simply does not work for Jake and his support staff. There needs to be a fully functioning multi-disciplinary team and a coherent, cohesive framework where both the Practice Coach and the MDT would be able to share critical information and expertise on managing Jake's complex needs, build up the collective knowledge with the aim of empowering him and his support staff proactively.

1. Ms Castledine stated that using Guidestar for practice coaching and BSP development made sense to her because Guidestar had extensive expertise and was already working with Mr Castledine and able to pick up where SCOPE had left off.[66] Ms Castledine referred to some small but significant gains that had been made in the months prior to making her statement. She sought acknowledgment by the NDIA and the Tribunal that there was a need for ongoing funding support to consolidate those gains, so that long term benefits could flow to Mr Castledine.[67]
2. When comparing the Fourth and Fifth Plans (which came into existence after Ms Castledine made her statement), the Tribunal notes that the level of total funded supports to be provided to Mr Castledine increased significantly from $696,748.81 (under the Fourth Plan) to $1,174,523.67 (under the Fifth Plan).
3. In her statement, Ms Castledine referred to Guidestar's recommendation that it be engaged for 60 hours to develop the finalised BSP for Mr Castledine; 50 hours to implement the BSP; and 20 hours for "relevant reporting". Ms Castledine acknowledged in her statement that this was "broadly comparable" with the proposal by the NDIA to provide an allocation of 110 hours.[68]
4. Ms Castledine stated that the therapists from SCOPE were no longer able to provide services to Mr Castledine and that she had engaged Ms Cohen, occupational therapist, and Ms Greiner, speech therapist, from Everyday Independence, a therapy organisation, to take on those roles in the next year, i.e. 2018.[69] Mr Castledine stated that she had relied on their recommendations that Mr Castledine required 63 hours of occupational therapy support and 99 hours of speech pathology support (which included attendance at quarterly staff meetings for training and attendance at quarterly MDT meetings) to support him to reach his goals.[70]
5. Ms Castledine stated that she did not consider that any of Mr Castledine's support carers were able to take on the role of a therapy assistant and that at present, it was not an appropriate option for a therapy assistant to do the critical work of a therapist.[71] Ms Castledine acknowledged in her statement the recommendations of the two therapists and Guidestar (taken in combination), were "broadly comparable" to the proposal that had been made by the NDIA.[72]
6. Ms Castledine referred to the pending transition; at the time she made her statement, toward Mr Castledine starting to stay overnight two days per week at the DHHS Unit which she said was due to start in early 2018. Ms Castledine stressed in her statement as follows:

Jake's progress in coping with his anxiety and the ability of his carers to proactively support him responding to his internal triggers is critical for a successful transition. Intense and ongoing professional guidance by a fully functional MDT (with adequately funded therapy hours, behaviour support, staff training and practice coaching) is a fundamental plank to achieve this goal.

1. In relation to the transport support issue, Ms Castledine stated that under the previous ISP Mr Castledine had "access to $12,000 to cover operational costs and $5,000 for upgrade per year". Ms Castledine referred to Mr Castledine not being able to use public transport in a safe manner and that his access to a private vehicle also provided him with a safe haven if he became over-aroused, felt scared or overwhelmed and required reassurance.[73] Ms Castledine stated that Mr Castledine would travel an average of 25,000 kilometres per year to undertake a range of community access and day program activities which she stated estimated would cost approximately $19,500 if he were reimbursed at her suggested rate of 0.78 cents per kilometre.[74]
2. Ms Castledine gave evidence at the hearing that there were four support workers employed directly to care for Mr Castledine and one engaged through Scope.[75]
3. Ms Castledine said Ms Heather Lambert was the team leader and was paid $38 per hour plus superannuation.[76] Ms Lambert holds a Bachelor's degree in Rehabilitation Psychology (from the University of Wisconsin, Madison in the USA), and a Certificate IV in Training and Assessment. Ms Lambert has also completed a PBS Coaches Program presented by the British Institute of Learning Disabilities. Ms Castledine said that Ms Lambert's role, as the team leader, was to use her "education and...strengths" in PBS and working with people with ASD "to be able to cascade down to our staff the practicalities around the necessity for [PBS] framework within our environment".[77]
4. The Tribunal asked Ms Castledine whether she considered it possible for Ms Lambert to be skilled up in a way that she could take on the role of or engage in the practices of a practice coach. Ms Castledine indicated there were significant staffing resource issues she was dealing with due to the departure (or pending departure) of "two integral people" which would leave a "huge void".[78] Ms Castledine accepted that if Ms Lambert had support on the ground and she was freed-up, in the long-term she would be capable of engaging in reflective practices with staff.[79]

Ms Susan Fowler's evidence - previous occupational therapist

1. Ms Fowler was called by Mr Castledine to give evidence on the first day of the hearing. Ms Fowler is an occupational therapist and provided services through Scope. Ms Fowler told the Tribunal that she had first become involved with Mr Castledine in 2011 for the purpose of "reviewing his sensory profile", and was subsequently re-engaged at the end of December 2016.[80]
2. Three reports dated 1 December 2011 (2011 report), 26 June 2017 (June 2017 report) and 22 November 2017 (November 2017 report) in respect of Mr Castledine prepared by Ms Fowler were produced to the Tribunal.[81]
3. In her 2011 report, Ms Fowler said the reason Mr Castledine had been referred to her was so she could undertake a "sensory assessment review to give people ideas for leisure, house hold and skill building activities" and "to increase Jake's participation in activities".[82]
4. In her June 2017 report, Ms Fowler stated that the occupational therapy provided to Mr Castledine had focussed on promoting his emotional regulation through "1:1 modelling", discussions with the team leader to disseminate information, team meetings and reflective feedback on interaction videos. The report referred to a significant trauma that Mr Castledine had experienced previously (the incident referred to above in paragraph [2]), which Ms Fowler considered "can affect how the brain processes information and as a consequence Jake is often operating in a fight/flight mode of ar[83]sal".83
5. Further, Ms Fowler stated that Mr Castledine's arousal levels were also higher than most people, due to his condition of autism. Ms Fowler stated in her report that:

Working on the nervous system of people who have experienced trauma takes skilled workers and an understanding of trauma. The relational work takes time as Jake needs to get to know and trust people to stay safe.

Heather Lambert is the new team leader who has also attended a PBS (Positive Behaviour Support) coaches program. Heather is modelling good practice with a PBS approach and an understanding of trauma and emotional regulation. Regular contact with the team leader, either in person or over the phone and email has enabled OT strategies to be implemented and reflected on.[84]

1. Ms Fowler outlined what needed to happen in order for a "sensory diet" to be successful. Ms Fowler stated that a "sensory diet" was a list of activities that could be used to help change a person's arousal levels in order for them to focus on skill development.[85] Ms Fowler set out her recommendations in terms of further occupational therapy that she considered Mr Castledine required at that time (in June 2017). This included recommendations that Ms Fowler provide 75 hours in total per annum of occupational therapy, and that a "local occupational therapist" attend the DHHS Unit and provide a further 149 hours[86] per annum of occupational therapy to Mr Castledine.
2. Ms Fowler stated that for Mr Castledine's support carers to develop the skills to assist him to feel safe and to want to participate in activities; those carers needed the time to reflect on interactions and to focus on extending fun interactions with him.[87]
3. In Ms Fowler's November 2017 report she made the following assessment about Mr Castledine:

An analysis of my observations showed that Jake was struggling to complete ADL in a regulated way. To illustrate, he would complete some tasks but did so demonstrating high arousal e.g. shouting, kicking doors, slamming the fridge door open and throwing objects. It appeared as if he was only complying with the task rather than learning how to do the task independently. The primary goal was to support Jake become(sic) as independent as possible. In order to achieve this it was becoming apparent that work first needed to be done on working on his arousal levels so that he was in the "just right" zone of arousal to learn.[88]

1. At the hearing, Ms Fowler gave evidence that she had been practising occupational therapy for 25 years and holds a Bachelor's degree and a Master's degree, which she attained in the United Kingdom. Ms Fowler successfully completed the National Overseas Skills Recognition exam and has been registered as an occupational therapist in Australia.[89]
2. Ms Fowler indicated that she had always worked with people with complex needs and had developed skills in sensory processing. She said she was attached to the PBS team at Scope, which has in it a speech pathologist, psychologist and an occupational therapist to provide for a holistic approach for persons with behaviours of concern.[90] Ms Fowler gave the following evidence:

So, the PBS model actually looks at all the different background factors in patching up behaviour. So, it might be communication issues, trauma, sensory processing, [and] cognitive ability. So, I mean, I suppose, we are a multidisciplinary team, because you're looking at lots of different factors impacting on behaviour.

1. At the hearing, Ms Fowler explained how she assisted support staff in the task of promoting "co-regulation", which she described as a process where a person, like Mr Castledine, who is unable to self-regulate their behaviours, will rely on another person to help them when they get upset by helping them to deal with their frustrations and to keep them safe and reassure them. Ms Fowler said she would do this by interacting with the client to show the staff and to model to them how to do it. She said she would then observe the staff and give them feedback on what worked or what they might do differently next time. She said she would write up the reflections and also get the staff to send her video footage. She would send the staff reflections on what she observed in those videos or would use those videos to provide training to the staff.[91]
2. Ms Fowler gave evidence that Mr Castledine's level of arousal is likely to depend on a number of different factors, which include:[92]
   • (a) internal factors - for instance, if he has had a bad night's sleep or if he is sick; and
   • (b) external factors, namely, how the environment is set up by his support staff and how good they are at "co-regulating his emotions".
3. Ms Fowler gave evidence that Mr Castledine's support carers had been very good at looking at his emotional resilience and his arousal levels, had set up a more structured environment for him and had built trusting relationships with him. Ms Fowler said that due to this and by them focusing on the individual steps of particular activities of daily living (ADL), it had enabled Mr Castledine to learn more skills.[93]
4. Ms Fowler said the role of the occupational therapist was to teach the support staff how to assist Mr Castledine with over-arousal by looking at the different factors impacting on his level of arousal. She said that it was important for the occupational therapist to have a good relationship with the team leader to assist her to understand the principles of PBS, to get Mr Castledine's arousal levels "just right" and to set up the right environment for him to learn.[94]
5. Ms Fowler was asked why an occupational therapist would need to liaise with a speech pathologist when providing therapy to Mr Castledine. Ms Fowler gave evidence, in effect, that when an occupational therapist was setting up activities for a person, it was necessary for them to understand what mode of communication was best based on their client's individual level of communication and whether they better understood one mode of communication over another.[95]
6. Ms Fowler was asked whether she considered there was an ongoing need in respect of Mr Castledine's case for monthly coaching and mentoring of the support staff. Ms Fowler gave evidence as follows:

Look, you know, it's actually a very difficult one. Because, it actually depends on the skills of the staff. Like, if you have got somebody like the team leader that you have now, I think, you know, she could run a lot of that herself, however there is a lot of pressure on her and she has got a lot of hours direct with Jake. I would actually like to see her role of somebody who had sort of, less hands on, who could oversee some of the recommendations from the OT.[96]

1. Ms Fowler told the Tribunal that she did not consider that Mr Castledine needed two occupational therapists treating him. At the hearing, Ms Fowler stated:[97]

I don't think - I think Jake doesn't need two OT's, which is what I told the manager for service, which is why I pulled out. I thought it was unnecessary. So, I think she can, she doesn't - he doesn't need to have a lead OT and a local OT, he just needs one OT.

1. Ms Fowler confirmed that her view was that there was a need for the ongoing training of Mr Castledine's support staff, "until the practices of PBS are really well embedded".[98] She said that she had noticed over the years with "Jake and other people" that there was a very high turnover of staff so "you are going to have to carry on having input, unless you are given a really good, consistent staff group that don't change much and you have got a really strong leader".[99]
2. Ms Fowler said she considered that the MDT meetings were important in terms of helping the staff to continue to reflect on their practice and how they are interacting with Mr Castledine and to "get the different perspectives of the different disciplines"; because "we all bring something different to the support".[100]
3. Ms Fowler indicated that she had considered Ms Cohen's recommendations (of 63 hours of occupational therapy) and did not comment on it when invited by Mr Castledine's representatives at the hearing to do so, other than to doubt whether it was possible to obtain fortnightly video footage as had been proposed.
4. When asked about her opinion regarding the NDIA's suggestion of using therapy assistants, Ms Fowler stated as follows:[101]

Well, to be honest, I haven't come across therapy assistants for a very long time. I know that we don't have them in Scope anymore and I'm not sure that I want a therapy assistant as such, but what I would - what I think would work better, is a lead person in the team, who was the conduit between the therapist and the team. Because, I think it's more than just - I wouldn't want somebody just to be doing OT. I think with a PBS approach, it's actually - it's a team approach and it's looking at the environment, the skills, the reflections of the staff - how they interact with the person. So, I would like somebody who was trained up in that, to make sure things were happening on the ground, rather than an OT assistant per se.

1. Ms Fowler said she was unable to comment on the number of hours that had been recommended by the speech pathologist, as that was not within her professional domain, other than to say:[102]

I think, originally, I asked for about 22 hours, but I notice that Hannah is asking for more, but I think she was going to do more face to face. I mean, for me, you know, that's a tyranny of distance. I'm over 300 kilometres away which was why I was trying to do it remotely, with much more video footage and then trying to catch up when I was in town...

1. During cross-examination, Ms Fowler said the last time she had seen Mr Castledine was on 2 or 3 December (2017), but not at the DHHS Unit. She indicated that she had met with him face-to-face on a monthly basis from the beginning of 2017 until July 2017 and then again in September, October and December 2017.[103]
2. Ms Fowler said she had not read the BAR prepared by Guidestar because, in effect, she did not think it had been finalised before she had "finished with the team".[104] Ms Fowler was asked whether her understanding was that Ms Cohen's role would include mentoring the staff and providing them with feedback. Ms Fowler said that Ms Cohen was going to "do some face to face" and "continue the feedback on their skill sets in encouraging participation".[105] Ms Fowler was also asked how she considered this aspect as differing from what a practice coach might do, to which she responded:

Actually, it's interesting you say that, because at one stage I was questioning why you need a practice coach and the OT. So, what the team leader said to me was that, the OT was very much looking at those microscopic behaviours for interaction and arousal levels. So really teaching them the skills to keep Jake in the interaction and to keep his arousal levels down. My understanding from Guidestar is that they're looking at a much broader picture where, if there's been a behaviour of concern, they're reflecting on, what were the triggers for that, what was the environment, so what was the background factors, what was the environment, what were the consequences.

So, my understanding is, they're reflecting much on the behaviour, the concern, whereas the OT was actually trying to look at things proactively to stop those things happening, so looking at those interactions to make sure his arousal level stays in the green zone. Because, yes, I was confused myself for a bit. I thought, why on earth do you need two types, but a team leader clarified for me, you're looking at different things.

1. Ms Fowler gave evidence to the effect there could be consistency in those two roles (of an OT and practice coach) if it was clearly written out who was doing what. Ms Fowler said that Guidestar (proposed to take on the role of practice coach) would not have the skills that an OT had to look at emotional regulation, and the OT probably would not have the skills to help the staff reflect on what they could do differently if behaviours of concern had arisen.[106] Ms Fowler put it another way by saying that the OT would be focussed on "proactive skills", whereas Guidestar would be focussed on changing the environment by staff reflecting on specific incidents.[107]
2. During cross-examination, when asked about the difference between the role of a practice coach and the team leader, Ms Fowler accepted that Mr Castledine's current team leader may be able to do some of some of the tasks a practice coach would do, particular in light of her being a "PBS coach". However, Ms Fowler said she considered that the team leader would require support from Guidestar to be able to do that; and with the funding model in place, the team leader would not have capacity to do the job reflection.[108] Ms Fowler also said that sometimes, it is good to have a person outside of the organisation doing it because (depending on the team) not all team members will listen to the team leader, whereas "they might be prepared to listen more to an external agency". Ms Fowler accepted that the aim was to build the capacity of the team leader and staff by the practice coaching over time, which would enable the practice coaching funding to be reduced.[109]
3. Ms Fowler gave evidence that she considered that Mr Castledine also needed a psychologist or behavioural specialist involved, to consider the triggers and function of his behaviour. In re-examination, Ms Fowler agreed that the different professionals and staff needed to meet in a formal way and to constantly review and share information. She said that with some of her other very complex clients a "case meeting" would be held so "everybody can get together and discuss it".[110]
4. Ms Fowler said she considered there was a need to consider the support provided to Mr Castledine, and in particular, in light of the transition to partial independent living because she said that, "transitions are very scary, particularly for people on the spectrum, because of their issues with having to predict what's going to happen".[111]

Ms Hanna Cohen's evidence - current occupational therapist

1. Ms Cohen prepared a report dated 16 November 2017[112] and a further joint report (with another therapist) dated 12 June 2018.[113] She also gave evidence at the hearing. Ms Cohen has practised as an occupational therapist since late-2011 and is currently working at Everyday Independence. Previously, Ms Cohen had worked at a specialist school and at a number of hospitals.[114]
2. Ms Cohen said she starting work with Mr Castledine in about mid-2017 in relation to home modifications for the DHHS Unit and his family home. In October 2017 Ms Cohen commenced as Mr Castledine's treating occupational therapist.[115] Ms Cohen said that Ms Fowler and Mr Sam Winzar from Everyday Independence had previously provided Mr Castledine with speech therapy. The Tribunal notes that Ms Cohen made a note of the therapy they provided to him in her report dated 16 November 2017.[116] At the hearing, Ms Cohen also said she had seen Mr Winzar's report regarding Mr Castledine and had been given access to Ms Fowler's report. In addition, Ms Cohen said the handover from Ms Fowler to her had involved a joint session with her and with Ms Castledine on 1 November 2017 and then a subsequent telephone discussion with Ms Fowler on 27 November 2017.[117] Ms Cohen said she had previously considered the report by the speech pathologist, Ms Greiner, who was also from Everyday Independence, although she had not done so recently.[118]
3. In Ms Cohen's report on 16 November 2017, she recommended the following occupational therapy input for Mr Castledine:

It is recommended that OT input is provided in the following ways to support Jake and his team to achieve his goals over the next 6-month plan period:

In order to support Jake and his team with his goals to extend interactions and participation in meaningful tasks - regular contact with his team is recommended to be provided in the following ways:

The regular input provided will focus on all goal areas (community life, showering, personal care, participation in life activities, incorporation of sensory stimulating activities that support arousal levels and positive behaviour.

- Attendance at 4x support team meetings (3 hours each) per year (12 hours per year)

• Collating information provided by all of Jake's support team and facilitating group training/sharing of information (4 x year) to ensure the most positive interactions and participation is being achieved.

• Going through sensory profile/diet, arousal levels, interactions

• Going through positive behaviour support plan

• Aiming to reduce reliance on Heather as main person sharing information.

- Attendance at 4x multidisciplinary team meetings - speech, OT, psych etc, (3 hours each) per year (12 hours per year)

- 30 mins fortnightly for video reflections of interactions between Jake and his support workers ... (12 hours per year)

- 1 hour face to face mentoring and coaching provided every other fortnight to Jake's support team (at home, community and day house) - spending 1 hour with a different support worker each visit. (24 hours per year)

- 3 hours per year to provide a thorough progress update in preparation for next NDIS plan period of recommended.

Additional OT input in this next plan may also be required for:

1. Environmental and support needs assessment may be required to assist Jake with applying for funding to transition to living to his own home in the next 12 months. (6 hours to provide relevant reports and recommendations)
2. Jake's mum has identified that OT input for a one-off assessment and assistive technology request may be required for car safety equipment (3 hours for assessment and AT request)

Total Occupational Therapy Hours Recommended

63 hours per year

Plus:

9 hours for specific reports for environment, support needs and car assessment.

Total Travel Hours That Will Be Claimed per Home Visit

1. At the hearing, Ms Cohen confirmed that in reaching her recommendations she had received input from Ms Killmier and "Daniel" from Guidestar. She also said she had spoken to Mr Castledine's support staff, specifically, Ms Lambert, "Anna" and "Josh"[119].
2. Ms Cohen said she had seen the BAR and confirmed that the version she had access to was dated 20 November 2017, but had not had the opportunity to take it into account in preparing her report (which the Tribunal notes pre-dates Ms Cohen's report).[120] She said she had been present with Mr Castledine on 10 to 20 occasions. Ms Cohen said she considered that Mr Castledine had the potential to develop his communication and engagement skills and to potentially spend more time out in the community. She provided an approximate time frame of three to five years. She gave evidence that she had been guided by Ms Castledine and the support workers who had known Mr Castledine for a long time, to arrive at this approximation.
3. Ms Cohen said she had considered past progress notes and had discussions with Ms Fowler about which strategies had been used in the past and whether or not they were effective.[121] Ms Cohen confirmed at the hearing that the goals she had for Mr Castledine were the goals set out in pages 18 to 20 of her report. She said the "community goal" had been a major focus they were working over the last few months.
4. During cross-examination, Ms Cohen outlined how her work tied in with the work of the therapists and acknowledge that the team was new and there was a need for them to meet and figure out how they were going to collaborate.[122] When commenting on whether someone had been given the role of taking the lead on this, Ms Cohen stated that:[123]

Not that I - I think we need to do that, yes. I don't think that we're quite there yet, and that's something that we hoping to work towards as a team, and I think most people involved have said yes, we need to establish it and work forward to keep doing that.

1. Ms Cohen gave evidence that she saw herself having a role in the building of skills; changing environments; trying to develop activities; sharing information that she was learning; and gathering information from others about what they had learnt about Mr Castledine and how it best suited him, so that they were all working together. She said that a practice coach could do this, "but I don't see that it doesn't sit with my role or other therapists' roles working with Jake".[124] Ms Cohen stated that skill development, looking at environments and activities fell within occupational therapy, as was giving strategies to support workers and sharing the workload on data collation.[125]
2. When Ms Cohen was asked about her interaction with the support coordinator, she said that initially she had a lot of interaction by telephone and email, including about whether she was able to do certain things, but it dropped off. She said she had not interacted with the support coordinator "this year" (i.e. from 1 January to 21 February 2018) and had been talking directly with Ms Castledine and Ms Lambert.[126]
3. When Ms Cohen was asked whether her report had made it clear what occupational therapy goals she had hoped Mr Castledine would achieve over the next 12 month period, Ms Cohen referred to the goal attainment scale (GAS) ratings in the report, and confirmed that at the end of the period she had specified in the report it was hoped that Mr Castledine's GAS would be zero. Ms Cohen said that the "success statement" was developed by Mr Castledine, "his family and his support", accepting that they were identified from what Ms Castledine and the supports had told her, but that they were "reflecting on" what they knew about Mr Castledine.
4. In relation to the recommendations in her report, Ms Cohen was questioned about whether she had any orders or guidance from anyone about the hours that were being looked at as being necessary for Mr Castledine. The Tribunal notes the following exchange:[127]

MS COHEN: So, all of those conversations were had very openly with Jake's family and support team, to work out what would work best for them and how they wanted to sort of, get that sort of, mentoring and coaching and opportunities to reflect on what is working. Yes, so that's how it's developed.

COUNSEL FOR NDIA: Okay. So, much of your thinking was guided by what was coming from the support workers and Janice as to what they felt they needed and what would be helpful to them, as much as you looking at the goals, identifying what you needed to do to meet those goals with Jake?

MS COHEN:---Yes, yes. I would say that is right.

1. Ms Cohen said she had not adopted the practice of reviewing video footage of interactions between a client and support staff as part of a plan on a regular basis with other clients. She said this was something that was already taking place with Mr Castledine and that it had worked well. She said this practice allowed her to see what was going on because she may have an impact on the environment when she is present and it was good for gathering data. She said this practice had been beneficial.[128]
2. When asked whether there was any doubling up with the video reflections and the fortnightly sessions, Ms Cohen said she did not think there was. Ms Cohen said she could not commit to weekly sessions with Mr Castledine so the video reflections allowed her to see what was going on during the week, in between the fortnightly sessions. She saw it as being "better value for money" as it would cost a lot of money for her to visit Mr Castledine on a weekly basis.[129]
3. Ms Cohen considered that at the present time the combination of the quarterly support team meetings with her, the face-to-face mentoring, and the video reflections, provided the opportunity to work quite intensively and to develop the skills of Mr Castledine's team quickly. Ms Cohen did not think that intensity needed to be sustained in the long term but with staff changes, there was a lot of training and new learning that was "constantly happening", and to build skills was "really valuable". Ms Cohen said they have had some great success so far in the way they had worked "every sort of, week to fortnight, also looking at the videos".[130] She also said that the opportunities for the team to meet had been valuable and that it would not necessarily be something that was long term, indicating that they should review the success of the meetings after a period of 12 months.
4. Ms Cohen acknowledged there would be need for training if there was staff turnover but she considered that by investing time in the current staff, hopefully, they would remain and could train others when a staff member left. Ms Cohen said she would need to "dip in" at those times and have more input.
5. Ms Cohen said she considered there was a lot of value in continuing to work with a person like Mr Castledine who was in his early twenties. She said she did not think he had reached an end point in his ability to learn, or that the people around him had given up. Ms Cohen said:[131]

I think there is a huge amount that can be done for the people surrounding Jake to build their skills, to help him have a better life and be more independent and have more access to social opportunities outside of funded support.

1. Ms Cohen's view about Mr Castledine's need for occupational therapy was best captured in the following evidence she gave at the hearing:[132]

The transition to living in his own home and the opportunity to build up skills and seeing what he is able to do right now with the support that he has got and seeing how having more positive interactions with other people has extended his ability to engage in activities in the short amount of time that I have worked with him, I do see that he has got the potential to build up many independent living skills and a lot of those skills are starting to need to be developed because of the transition out of the home and you know, I think some of the evidence which suggest that in key transition phases of people's lives, such as moving out of home, they will need more intensity in bursts of therapy intervention and additional support. So, yes, that hopefully explains where I am coming from and of course, there is an optimism that I hope Jake will succeed in the goals that we've set, but they are very much developed with the people who know Jake quite well to keep them realistic.

Ms Victoria Zainal's evidence - previous speech therapist

1. Ms Zainal prepared a report dated 1 September 2017 and gave evidence at the hearing.[133] Ms Zainal is employed by Scope and holds the following qualifications: Bachelor of Science from Flinders University (majoring in psychology), Bachelor of Applied Science (majoring in speech pathology), Certificate IV in Training and Assessment, Certificate IV in Business and a Diploma in Business.
2. Ms Zainal stated in her report that she has provided speech therapy to Mr Castledine for sessions that previously went for two hours and more recently, for 1.5 hours. Ms Zainal stated she also provided some one-hour sessions in Ms Castledine's home. Ms Zainal's report describes in detail the extent of Mr Castledine's expressive and receptive language. Ms Zainal stated the "small in-roads" had been made to increasing Mr Castledine's level of participation, but there was "a long way to go". She also stated that staff required modelling and support to be consistent in their use of strategies for Mr Castledine.
3. In Ms Zainal's report she summarised Mr Castledine's position as follows:

Jake is a young man with significantly impaired receptive and expressive communication as a result of Intellectual Disability, Autism and trauma. Jake's limited communication and behaviours of concern mean that he is extremely challenging to work with as he requires an increased length of time to get to know staff before he feels comfortable with them, and they with him. Even then, Jake has difficulties with his sensory issues and levels of arousal (see reports from Scope Occupational Therapist and Psychologist). Jake requires 2:1 support due to his behaviours of concern and for the safety of staff supporting him. Jake is able to learn new skills but requires many repetitions, patience, consistency and dedication from knowledgeable staff. This can only be achieved through sharing information and learning the strategies that work for Jake. These strategies include use of Augmented and Alternative communication such as Visual supports (photographs), communication Apps such as "First/Then" and Proloquo2go to name a few. Improvement in Jake's communication skills will be a long term goal.

1. One of Ms Zainal's recommendations in this report was to review and reflect on video footage of interactions with Mr Castledine.
2. Ms Zainal recommendations, in terms of service provision to Mr Castledine, included the following:
   • (a) two 1.5-hour sessions per week with Mr Castledine and to model strategies to staff (Ms Zainal clarified at the hearing that by "staff", she meant a reference to the team leader, Ms Lambert, would could then filter the information down to the other staff),[134] and to mentor them, plus an additional half hour each week for report writing (i.e. 4 hours per week "+ travel");
   • (b) 1 hour per week to update visuals (photo cards and individualise Prologue2go);
   • (c) 10 hours plus travel to handover to new speech therapist;
   • (d) attendance at quarterly team meetings (each meeting: 3 hours with 2 hours preparation and follow up per meeting "+ travel");
   • (e) provision of training each year at a one-day workshop ($1,200) and two half-day revision workshops ($600); and
   • (f) training by AssistiveWare in use and programming of Proloquo2go (separate quote required).
3. At the hearing, Ms Zainal gave evidence that she first met Mr Castledine in February 2017. Ms Zainal said that when a speech pathologist works in the area of behaviours of concern their role is to assess how the person is communicating their needs, wants, desires and opinions, when they want things and how they want things done on a day-to-day basis.
4. When asked about her sessions with Mr Castledine, Ms Zainal said that she would constantly assess what kind of state he was in, i.e. "whether he was in a state of higher arousal and therefore only just able to cope with minimum input from his environment, or whether he was in a state where he was quite a happy young man and willing to have new things introduced on the day".[135] She explained that the sessions did not involve her sitting down with Mr Castledine for the entire time doing intense activities with him. It involved observing the interactions between him and the support staff and providing feedback to them about those interactions. For instance, to see how well the different modes of communication were working with Mr Castledine to transition him from one activity to another. Ms Zainal also said that the way her sessions with Mr Castledine were scheduled at the DHHS Unit meant that "I was working with as many of the staff as I could, sort of in almost like a rotational basis".[136] She said that when she started there was a lot of groundwork that needed to be done to get the staff on board and to use the strategies that were decided to be the best strategies for Mr Castledine.[137]
5. Ms Zainal said, unsurprisingly, that her role was predominately focussed on communication. She said that information about triggers and functions of Mr Castledine's behaviours would be gathered and analysed by Guidestar and then fed back to staff. She said that her role was to proactively support Mr Castledine "in the moment"; and Guidestar's role was more retrospective reflecting or reactive.[138]
6. Ms Zainal said she had recommended that two sessions of speech therapy be provided to Mr Castledine because if there was only one opportunity per week to work with him and he was having a bad day, there would end up being a gap of two weeks between being able to work with him proactively. She said she had reduced the sessions from two hours to 1.5 hours because she was less familiar to Mr Castledine and she found that if she worked with him for more than two hours, he would start to become "a bit edgy" so it was better to limit her time with him.[139]
7. Ms Zainal said the staff had only reached a stage where they were able to take Mr Castledine out into the community and to get him out of the car. She said:

When he does go into public places there's very little interaction with people because Jake likes to be with - by himself. He doesn't like to interact with people. He likes his space, and these are all things that Janice told me when I first started working with Jake...

1. Ms Zainal was asked to commence on a long-term goal that had been identified for Mr Castledine by a different speech pathologist, Ms Charlotte Russell-Maynard, some years earlier. This long-term goal was that he should aim to learn and functionally use five new core words.[140] Ms Zainal expressed the following view about this proposed goal:

... For a lot of us our learning comes down to motivation, and at the moment Jake actually is, I think, quite comfortable, in my professional opinion, with the vocabulary he has. So we would need to be very, very careful in selecting what vocabulary we think Jake needs, and make sure that the vocabulary is taught in an environment, or in the correct context, so that he can learn the meaning of it and see that there's a positive outcome for it, because if Jake doesn't get an outcome from it, it won't be done. So I think in the long-term, it is a long-term goal, a very long-term goal.

1. Ms Zainal said her proposal for the workshops involved being able to train the staff in "keyword signing"; which is learning how to sign to Mr Castledine in a way that he can see the signal that has been given to him. Ms Zainal clarified that it was not always necessary to hold all of the workshops referred to in the proposal; but she had included them in case they were required, so the funding was available to hold them.[141] She said that it was not possible to deliver this training by the staff simply watching a video because the person who was being trained needed to have a basic knowledge of how to move their hands, and they needed to attend an initial workshop.
2. In terms of Ms Zainal's service proposal she said that Mr Castledine needed service at the recommended level for at least the next one to two years, following which it could be reduced. She said it was important for him to have the stable support of people around him and not to stop the communication support before there was a consolidation of what Mr Castledine had learnt and still had the potential to learn.[142]
3. Ms Zainal was asked how one would measure Mr Castledine's progress and she said that it would be measured by how happy and engaged he was on a day-to-day basis; and whether he was able to get his needs met and to express himself (which she referred to as "quality of life measures"), rather than how many words he had in his vocabulary.[143]
4. Ms Zainal gave evidence that Mr Castledine did not handle transition well, even from one activity to another and even if a warning was given to him. She said that for anyone with ASD and an intellectual disability, like Mr Castledine, care was needed not to change too many of the supports around him and she acknowledged that the planned transition to independent living was going to be "huge" for him.
5. Ms Zainal was asked to express her view about the proposed reduction in funding for Mr Castledine's therapy hours from 144 to 100. She gave evidence as follows:[144]

Jake needs consistency and repetition to learn. He needs consistency to continue to know what he knows. Part of what we know about epilepsy for instance, is that every time that he has an epileptic seizure there is a risk that it is affecting his memory. So what that means is that Jake needs reinforcement, over and over again to even just stay - you know, he worked really hard to just stay at the same level of ability from one day to the next. Let alone if he's having epileptic seizures. Now he was to end up with 100 hours of therapy and I'm assuming that is shared between occupational therapy and speech pathology, that wouldn't even cover one hour per week of a speech pathologist coming in to support the staff, see Jake, make changes et cetera. It's not enough, it's just not enough.

1. Ms Zainal was asked what she thought about the NDIA's proposal to supplement this support by the use of therapy assistants. She said that Mr Castledine's situation was unique; and his needs were such that a therapy assistant would not be able to coach and mentor the way that she or an experienced speech pathologist could.[145] Ms Zainal accepted that a therapy assistant could be used to assist in creating resources such as updating visuals and photo cards.[146]
2. During cross-examination, Ms Zainal said she had not been provided with a copy of Ms Russell-Maynard's report before she started providing speech therapy services to Mr Castledine. She accepted that by not having this report, it had put her in a difficult position as she did not know what had been tried before. However, she said it could be assumed for a man of Mr Castledine's age that he would have been exposed to certain strategies. She said that when she commenced providing therapy to Mr Castledine, there was no consistent strategy being used, so she reviewed what was working and looked at new strategies for him.[147]
3. When asked what strategies she decided were not appropriate for Mr Castledine, none were identified and her evidence indicated that a wide range of strategies were to be used. In terms of communication tools, Ms Zainal indicated she had doubts about the effectiveness of Proloquo2go but decided to significantly modify it (by simplifying it), for use in Mr Castledine's circumstances.[148] She did not accept that there were too many different communication systems being used; and that in her professional opinion and by observation, Mr Castledine was gaining information and support from each of the various communication supports. She said that the different strategies are not used at that same time but instead are used in different situations for different reasons.
4. When asked how Ms Zainal's role was different from the occupational therapist's role in providing services to Mr Castledine, she said that Ms Fowler had been working on his goal of emotional regulation which involved looking at his arousal levels and sensory needs. Ms Zainal said that when she was working with the staff she looked at the interactions from a communications point of view; and at replacing his behaviours of concern with more appropriate ways of communicating his needs or what he is trying to tell staff.[149] Ms Zainal said a behaviour support person (i.e. a psychologist from Guidestar) would be involved in looking at the overall behaviour of the person, including his triggers and functions of certain behaviour, and to suggest ideas about how to deal with the behaviour as a whole.[150]
5. Ms Zainal said that Mr Castledine was at the embryonic stages of being able to go into the community without incident, which is why there is so much input needed for him to regulate himself, follow instructions and to be able to express "what's happening for him".[151] When asked whether he was able to achieve a goal of "initiating positive interaction with less familiar people, one or two times a day, such as greeting others in the community", Ms Zainal said that he was a "long, long, long way off". When asked whether Mr Castledine was able to achieve a goal of engaging "in a conversation and maintain a topic for two or three turns with a familiar conversation partner", Ms Zainal said that this occurred sometimes, but in an echolalic fashion. She explained, "So, if Jake has learnt the correct responses, he can have a two to three turn interaction with somebody, but it is normally in response to questions, not as comments and not as spontaneous interaction".

1. Ms Greiner prepared a report dated 24 November 2017 and gave evidence at the hearing.[152] Ms Greiner said she graduated as a speech pathologist in 2015 and had worked overseas, before commencing work with Everyday Independence in 2016.[153] Ms Greiner said when she prepared the report the only other report to which she had access, was the report of Ms Fowler. Ms Greiner said she has since been provided with the BAR (showing the date 20 November 2017) and some other materials and had received some updates from Ms Cohen. Ms Greiner said she had met with Ms Zainal at Ms Castledine's house on 5 February 2018, to take Ms Greiner through Ms Zainal's report and to discuss what therapy had been provided to Mr Castledine and what had worked.[154]
2. Ms Greiner said she had attended seven sessions with Mr Castledine and had met Ms Castledine, Ms Lambert and a number of the support staff.[155]
3. Ms Greiner confirmed that in her opinion there had been a lot of communication approaches used with Mr Castledine; and because of that, the approaches had fallen down and none of them were working effectively and it had confused Mr Castledine.[156] Ms Greiner said that there needed to be a consistent approach. She indicated that the strategies that were being used may have been pitched at a level that was too high for his present capabilities. She said she was working on simplifying the strategies being used and keeping them specific to locations (for instance, keeping pictures in the unit and using the iPad in the community) so he could become competent in using those systems.
4. In her report, Ms Grenier stated that Mr Castledine showed "great potential to build on his current skills"; including being an active member of his community with effective social communication skills. Ms Greiner stated:[157]

...Capacity building will require ongoing input and repeated opportunities to practice in a safe and supportive learning environment (e.g. 1:1 community outings). Input will be required for staff training to understand Jake's communication cues more effectively and thus being able to support him better.

1. At the hearing, Ms Greiner said that she considered the action plan and strategy in her report as being achievable within the next 12 months, acknowledging that she had only worked with Mr Castledine for a short period of time.[158] Ms Greiner confirmed that she had recommended 98 hour of therapy, comprising 80 hours for the therapy sessions and quarterly one-hour meetings with the other therapists and for report writing, and 18 hours for travel time (based on 21 minutes for 49 visits).[159]
2. Ms Greiner gave evidence that she anticipated that there would be a gradual decrease in her input as the people she was supporting gained greater capacity through her input. Specifically, Ms Greiner said:[160]

I wouldn't anticipate to have intensive input, let's say five years down the track. I would anticipate to have upskilled Jake enough, including his supports, that I don't need to be there as intensive as right now.

1. Ms Greiner said that there was a collaborative approach to reaching the 80 hours that had been recommended by her for speech pathology. This was by collaborating with Mr Castledine, Ms Castledine and Ms Lambert and by having access to Ms Zainal's report. When using 1.5 hours for each session in calculating the total time for the weekly sessions, Ms Greiner agreed that she had reached this collaboratively with Ms Castledine and the support team, and by relying upon her professional opinion and past experience.[161] Ms Greiner accepted that she had not collaborated with the other therapists beyond Ms Cohen prior to writing her report; and that in future, a collaborative approach was required.[162] Ms Greiner said she had not seen the transitional BSP.
2. Ms Greiner gave evidence that Ms Cohen had told her that she had conducted a "Triple C", that is, "Checklist of Communication Competencies" assessment on Mr Castledine. Mr Greiner accepted that there was no reason why that assessment could not be used to track Mr Castledine's progress periodically.[163]
3. During cross-examination, Ms Greiner was asked to explain the basis of her opinion that 80 hours of speech therapy for Mr Castledine would benefit him. She said:[164]

Okay, so based on or having a look at [Ms Zainal's] report, what she has done in the past and what sort of outcome she has achieved, and then we had a look at how we can take what she has done already without doubling up and doing the same things again - having a look at what's worked and moving on and developing Jake's skills - I wanted to use the word developing and then had a look at some of the things or challenges that she had to move on with some of the stuff, and that's where we identified that we need the capacity building, and that's how it arrived to the 80 hours.

Ms Helen Killmier's evidence - supervising psychologist and CEO, Guidestar

1. Ms Killmier was a co-author of the BAR and a further service proposal by Guidestar dated 6 December 2017 (2017 Service Proposal). She also gave evidence at the hearing.[165] Ms Killmier said she held a Master's Degree in Psychology and has had more than 20 years' experience. She said she was an AHPRA[166] registered psychologist.
2. In the 2017 Service Proposal, Guidestar proposed that it provide the following services to Mr Castledine including:
   • (a) 40 hours for drafting and finalising a BSP and a Behaviour Response Plan for Mr Castledine;
   • (b) 50 hours to implement the BSP, described as including quarterly 3-hour team meetings, quarterly 3-hour MDT team meetings, fortnightly 3-hour training/coaching and support visits for three months (18 hours), an aggregate of three hours to liaise with occupational and speech therapists and 5 hours for ongoing support and follow-up including response to incident reports;
   • (c) 20 hours for reporting on BSP; and
   • (d) 200 hours for "reflective practice (coaching and support)" comprising 192 hours for 30-minute sessions (plus 15 minutes administration) per staff member per fortnight; plus eight hours as required for incident response on other weeks. Guidestar made the following note underneath this item as follows: "This Reflective Practice proposal reflects a maximum commitment and would necessarily decrease based on the team's internal capacity increasing as suggested in the [BAR]".
3. On the first day of the hearing on 19 December 2017, Ms Killmier indicated that a transitional BSP had been prepared to guide the staff awaiting preparation of the (final) BSP (that would flow from the BAR). Ms Killmier said that Ms Castledine had engaged Mr Bob Bowen directly to prepare the transitional BSP. She said he was a "specialist in behaviour support" based in the US; and had worked with people who had complex dual diagnoses, disabilities and subsequent behaviours of concern at the level that Mr Castledine exhibited.[167] When the Tribunal asked about the qualifications held by Mr Bowen, Ms Castledine informed the Tribunal that (as far as she knew), he was a qualified social worker.
4. Ms Killmier gave evidence that while Mr Castledine was functioning at "quite a low level across a range of dementias", he could "learn and understand and he can make changes in his behaviour if given the right support systems and the right motivation to do that".[168]
5. When asked about practice coaching, Ms Killmier gave evidence that it involved "putting resources in up front to capacity-build the team who are working with Jake on a daily basis and taper that off over time".[169] She said practice coaching was a "clinical leadership role" and provided a "reflective practice environment" for the staff. She said:

So it's really a very close analysis of what happened and what might have happened differently and trying to capacity build the staff so that next time there's a new strategy in place that prevents the behaviour from recurring or from escalating.

1. Ms Killmier gave evidence that the role of a practice coach was to give the staff an opportunity to safely and confidently analyse Mr Castledine's behaviour from start to finish by doing the following:[170]

So we look at the antecedents, we look at the consequences, we look at what happened during the behaviours and we are able to work with the staff to reflect on what might have been able to be done differently so that behaviour didn't happen in that same [way] and it might be that Jake is reacting to cold - like cold is one of the things that Jake definitely reacts to in his environment but there are so many of those and the staff have so many factors to consider when thinking about, for example, taking Jake out into the community. So they have to try to mitigate as much as possible for what potentially could happen and it's impossible to mitigate for absolutely everything because there are unpredictable factors in a community setting. However, they can certainly be prepared for and have thought through what might happen in certain settings and we do that through analysis of incidents. We do that through talking through with the staff about how confident they feel to work with Jake in certain environments.

1. Ms Killmier gave evidence that she thought it was "possible" for an upskilled, properly-trained team leader to eventually take on the role of a practice coach. Ms Killmier said it would depend on the person, and that Ms Lambert was someone who could fulfil that role, if she did not have "so many other things on her plate". However, Ms Killmier expressed the following reservation:

...But doing reflective practice and practice coaching is a specific skill set and that's the reason I guess that we do it at the moment is Heather is not a registered psychologist and the sorts of things that we discuss in the reflective practice and practice coaching sessions are of course about Jake. But for example, with Heather some of the things that I've spoken to Heather about has been about managing staff who are then working with Jake. So it is about being able to look at the system of support around him.

1. Subsequently during cross-examination, Ms Killmier said that "the ultimate goal of the practice coaching role" was for the team leader to include as part of her role the things that a practice coach would do.[171] She also said that the aim of practice coaching, if it was working well, is that it could reduce over time.[172]
2. During cross-examination, Ms Killmier was asked why practice coaching for Mr Castledine was still required in 2018 given that it had commenced in 2014. Ms Killmier said she was unable to comment on the practice coaching that had been provided previously, but she considered that it was required because Mr Castledine had a team that still required building and he was about to undergo a significant life transition.[173] Ms Killmier stated:

...it's about capacity building to the point where we're no longer needed, and that's almost a judgment call. It's about consistency of the team, having a stable environment, and also hopefully less and less incidents and behaviours of concern from Jake, and they're the indicators that will tell us things are going well, and we step back and step out. So, it's impossible to know when those things will happen, but with a consistent overlay and approach, we would hope that they would start to happen within at least six months.

1. Ms Killmer said that personally, she undertook the practice coaching with Ms Lambert; and some other members of her team did the practice coaching with the other members of Ms Castledine's support team.[174] Ms Killmier was asked by the Tribunal whether personally, she would provide all the services to Mr Castledine if all of the recommended hours of services to be provided by Guidestar were approved by the NDIA and incorporated into Mr Castledine's plan. Ms Killmier said she would attend to about half of the proposed activities, in particular, the "reflective practice" and "the multidisciplinary team" and that another Guidestar consultant, Mr Daniel Morrison, would attend to the other half.[175]
2. Ms Killmier said that Mr Morrison was a provisional psychologist. When asked what this meant, she said that he was not yet registered, but was nearing the completion of his Master's degree. She said he was in his twenties and had practised as a behaviour support specialist for two years.[176] Ms Killmier said that his charge-out rate was the same as hers. Ms Killmier said that it would be impossible for her to undertake all of the work (in respect of Mr Castledine) because she was running a practice and a business and Guidestar had other clients.[177] Subsequently, after a concern was raised about having two different staff members from Guidestar dealing with Mr Castledine, rather than just one, Ms Killmier said that she could look into personally providing the 290 hours of services to Mr Castledine over the next 12 months that had been recommended in the 2017 Guidestar proposal.[178]
3. Ms Killmier said that it would be "really useful" to continue doing the practice coaching "to get everyone through the transition" as Mr Castledine moved to a new environment for a couple of nights a week. She said she considered that, as a minimum, 45 minutes of practice coaching should be provided per staff member per fortnight which was equivalent to 4 hours per week. Ms Killmier clarified at the hearing that Guidestar was recommending that approval be given for reflective practice (which incorporated coaching and support) for 45 minutes for each staff (based on eight staff), plus a "buffer" of another eight hours for "incidence response" if something was to happen during the weeks Guidestar was not there to provide practice coaching. Ms Killmier accepted, in effect, that this proposal equated to a total of 164 hours of practice coaching (156 hours plus the 8-hour "buffer") and that her reference to 200 hours in the 2017 Guidestar proposal had been a mathematical error.[179]
4. During cross-examination, Ms Killmier accepted that the records showed that practice coaching had been provided to Mr Castledine since 2014 even though she had not been involved in providing that practice coaching for the whole time.[180] She said that Guidestar was engaged directly by Ms Castledine in July 2017 but it did not commence providing services to Mr Castledine until August 2017, when it was first registered as a provider under the NDIS. Ms Killmier said she was engaged to provide 10 hours of practice coaching per week but since August 2017, Guidestar had only provided 3 hours per week of practice coaching due to some issue that arisen with the NDIS funding. Ms Castledine told the Tribunal that the costing issue (i.e. this support being costed at a much lower hourly rate than Guidestar was charging), had been rectified in February 2017. Ms Castledine said that some of the allocated funding had been used to pay Mr Bowen to prepare the transitional BSP, which is why there was insufficient funding to pay Guidestar to provide 10 hours per week practice coaching during this period.[181]
5. During cross-examination, Ms Killmier was asked how the role of practice coach would interact with the role of the team leader and the occupational and speech therapists. Ms Killmier answered as follows:[182]

Practice coaching is specifically for the staff. It's a form of professional supervision. It enables them time to reflect on their own practice with Jake, their interactions with each other, the struggles that they may or may not have in the workplace, and that does include Heather. So, as I said previously, a lot of the practice work that we do is about Jake and those interactions and the staff, but some of the work, for example, that I have to enlist Heather, has been around management and managing staff, and strategies and techniques for supporting her in that role.

1. Ms Killmier said there were clear delineations between the work of the occupational therapist, speech therapist and practice coach.[183] Ms Killmier said she had read the service proposals of the occupational and speech therapists but had not spoken to them about the work they planned to do the following year (in 2018).
2. Ms Killmier said that Guidestar would be the lead on behavioural interventions which would form part of the BSP, and would be coordinating that part of the program.[184]
3. Ms Killmier was asked whether a plan had been developed for Mr Castledine in respect of the pending transition (to partial independent living). She indicated that this would be covered in the BSP which was yet to be developed.[185]
4. The Tribunal asked Ms Killmier when she met Mr Castledine. She said it was in either late-October or November (2017). Ms Killmier gave evidence that she had spent a total of about 2.5 or 3 hours with Mr Castledine.[186] Ms Killmier said her evidence about Mr Castledine was based on her direct knowledge of him; her staff's understanding, discussions, impressions, knowledge and history with him; and the comprehensive literature she had read in order to develop the BAR. Ms Killmier said that Rebecca Hogea and Ms Corr had had greater personal involvement with Mr Castledine than she had had, and that they had prepared the first draft of the BAR. She said she did a lot more than a final edit of the BAR and that personally, she had spent between 60 and 80 hours on it.
5. During cross-examination, Ms Killmier was asked why she had stated in the BAR that she considered the "non-registered self-management model" (for Mr Castledine) was "unsustainable". Ms Killmier said:[187]

...So, the fact that Ms Castledine has been managing and employing, whilst working, a team of people to support her son, is kind of extraordinary, and you can see that it is taking a toll on her and had taken a toll on her up to now.

...I understand why she's doing it and why she wants to, you know, hold this, but long-term it's not a sustainable model, particularly for her health and wellbeing...

...and therefore, the health and wellbeing of Jake, ultimately.

...I would hope that within another 12 months to two years, that there is a different model of practice in place that relieves Ms Castledine of the burden of being the sole employer, which I think, is just too much. Too much.

1. The Tribunal notes that Guidestar prepared a further report dated 13 September 2018 (2018 Service Proposal). This was approximately seven months after Mr Castledine suffered a stroke the night before the last day of the hearing. Guidestar made some observations about Mr Castledine about the extent of his recovery from the stroke. Specifically, Ms Killmier stated as follows:

As Jake's low level behaviours appear to be returning and he remains at a 2:1 ratio, all staff require a consistent approach and would benefit from reflective practice. Given the disruptions in staffing and lack of consistency, it is recommended that practice coaching continue for at least a 12 month period with a review built in the 12 month mark to evaluate each team member's critical thinking, practice improvements, confidence and their skills, knowledge and performance as disability professionals working with Jake. For weekday staff this would mean weekly practice coaching sessions and for weekend staff access to one session every month.

1. Guidestar revised its earlier recommendations in relation to practice coaching, as follows:

As a reasonable and necessary support for Jake, it is recommended that Practice Coaching continue on a weekly rather than a fortnightly basis. The costing below is based on a 12 month period and should be calculated on a pro rata basis for the remainder of Jake's current plan.

Weekday Staff

45 minutes per staff member, per week (30 min session - 15 minutes administration)

6 x 48 = 288 Hours + 8 Hours as required for incident response on other weeks = 296 hours

Weekend Staff

45 minutes per staff member, per month (30 min session - 15 minutes administration)

1. Despite Ms Killmier's recommendation that an increased number (i.e. 323 hours per annum) of practice coaching should be provided to Mr Castledine, counsel for Mr Castledine informed the Tribunal at the commencement of the fourth day of the hearing on 21 February 2018 that Mr Castledine was only seeking 152 hours of practice coaching per annum be provided to him.[188]

Ms Heather Lambert's evidence - support staff team leader

1. Ms Lambert provided a witness statement entitled "JDC individual support progress report" dated 26 November 2017 (Ms Lambert's Statement)[189] and gave evidence at the hearing.
2. Ms Lambert stated that she commenced with JDC in February 2017 at a time of "restructure and high staff turn-over within the organisation". At the hearing, she said she was employed as the team leader. There was no predecessor in that role.[190] She was involved in working four days per week in Mr Castledine's individualised day program.
3. Ms Lambert stated that it was "a complex situation with a highly complex man". The Tribunal notes Ms Lambert's further observations of the situation at this time:

During this time of restructure, Jake displayed an increasing number of behaviours of concern (see Table 1) with an observed decrease in participation in daily activities. The function of these behaviours was more evident as Jake struggled to absorb new people into his life and work out whom he could trust and how he could engage with these new people. Positive engagement in the program for Jake became increasingly difficult as he navigated new staff. This period of time saw increased property damage, vehicle damage and self-mutilation.

1. At the hearing, Ms Lambert gave evidence to the effect that from December 2016, for the following five or six months, there were many new staff who had commenced working with Mr Castledine after a number of staff departures.[191] Ms Lambert said she was under the impression that the practice coach started when she commenced her employment as the team leader.[192] She said that initially she had a session with the practice coach once a week and each staff member had a weekly half-hour session with her.
2. In her statement, Ms Lambert referred to staff being trained in PBS principles throughout the day program hours. And while the staff's support of Mr Castledine improved, she stated that certain behaviours of concern and his behaviours while travelling in the car "remained unstable", requiring modifications (i.e. the installation of Perspex dividers) to be made to the car. Ms Lambert stated that at this time the transitional BSP was developed and that she coached the staff to understand and implement the strategies in this plan. Ms Lambert stated that the strategies were "strongly in line with the occupational therapist's strategies for supporting Jake's emotional regulation".
3. Ms Lambert stated that the support staff, "work tirelessly to support Jake in his desire to access the community and set out each day with the goal that he will achieve success in the community in the form of increased independence, building connections, and having a valued impact".
4. In relation to the practice coaching that had taken place, Ms Lambert stated:[1]

In addition to Janice Castledine's management support, the ongoing reflective practice support from the practice coaches at Guidestar Life has greatly assisted staff in implementing the transitional BSP. During these reflective practice sessions, staff are able to discuss with the practice coach their own reflections of how Jake is doing in the program, the reasons behind his behaviours (both positive and negative), the details of support strategies, and how staff, themselves, are personally feeling while working in the program...

1. Ms Lambert also referred to receiving further coaching in PBS; having had continued discussions about the MANDT system;[193] and that all staff were trained in April 2017 by Uniting Care LifeAssist.[1] She stated that an analysis of the data which was collected indicated that from August 2017 to October 2017 there was a decrease in Ms Castledine's behaviours of concern, increased participation and/or capacity building in activities and tasks, and an upward trend in positive engagement with staff.
2. At the hearing, Ms Lambert confirmed that she held the qualification of Bachelor of Science in Rehabilitation Psychology from the University of Wisconsin-Madison, USA. She also had experience and training in autism-related programs such as the TEACH program.[194] Ms Lambert said she was also a trained PBS coach. She confirmed that she was not a registered psychologist and did not have a degree in psychology. Ms Lambert said she had worked in the US for about ten years; in India for one year as a consultant in two schools for children with autism; and in Australia for about five years. She had spent 16 years in total working in this field.[195]
3. Ms Lambert was asked why she considered it necessary for the external practice coaching to take place when she had a background in PBS, to which she answered:

...I think the reflective practice involved in having a weekly session with a practice coach is incredibly useful, for me being able to reflect on how I am best coaching the staff and how I am implementing strategies involved in positive behaviour support and involved in our behaviour support plan. To have someone to discuss those with, someone with a strong background in all of that, to discuss the strategies that I'm helping and supporting staff to implement, as well as just discuss anything that is going on within...the program, whether they're actually working...whether what's been written in the behaviour support plan is actually being implemented effectively. So for me just having that reflective practice time and that discussion to actually think out loud about how everything's going really is incredibly useful, for me personally.

1. Ms Lambert said that she considered it useful for the staff also to have access to individual practice coaching because of how intensive the day is for her and the other staff, such that there is not a lot of time for them to discuss the strategies. Also because an outside perspective was useful because Ms Lambert and the staff might have different ideas and reflections on the best way to do things.[196]
2. Ms Lambert said that by her and the staff engaging in reflective practice, it had allowed them to have input into the development of the transitional BSP through their sessions with Mr Bowen.[197] Ms Lambert said that having a BSP helped her and the staff to maintain consistency in their approach and their strategies. She indicated that she had not seen a new BSP, so the transitional BSP was still relevant. She said that in some ways it was deficient because they had made progress and some of the strategies in the transitional BSP were no longer necessary. She said it would be very useful if they had an up-to-date BSP.[198]

Ms Meg Parsons' evidence - NDIA employee (Director Complex Support Strategy)

1. The NDIA relied on a witness statement from Ms Parsons signed on 16 February 2018 (Ms Parson's Statement).[199] Ms Parsons also prepared the NDIA's SOP and Annexure A.
2. In Ms Parsons' Statement, she stated that she had worked in the "disability, aged care and mental health sectors since 1993 in direct service provision and management roles". Her previous work experience included the development and authorisation of BSPs for "people with extremely complex behaviours of concern". Ms Parsons stated she had attained two Master's degrees in Australia - the first in Disability Studies, conferred by the University of Newcastle in 2007[200] and the second in Innovation and Service Management, conferred by the Royal Melbourne Institute of Technology in 2010.[201]
3. Ms Parson stated that in approaching the "funding question", she had taken into account the following:
   • (a) NDIA "internal agency publication" entitled "Practice Guide - Intensive Super Intensive Participants - Guidance for Planners, LACs and delegates (dated 13 September 2017)" (NDIA Practice Guide);[202] and
   • (b) National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Rules).
4. At the hearing, Ms Parson described what she considered to be the roles of support coordinators and self-managing NDIS participants and the expected outcomes and responsibilities of each of those roles.
5. Ms Parson sought to explain her reasoning underlying the content of Annexure A. Ms Parson made the following assertions, in part, drawing from observations that had been made by Guidestar:
   • (a) there had been "disruptions in funding, planning and service delivery" to Mr Castledine as had been observed by Guidestar, which had impacted on the continuity of supports to him;[203]
   • (b) there was little evidence of the "benefits realisation" of the various models of support that had been in place for Mr Castledine;[204]
   • (c) there were considerable issues with data integrity of the history of evidence available regarding supports and interventions for Mr Castledine;[205]
   • (d) a suitably qualified behaviour support practitioner had not be involved in the design, implementation, coordination and monitoring of a BSP for Mr Castledine;[206]
   • (e) in her view, the provision of 2:1 support for Mr Castledine was tantamount to a "restrictive intervention" as it "restricts freedom of the participant and through a power imbalance uses inference to manage a participant", making reference to the Disability Act 2006 (Vic); and that the new BSP to be devised for Mr Castledine should aim at reducing the 2:1 supports to 1:1 over the course of the new plan;[207]
   • (f) there needed to be a "lead" for Mr Castledine's BSP who would design and develop the supports that "deliver on the plan" and that it needed to be coordinated;[208]
6. Specifically, Ms Parson's expressed the following concern in her statement:[209]

Jake's diagnosis (of likely organic brain damage, Autism Spectrum Disorder, ADHD, Bi-Polar and undiagnosed but recognised PTSD) must also be considered when formulating the Positive Behaviour Support plan. The goals and strategies must be realistic and set achievable key performance indicators for Jake that do not increase his anxiety and set him up for failure. The requested 500+ hours of Multi-Disciplinary Support are (in my opinion) likely to overwhelm Jake and, given the referenced amount of time Jake spends in an over aroused state, have little benefit. (Fowler report).

1. Ms Parsons supported some of the observations that were made in the Guidestar report, including the emphasis placed on a single model of support being implemented (instead of different models on weekdays and weekends); and that there needed to be "clinical oversight", as referred to on page 53 of the Guidestar report. Ms Parson relied on an observation in the Guidestar report that "there is too much being squeezed into the day, as a means to meet perhaps more societal expectations" and stated that "a push to meet planned goals" may not be in Mr Castledine's best interests.[210]
2. Mrs Parsons stated that she considered a budget of $61,000 for "capacity building" with flexibility was a reasonable and necessary amount of supports for Mr Castledine to further develop and implement the PBS model developed by Mr Bowen; to support him to achieve his goal of reducing his behaviours of concern and to begin his transition into his own home.[211] Mrs Parsons stated that this budget would also enable the consolidation of many different strategies being used (she gave as an example the two iPads being used which had been programmed differently).
3. In relation to occupational therapy, Ms Parsons stated that it was unclear how the goals identified by Ms Cohen in her report linked to and would "work together and alongside" the other therapeutic interventions and in particular, the PBS program.[212] She was concerned that some of the proposed tasks appeared to be the responsibility of the practice coach/PBS practitioner. Ms Parsons considered the statements of success in Ms Cohen's report were broad and did not contain measures that would overlay the proposed period of the therapeutic intervention (i.e. being 12 months) and what would be "tangibly achieved".
4. In relation to the speech therapy, Mrs Parsons stated that the existence of two "non-complementary" reports evidenced the lack of a coordinated approach to Mr Castledine's PBS intervention. Further, Mr Parsons stated that:

Jake's assessed functional impacts and the lack of recorded outcomes and benefits of previous interventions (particularly positive quality of life outcomes) experienced by Jake bring into question the value of a high volume of therapeutic interventions.

1. Ms Parsons stated that it was not clear how the proposed 80 hours of speech therapy would be used and what therapeutic approach would be adopted. Mr Parsons stated that, "A best practice speech therapy model would have clear goals and measurable improved outcomes for the participant".[213]
2. Specifically, Ms Parsons criticised Ms Zainal's report for having "very limited and loosely defined goals". She acknowledged that Ms Zainal had outlined what was going to be tried, assessed and/or implemented; but she said there were "no set goals" that had "clear possible outcomes". Ms Parsons was critical of the fact that Ms Zainal's report did not refer to any consideration having been given to past therapies and therapeutic approaches that had been trialled (either successfully or unsuccessfully).
3. Ms Parsons was also not sure how the proposed speech therapy would work alongside the other therapeutic interventions; or that the information and data collated by Guidestar had been considered when making the proposal for speech therapy. For instance, Ms Parsons stated that it was concerning to her that the "largest trigger" (33%) of Mr Castledine's behaviour occurred when he had communicated what he wanted, but was asked to persist with an activity. Ms Parsons considered it inevitable, in her view that an incident would occur if staff continued to insist that Mr Castledine undertake an activity that he had expressed he did not want to do.[214] Further, Ms Parsons doubted the use of the "First...then..." strategy for Mr Castledine was effective given the data provided by Guidestar.[215]
4. Ms Parsons stated that there was a "lack of researched evidence" to support a recommendation that 285 hours of therapy was "best practice intervention" for Mr Castledine, who was 25 years old with multiple diagnoses, complexities and significant behaviours of concern.[216] She said it was an "extremely high quantum of intervention" and "especially when this quantum of therapy is in addition to other therapies including an intensive positive behavioural support program".[217] Ms Parsons stated she was concerned as to how many systems of communication were being used for Mr Castledine (which she counted as eight in total) and that it was likely to cause confusion for anyone and especially for Mr Castledine.[218]
5. Ms Parsons considered that Mr Castledine's support workers were able to develop shared ideas of consistent communication strategies and how to support his awareness of emotions. She also stated that staff training could be provided during the speech therapists allocated hours and they (or therapy assistants) could develop a personal communication diary for him.[219]
6. Ms Parsons also criticised Ms Greiner's Report as having vague and nonspecific "success statements", meaning it would be difficult to determine whether the therapy was successful or whether Mr Castledine had achieved his goals. Ms Parsons considered that there was no clear planned approach to address Mr Castledine's communication needs and a lack of researched evidence to support the recommendation for the provision of 80 hours of speech therapy. Mrs Parsons raised similar concerns about how the proposed speech therapy would work together with and alongside the other therapeutic interventions or that previous interventions had been considered.
7. In relation to practice coaching, Ms Parsons referred to certain principles referred to in the NDIA Practice Guide; including that NDIS participants should receive services based on a "high quality" BSP that is responsive to the participant's needs. [220] Ms Parsons stated that the "PBS budget" should be used flexibly by a "suitably qualified" behavioural support practitioner ("practice lead") to "apply resources to maximise outcomes for Jake" and that Annexure A was a guide as to how to apply the total budget of $61,711.40.[221]
8. Ms Parsons stated that the budget would enable implementation of the recommendations in the BAR including;
   • (a) developing and implementing a BSP;
   • (b) reviewing and revising data collection;
   • (c) training for staff and informal supports;
   • (d) utilising a MDT (including a "diversional therapist"); and
   • (e) reflective practice (related to the BSP).
9. Ms Parsons stated that the other recommendations in the BAR would be implemented "through Jake's core supports, self-management with some support from the Support Coordinator". In particular, Ms Parsons asserted as follows:[222]

As Ms Castledine is self-managing Jake's NDIS plan and directly employing staff, the expectation is that she has a capability and capacity to fulfil the responsibilities associated with self-management. As an employer, Ms Castledine also has a responsibility to provide regular staff support, training and professional development in accordance with the relevant employment legislation.

1. The NDIA contended that Mr Castledine did not rely on the recommendations of Ms Killmier made on 13 September 2018, and this meant that his request for 179 hours of practice coaching was unsupported by any evidence.[223]

1. The NDIA contended that the hours allocated to therapeutic interventions could be used flexibly under the MDT intervention subcategory of the NDIS Price Guide (as at 1 July 2018). The NDIA further contended:[224]

This is distinct from the hours allocated to behavioural support planning which is designed to include determining how those funds are used between the various therapists and support workers, after consultation with those professionals. This is indicated by Annexure A. It has never been proposed that the hours for planning would be used for therapeutic interventions.

1. During cross-examination, Ms Parsons confirmed that she had not had any experience in the provision of therapeutic services and that she was not a qualified therapist. Ms Parsons said she had previously been "signed-off" by the State Secretary of Disability as an authorised program officer for Karingal (now called genU), being a large state-wide private disability service provider. She said Karingal's clients included a high number of participants with complex needs.[225]
2. Ms Parsons did not agree to a suggestion put to her by Mr Castledine's counsel that she was not qualified to provide an expert opinion on the clinical recommendations of speech pathologist, occupational therapist or psychologist (in terms of practice coaching others). She relied upon her appointment as an authorised program office, her qualifications and 20 years' experience in disability and direct service provision as recognition of her competence.[226]
3. When asked, Ms Parsons said she had not met Mr Castledine; and that in her role, she did not need to meet him. She said her role was that of an advisor and "to look at all of the material that they have prepared to, to look at how that works together to produce an integrated plan that meets the legislative requirements of the NDIA". Ms Parsons also said:

We're not assessing the complexity of Jake and we've never said we are. We agree he's a very complex young man but what we're looking at is what is the program of supports in its entirety.

1. Ms Parsons summarised her key concerns at the hearing as follows:[227]

I think the key is getting Jake to the point and Jake's support workers to the point and family, understanding what are the key communication mechanisms that he uses so he can communicate what he wants and needs and it's about also getting realistic goals for Jake and really making sure the bar is set at an appropriate level and I'm never one that will say that there is never an opportunity of someone developing skills and capability but it is about setting that at a realistic standard for all of the complexities in their life. I think too it's not just at the moment about Jake's disability, it's also very much about the complexity in the world around him and the multiple workers and the multiple therapists as well and we really have to get that contained and get a nice, controlled, very clear environment and we've heard from many of the therapists and staff that it would be good if we could do that or it would be - we need to do that. Comments like that which indicate that there is a lack of control and if I may use the word, it's quite a chaotic environment. So our intent...is about a line in the sand and getting real clarity. I think one of the beauties about the NDIS is that we get that this year and we get clarity and then we look at it as evidence for the next plan and who knows, the evidence may tell us that there is a good reason to have 200, 300, 1,800 hours but at the moment with what is happening in Jake's life, we're saying this is what we think would get a nice containment and clarity around it.

1. When Ms Parsons was asked to explain the basis for her recommendation that Mr Castledine be provided with 100 hours of therapy, she indicated it was a figure "we have used for many years in the state", "looking at what is recommended quantum of supports for children, for people of varying ages", "for people with complex needs".[228]

Draft NDIA Practice Standards about behaviour support plans

1. On 21 December 2017, the NDIA lodged with the Tribunal and served on Mr Castledine a document entitled "NDIS Practice Standards - Draft Specialist Behaviour Support Module, Draft High Intensity Daily Personal Support (Complex Behaviour Support) Module". In the covering letter, the NDIA's senior lawyer at that time stated as follows:

As discussed the second document is subject to the undertaking made by the Applicant to not distribute this document as it is DRAFT. We anticipate that a finalised version will be made available to the public in February or March 2018.

1. It contains high level statements of principle and desired outcomes relating to functional behavioural assessments and the development, implementation and review of BSPs. Neither party sought to tender this draft document at the hearing. The precise status of this guidance is presently unknown.
2. By the end of the hearing, the Tribunal notes that Ms Castledine appeared to agree with most of the NDIA's general contentions relating to the general principles espoused in this guidance: for instance, that the therapeutic intervention to be provided to the participant should arise from a BSP that has been developed for Mr Castledine.

1. The Tribunal notes that the NDIA Practice Guide does not stipulate any numerical parameters for an appropriate number of hours of therapeutic intervention (including practice coaching) to be provided to an "intensive" or "super intensive" participant. Instead (and appropriately so), it refers back to the need to apply the criteria in s 34(1) of the NDIS Act. For this reason, while the Tribunal noted the general statements of principle as contained in this guidance, it had little bearing on the final decision of the Tribunal in this case.

Issue #1 - how many hours of therapeutic intervention is reasonable and necessary for Mr Castledine and how should this funding be structured

1. Firstly, the NDIA has agreed that Mr Castledine should be provided with 110 hours of "behavioural support planning, support, monitoring and reporting".[229] The detail for this item of support was described as follows:

Development of comprehensive behaviour support plan with goals, strategies, metrics

Analysis and review of implementation of Behaviour Support Plan (BSP) - this includes Functional Behaviour Assessment (FBA) and any required changes (flexibility to use hours as needed)

Reporting required on BSP implementation and outcomes against goals.

1. Secondly, Ms Castledine contends that in addition to the support referred to in the above paragraph; Mr Castledine should also be provided with 143 hours per annum of additional therapeutic intervention. This figure is based on Ms Castledine's contention that her son requires 63 hours per annum of occupational therapy as recommended by Ms Cohen (see paragraphs [167] of these Reasons for Decision) and 80 hours of speech therapy per annum as recommended by Ms Greiner (see paragraph [207] of these Reasons for Decision). Mr Castledine also relied upon the indication by Ms Killmier that, while she did not feel appropriately qualified (because of her area of specialisation) to make a recommendation as to how many hours of speech and occupational therapy Mr Castledine required, she endorsed the recommendations that had been made by Ms Cohen and Ms Greiner.
2. The NDIA stated in its closing submissions that it did not agree with the assessments of Ms Cohen and Ms Greiner and considers that the total number of hours recommended by them was "too high". Instead, the NDIA contended that an aggregate amount of 100 hours of "speech, occupational and/or sensory therapy", supplemented by a further 100 hours for the provision of therapy assistants (at a much lesser hourly rate than a qualified therapist), was sufficient.[230] The NDIA relied upon the recommendations made by Ms Parsons and contended that the integrated PBS model as proposed in Annexure A should be preferred.[231]

1. The NDIA pressed the Tribunal not to accept the recommendation of 63 hours of occupational therapy per annum made by Ms Cohen, for the following reasons:
   • (a) the NDIA contended that Ms Cohen had only "been present" with Mr Castledine on 10 to 20 occasions before she prepared her report, and that the Tribunal should take into account that her relationship with him was "relatively new";
   • (b) the NDIA also contended that Ms Cohen appeared to have been "unduly influenced" by "what was already being done with the Applicant, and the views of others as to what should be done" referring to the conversations Ms Cohen had with Ms Castledine and the support staff before formulating her recommendations. As an example, the NDIA said Ms Cohen had adopted the activity of fortnightly video reflections in her recommendations, being an activity that was undertaken by Mr Castledine's previous occupational therapist, in circumstances where this was not an activity adopted by Ms Cohen in relation to her other clients;[232] and
   • (c) the NDIA highlighted to the Tribunal that Ms Cohen had admitted that she had not read the complete BAR report before making her recommendations and that it appeared that Ms Cohen had not taken into account whether an "early intensity" approach was appropriate for Mr Castledine as a 25 year old with complex needs and who had a long history of therapeutic interventions.
2. No doubt, the Tribunal would have had greater comfort in the appropriateness of Ms Cohen's recommendations, had she fully considered the BAR prior to making her recommendations. However, the Tribunal notes that it was a lengthy report and that Ms Cohen had read some parts of the BAR.
3. The Tribunal also accepts the NDIA's contention that Ms Cohen's approach had been influenced by the input she had from Ms Castledine and the support carers. However, the Tribunal does not regard such influence as being inappropriate. It was understandable that Ms Cohen took this path before making her recommendations which would allow her to understand as best she could, from those who had been supporting Mr Castledine for a long time, what had worked for him in the past and what had not. This appeared to the Tribunal to be a prudent professional practice for an occupational therapist to undertake in reaching a view about what level and manner of therapeutic intervention was required by a client.
4. The Tribunal also accepts that Ms Cohen had adopted particular therapeutic strategies that were employed by her predecessors, such as the fortnightly video-reflection practice, in circumstances where she had not used those strategies with other clients. The Tribunal does not consider this to be a reason to doubt Ms Cohen's independence in making professional recommendations to the effect that such strategies should continue to be adopted in the future to assist Mr Castledine. Ms Cohen had an invaluable opportunity to employ those strategies in her therapy with Mr Castledine and to witness whether or not they were effective. Ms Cohen was also able to adequately explain to the Tribunal at the hearing the benefit she considered would flow to Mr Castledine from adopting those strategies, irrespective of which therapist had instigated them.
5. Importantly, Ms Cohen has had the benefit of being present with Mr Castledine on at least ten occasions. The Tribunal considers that this is sufficient time to enable Ms Cohen to assess his potential for improvement and increased capacity, and to make informed professional recommendations based on her direct observations of Mr Castledine during those ten sessions, as to the type and level of occupational therapy he requires to achieve his potential.

1. At the hearing, Ms Greiner confirmed that she had recommended that Mr Castledine be provided with 80 hours of speech therapy services comprising 49 1.5-hour speech therapy sessions with Mr Castledine; four one-hour meetings with the other support therapist; two hours for report writing and 30 minutes for anything (e.g. phone calls) that happens between sessions. She said that she required 18 hours for travel time but that this would not necessarily be required, for instance, if she was also attending sessions with other clients.
2. The NDIA highlighted that prior to Ms Greiner giving evidence at the hearing; she had only had seven sessions with Mr Castledine and was reluctant to give a time frame for when she expected him to reach his goals as identified in her report.
3. The NDIA invited the Tribunal to find that the 80 hours recommended by Ms Greiner in her report did not represent her "independent professional opinion as a speech therapist but rather was influenced by what others (in particular, [Ms Castledine]) considered was appropriate" based on Ms Greiner's evidence at the Tribunal during cross-examination as follows:[233]

COUNSEL FOR NDIA: Okay. I want to ask you some questions about the 80 that you reached, the 80 hours in your report?---M'mm.

When you were coming to prepare your report, were you given some kind of general writing orders or guidance as to the kind of hours that were thought useful in terms of your therapeutic work with Jake?---Yes, in collaboration with Jake, Janice and his team, I had access to the report from Vicki and had a look at what was implemented then, and we had a look at what (indistinct) were necessary and how we can move forward to ensure that, addressing the most important goals for Jake, and there was a collaborative approach to reach those 80 hours.

...

So, accepting that it can be used flexibly, was that kind of time that you felt you should be inputting into your calculation something that you have come up with on the basis of this collaborative discussion with Janice and the workers about what they would find useful?---Including professional opinion and past experience.

1. The Tribunal accepts that Ms Greiner's approach was influenced by the input she had received from Ms Castledine and the support carers. However, the Tribunal does not regard such influence as being inappropriate. It was understandable that Ms Greiner undertook a collaborative approach before making her recommendations, which allowed her to understand as best she could, from those who had been supporting Mr Castledine for a long time, what had worked for him in the past and what had not. The Tribunal considers that a different criticism would or could have been made if Ms Greiner had not taken the time she did to be informed by those persons as to their views about the specific needs of Mr Castledine. This appeared to the Tribunal to be a prudent professional practice leading up to her making a professional assessment about Mr Castledine's therapeutic needs.
2. The NDIA invited the Tribunal to accept other criticisms made about Ms Greiner's report including that:
   • (a) her report did not set out a clear planned approach to address Mr Castledine's communications needs;
   • (b) Ms Greiner admitted that she had only read "bits and pieces" of the BAR; and
   • (c) Ms Greiner had not "sat down with" any other therapists working with Mr Castledine other than Ms Cohen and there was a lack of clarity about how the proposed speech therapy would work together with the other proposed therapies;
   • (d) Ms Greiner had proposed an activity that she admitted at the hearing was able to be performed by a support coordinator.
3. Regardless of whether the Tribunal were to accept any or all of those criticisms, the Tribunal was satisfied that Ms Greiner had independently exercised her professional judgement (as a qualified and skilled speech therapist based on information she had received from different sources and on direct observations she had made of Mr Castledine), to reach an opinion that 80 hours was an appropriate number of hours of speech therapy per annum that should be provided to Mr Castledine.

1. As mentioned above at paragraph [51] of these Reasons for Decision, Ms Cohen's and Ms Greiner's Joint Report was issued after Mr Castledine suffered a stroke in February 2018. In this report, the treating therapists jointly endorsed the appropriateness of the day program tailored to Mr Castledine's needs. Mr Castledine's representatives contended that this report demonstrated that the two therapists from Everyday Independence had continued to work in a collaborative manner and that their "findings" should be accepted and given[234]ll weight.234
2. In answer to a question as to whether Ms Cohen's and Ms Greiner's respective views about the number of therapy hours initially recommended by them for Mr Castledine had changed or ought to be revised to address his change in circumstances and any change in his functional capacity, they stated as follows in their joint report (underline emphasis added):

As outlined above, Jake's therapy goals remain the same to address his overall NDIS goals.

Within the recommended Occupational Therapy and Speech Therapy hours that were initially recommended, attention to Jake's change in circumstances and potential for increased fatigue is acknowledged and monitored; however it has not required an increase or reduction in the level of support that was initially recommended.

During the time that Jake was an in-patient, therapy sessions ceased; however in the weeks following Jake's discharge, extra time was spent with Jake to assess his functional capacity and to ensure his support needs were being met and all new support team members were trained to work with Jake.

NDIA's evidence in relation to speech and occupational therapy

1. The NDIA did not call any expert evidence from a speech therapist or occupational therapist providing an alternative opinion, based on a professional assessment of Mr Castledine, as to what therapy was appropriate for him and how many hours were reasonable and necessary in his circumstances.
2. Ms Parsons, a senior employee of the NDIA, who admittedly holds impressive qualifications and has had significant work experience in the disability sector, expressed a view about what was appropriate for Mr Castledine as part of proposing an integrated MDT support. However, the Tribunal does not accept Ms Parsons' evidence as it relates to how many hours of speech therapy or occupational therapy are required by Mr Castledine, primarily, because she is neither a speech pathologist or occupational therapist, and also because she has never had the opportunity of making direct observations of Mr Castledine and his present ability to communicate with others and to undertake activities of daily living.
3. The NDIA complained of Ms Cohen only having been present with Mr Castledine on 10 to 20 occasions before making her recommendations and that Ms Greiner had only had seven sessions with him. However, by comparison, Ms Parsons had not ever been present with Mr Castledine before making her recommendations about therapeutic interventions that should be regarded as reasonable and necessary supports.
4. The Tribunal prefers the evidence of Ms Cohen, Ms Greiner and Ms Killmier, as they are each qualified and practising therapists who have met and interacted with Mr Castledine and his carers. There are better placed to make recommendations as to his need given that they were in a position to undertake a professional assessment of him. There is evidence that each of them have at least a reasonable understanding of his therapeutic history. Accordingly, the Tribunal is not prepared to dismiss Ms Cohen's and Ms Greiner's recommendations for the reasons contended by the NDIA, in preference for Ms Parsons' recommendations.

1. Applying the relevant legislative framework as set out in paragraphs [97] and [98] of these Reasons for Decision, the Tribunal will address the question of whether the mandatory requirements under s 34(1) are satisfied in relation to the requested therapeutic intervention, specifically, occupational therapy and speech therapy. In doing so, the Tribunal has taken into account the evidence outlined in paragraphs [104] to [271] of these Reasons for Decision.
2. Specifically, the Tribunal accepts the evidence given by Ms Greiner that the provision of speech therapy to Mr Castledine has the potential to improve his communication with others - see paragraph [206] of these Reasons for Decision. The Tribunal is satisfied from Ms Greiner's, Ms Zainal's and Ms Killmier's evidence that optimising Mr Castledine's capacity to communicate, even in ways that might seem to others to be modest, is critical to giving him the best possible chance of being able to use key formal and informal support people in his life to "co-regulate" his emotions to minimise the frequency and severity of his behaviours of concern. The more Mr Castledine is able to do so, the more he will be able to engage with those around him and the broader community and to achieve greater independence.
3. The Tribunal also accepts the evidence of Ms Fowler and Ms Cohen that the provision of occupational therapy to Mr Castledine, as particularised in Ms Cohen's report, is critical to producing the right environment to assist Mr Castledine to "co-regulate" with key formal and informal support people in his life, to maximise the extent to which he can undertake activities of daily living as independently as possible (even if this continues to require the assistance, and perhaps significantly so, of others); and to increase the prospects of him being able to safely engage in community activities rather than being isolated in the DHHS Unit or at his home. By doing so, the Tribunal finds that Mr Castledine will be assisted to pursue his goals, objectives and aspirations, including to transition to independent living and to increase his participation in the community.
4. For these reasons, the Tribunal is satisfied that the requirements under s 34(1)(a) and s 34(1)(b) are met in Mr Castledine's case.
5. The Tribunal is also satisfied that the requirement under s 34(1)(c) is met in that the costs of these supports are reasonable and necessary taking into account the benefits that will be achieved. Due to the complexity of Mr Castledine's circumstances, the Tribunal does not accept that there is a significant role that could be played by therapy assistants, as proposed by Ms Parsons, as a way of rationalising the cost of his therapeutic supports.
6. The expert evidence provided by Mr Castledine's previous and current speech and occupational therapists and Ms Killmier, satisfied the Tribunal that his needs are intense and complex. It is appropriate that in Mr Castledine's circumstances, any speech or occupational therapies be delivered by highly skilled and experienced practitioners. If there are simple tasks that are suitable to be carried about by a less-skilled person, such as making up visual aids etc., the Tribunal considers that Mr Castledine's support staff could be tasked with such activities in their general role as a support worker of Mr Castledine; for instance, for the support staff to undertake those tasks at times when Mr Castledine is resting or sleeping.
7. The Tribunal accepts the evidence of Ms Cohen that Ms Castledine requires fortnightly two-hour sessions with an occupational therapist. The Tribunal also accepts the evidence of Ms Greiner that he requires weekly 1.5-hour sessions with a speech therapist, noting that for a significant number of them, according to Ms Castledine, Mr Castledine may not be in a suitable "zone" to effectively engage with those therapists. So the therepaists may then use that time, as they presently do, to coach and mentor the support staff about strategies that they consider appropriate. The Tribunal also considers, based on the evidence, that the further half-hour sessions proposed by Ms Cohen to undertake the "video reflections" with the support staff is also modest in duration and would be beneficial to Mr Castledine as the capacity of his support staff are likely to be greatly improved by conducting those sessions.
8. The Tribunal accepts the evidence that quarterly support team meetings and quarterly MDT team meetings are beneficial for all persons involved to enable the members of those teams to work together collaboratively and in a consistent way to provide effective therapeutic outcomes for Mr Castledine. The Tribunal considers that the effectiveness of those meetings is underpinned by periodic training which may be provided to the attendees as a part of those meetings as required from time to time (and not as an additional support).
9. The Tribunal finds the additional time required by the therapists to prepare review reports for submission to the NDIA will also be beneficial to Mr Castledine in the longer term to ensure that he has an appropriate level and type of ongoing therapeutic support in the future.
10. Ms Greiner recommended that one hour was required for the quarterly meetings with the other therapists and two hours were required for report writing. Ms Cohen recommended that more time was needed for those activities. The Tribunal considers that the duration for those activities as recommended by Ms Cohen is reasonable and necessary in Mr Castledine's circumstances, on the basis that those meetings should incorporate staff training and development as required from time to time. In fact, at the hearing Ms Castledine indicated that she considered that it would be beneficial for some of the time at these meetings to be used for this purpose (i.e. to undertake training and development). This means that the Tribunal accepts the recommendation of Ms Cohen that Mr Castledine should be provided with 63 hours of occupational therapy and the recommendation of Ms Greiner that he should be provided with 80 hours of speech therapy.
11. The Tribunal is satisfied that the requirement under s 34(1)(d) is met for the reasons outlined above, and because there was no evidence presented which the Tribunal considered placed into doubt that the recommendations made by Ms Cohen and Ms Greiner constituted something other than current best practice proposed to be adopted by each of them, in light of their respective current qualifications and experience as practising therapists and in particular, and in light of both of them having worked with Mr Castledine and having made direct observations in relation to his circumstances and needs.
12. The Tribunal is satisfied that the requirement under s 34(1)(e) is met because the Tribunal has considered the assistance that is able to be provided to the therapists by the support workers; for instance, to make up visual aids etc. and to apply the therapeutic strategies while the therapists are not present.
13. The Tribunal is satisfied that the requirement under s 34(1)(f) is met as it is not contended that either of these supports were more appropriately funded or provided through another general system. The NDIA accepted that speech therapy and occupational therapy were appropriate supports to be provided to Mr Castledine under the NDIS, subject to its concerns about the number of hours being sought by Ms Castledine.
14. For these reasons, the Tribunal finds that the provision of funding for 63 hours of speech therapy and 80 hours of occupational therapy to Mr Castledine per annum are reasonable and necessary supports under s 34(1) of the NDIS Act, primarily based on the acceptance of Ms Cohen's and Ms Greiner's expert evidence.
15. In terms of how to structure the funding for those supports, the Tribunal agrees with Ms Parsons' evidence to the extent that she considered that this funding should form part of a combined or integrated MDT support for Mr Castledine, together with the other therapies to be provided to him. This will allow Ms Killmier, as the clinical practice leader, to determine in consultation with the relevant treating occupational and speech therapists how that funding is to be applied to Mr Castledine over the course of the plan as his particular circumstances and needs may vary from time to time.

Issue #2 - how many hours of practice coaching is a reasonable and necessary support for Mr Castledine and how the funding for this support should be structured

1. The NDIA does not dispute the value of practice coaching per se being provided to Mr Castledine and contends that 76 hours of practice coaching is a reasonable and necessary support. Mr Castledine has requested 179 hours of practice coaching. As mentioned above, the NDIA contends that because Mr Castledine has requested a lesser number of hours than recommended by Guidestar, this was tantamount to an acceptance by him that Guidestar's recommendation of a higher number of practice coaching hours did not represent a "reasonable and necessary" support. The Tribunal considers that it must satisfy itself whether the supports requested are reasonable and necessary supports under the NDIS Act based on the evidence before it, and not focus on whether either party considers them to be so, or to draw conclusions on the basis of concessions or compromises that either party might be prepared to make to the other.
2. Mr Castledine's representatives stated in Mr Castledine's Reply that "the 179 hours sought by the Applicant is based on the recommendations and evidence of Ms Killmier (February 2018) articulating the need for 152 hours of practice coaching support for the day staff and 27 hours of practice coaching for the weekend staff (Guidestar report dated 13/09/2018)".[235] Further, Mr Castledine relied upon Ms Killmier's evidence that practice coaching was a "wrap around approach". Mr Castledine's representatives contended that the practice coaching was directly and intrinsically linked to Ms Castledine disability needs and was beyond what any ordinary employer was obliged to provide to its employees.[236]
3. Mr Castledine's representatives seek to rely upon the combination of parts of two different recommendations made by Ms Killmier at different times. Mr Castledine's representatives invited the Tribunal to adopt part of Ms Killmier's recommendations in the 2017 Service Proposal in respect of the weekday support staff; namely, that they receive fortnightly practice coaching for 48 weeks of the year and part of her recommendations in the 2018 Service Proposal in respect of the weekend support staff; namely, that they receive practice coaching on a monthly basis.

Is practice coaching a reasonable and necessary support?

1. Applying the relevant legislative framework, the Tribunal is satisfied that all of the mandatory requirements under s 34(1) are satisfied in respect of providing a support to Mr Castledine of 160.5 hours of practice coaching, comprising:
   • (a) 45-minute fortnightly reflective practice sessions (or practice coaching) for eight support staff for 48 weeks per annum (to allow for four weeks' annual leave), amounting to 144 hours per annum; and
   • (b) 45-minute monthly reflective practice sessions (or practice coaching) for two weekend support staff for 11 months per annum (to allow for four weeks' annual leave), amounting to 16.5 hours per annum.
2. The Tribunal accepts the evidence of Ms Killmier that the 45-minute fortnightly reflective practice sessions (monthly for weekend staff) are specifically aimed at building the capacity of Mr Castledine's support staff so they may provide their support care for him in an informed and consistent way to improve Mr Castledine's ability to use the presence of the support staff to allow him to "co-regulate" his emotions and to minimise his behaviours of concern. The Tribunal is satisfied that this, in turn, will lead to an increased participation by Mr Castledine in activities of daily living and an improvement in his level of social engagement at home and in the community. The Tribunal accepts the evidence of Ms Killmier as set out in paragraphs [214] to [217]. By doing so, the Tribunal is satisfied that Mr Castledine will be assisted to pursue his stated goals, objectives and aspirations, including to transition to independent living and to increase his participation in the community.
3. Accordingly, the Tribunal is satisfied that in respect of the proposed practice coaching at the intensity referred to in paragraph [314], the requirements under s 34(1)(a) and (b) are met.
4. The Tribunal is also satisfied that in respect of the proposed practice coaching at the intensity referred to in paragraph [314], the requirement under s 34(1)(c) is met. The Tribunal is satisfied that the benefits identified in the above paragraph will be achieved if practice coaching is provided at this level, relying upon the earlier recommendations of Ms Killmier made in the 2017 Service Proposal that those sessions should take place on a fortnightly basis.
5. Ms Killmier's subsequent recommendations in the 2018 Service Proposal that the frequency of those sessions be increased (i.e. doubled) to weekly sessions for each staff member was based on what she described as changes in Mr Castledine's circumstances as referred to in paragraphs [231] and [232] of these Reasons for Decision. However, based on the evidence the Tribunal is not satisfied that Mr Castledine's circumstances changed to an extent that justified such a significant increase.
6. Realistically, it is evident from the history of this matter that despite the best endeavours of all those concerned, there are likely to be ongoing disruptions to Mr Castledine's staffing arrangements in the future, as well as ongoing changes to his personal circumstances and possibly also his health, as there have been in the past. The most significant change in Mr Castledine's circumstances has been his transition to independent living, which started in 2018 and continues to take place. The recommendations of Ms Killmier in the 2017 Service Proposal were made in contemplation of a transition to independent living being imminent for Mr Castledine meaning that this had been taken into account when forming her opinion about how many hours of practice coaching were required by him.
7. The NDIA contended that 76 hours of practice coaching per annum were sufficient. However, the NDIA did not seek to tender any expert evidence by a registered practising psychologist to support its contention as to what was an appropriate frequency for practice coaching to take place in Mr Castledine's circumstances, other than to rely upon the opinion of Ms Parsons. As mentioned above, despite Ms Parson's qualifications and experience in the disability sector, the Tribunal does not accept her views that a much lesser number of practice coaching hours are sufficient for Mr Castledine. This is primarily because Ms Parsons is not a registered practising psychologist and has never had the benefit of making direct observations of Mr Castledine. The Tribunal does not consider that Ms Parsons was in a better position, than Ms Killmier, to make a professional assessment of the need for practice coaching in Mr Castledine's circumstances.
8. The Tribunal considers that the provision of funding for 45-minute sessions for practice coaching to be provided to fortnightly to eight weekday support staff and monthly to two weekend staff, for 48 weeks of the year, is a reasonable and necessary support for Mr Castledine that will benefit him (albeit indirectly through building the capacity and resilience of his support staff).
9. The Tribunal does not accept that a "buffer" of eight hours should be added as a further support for "incident response" in case something happens during the "off-weeks". During those times, the Tribunal considers that the scheduling of sessions should be done in a flexible manner, such that sessions may be swapped between the various staff members if a particular staff member requests an urgent reflective practice session to take place on account of a significant incident that has occurred. That being the case, the Tribunal considers that 160.5 hours practice coaching for Mr Castledine alone, without the added "buffer" of 8 hours, is a reasonable and necessary support for him.
10. The Tribunal is satisfied that in respect of the proposed practice coaching at the intensity referred to in paragraph [314], the requirement under s 34(1)(d) is met because there was no evidence presented by the NDIS which caused the Tribunal to doubt that the registered psychologist, Ms Killmier, had recommended supports for Mr Castledine which were not aligned with "current best practice" given her qualifications and practising experience.
11. The Tribunal is satisfied that in respect of the proposed practice coaching at the intensity referred to in paragraph [314], the requirement under s 34(1)(e) is met. The Tribunal finds that role of a practice coach is not able to be easily substituted by Ms Castledine or Ms Lambert. The Tribunal accepts the evidence of Ms Killmier that in the longer term, provided success is achieved in properly upskilling Ms Lambert as the team leader so that she may assume the role of practice coach to provide effective reflective practice sessions to the support staff, the need for practice coaching to be provided by Guidestar may diminish.
12. The Tribunal accepts the evidence provided by Ms Killmier and Ms Castledine (as confirmed by Ms Lambert) that this would require additional funding to provide additional "on the ground support" to Ms Lambert to enable her to dedicate time to this activity of practice coaching. The Tribunal finds that under the present structure, Ms Lambert remains directly involved in the day-to-day provision of care to Mr Castledine and is required to juggle a number of tasks which renders her "time poor" when at work with Mr Castledine, leaving her with limited capacity to engage in any meaningful way in the role of a practice coach to the support staff. There is also the issue of whether the appropriate upskilling may in fact be achieved. Staff turnover appears to an inevitable as the history of this case has demonstrated. At present, the Tribunal concludes that it is not reasonable to expect, at least for short to medium term, that the team leader or Ms Castledine would be able to provide the proposed support of practice coaching to Mr Castledine either partly or in whole.
13. The Tribunal rejects any suggestion that it is more appropriate that Ms Castledine provide reflective practice opportunities for her support staff as part of her role as "employer". Ms Castledine is not sufficiently qualified to do so; and would require significant training to take on such a role.
14. The Tribunal is satisfied that in respect the proposed practice coaching at the intensity referred to in paragraph [314], the requirement under s 34(1)(f) is met because it is not a support that is more appropriately funded or provided through another general system or by the provision of other services.
15. In relation to this requirement, the NDIA accepted that practice coaching was an appropriate support to be provided to Mr Castledine under the NDIS but questioned whether the role of a practice coach might have been duplicated by the roles of other therapeutic service providers or Mr Castledine's team leader, and in particular the speech or occupational therapists. This was dealt with during the cross-examination of the speech and occupational therapists and Ms Killmier at the hearing.
16. The Tribunal is satisfied from the detailed explanations provided by those witnesses and by Ms Lambert at the hearing, that their respective roles are distinctly different when providing therapy and services to Mr Castledine as part of an integrated MDT practice, as outlined in paragraphs [220], [221], [161], [162], [177], [243] and [244] in these Reasons for Decision. While it is inevitable that there are some minor areas of overlap and a certain degree of dovetailing of those roles, the Tribunal is not satisfied that there would be a duplication of supports or that the practice coaching support is a support that is more appropriately provided by the speech or occupational therapists or by Ms Lambert as the team leader of the support staff, instead of Guidestar.
17. The Tribunal considers that for the short to medium term the practice coaching of Mr Castledine's support staff should be delivered by a registered psychologist such as Ms Killmier, and every effort should be made to ensure that is it is the same registered psychologist fulfilling this role for the entire team of support staff, to maximise consistency across the team, which will ultimately be of benefit to Mr Castledine.

Issue #3 - whether Mr Castledine should receive funding for his travel costs and if so, how that funding should be calculated

1. As outlined in paragraphs [69] to [72] of these Reasons for Decision, by the end of the hearing the parties ultimately reached agreement that Mr Castledine should be funded under the NDIS for his travel costs for trips made from Monday to Friday, inclusive of journeys by private vehicle to and from Ms Castledine's house to the DHHS Unit and any trips to and from the DHHS Unit t[237]laces in the community.237 However, the parties remained in dispute as to the level of funding that should be approved for this support, based on differing views as to how the travel costs should be calculated due to a difference of opinion about what rate per ki[238]etre should be applied.238
2. Mr Castledine particularised his request numerically in his closing submissions. Specifically, Mr Castledine sought $10,829 funding for his travel costs, based on travelling an average of 289.25 kilometres per week multiplied by 48 weeks (per 12-month period), being 13,884 kilometres per year (which the NDIA did not take issue with), at the rate of $0.78 cents per kilometre (which the NDIA did take issue with). Mr Castledine contended that the figure for the average number of kilometres per week was based on the "recent transport log" for the period from April to August 2018.
3. The Tribunal considers that it is not necessary for it to be concerned as to the numerical particularisation of the Mr Castledine's travel costs. Instead, applying the criteria in s 34(1) of the NDIS Act, the Tribunal considers that Mr Castledine should be funded for all travel he undertakes, on any day of the week to and from Ms Castledine's house to the DHHS Unit, and for any travel to and from the DHHS Unit to places in the community. It is accepted by the parties that it is not feasible for the safety of Mr Castledine, his carers and members of the public for Mr Castledine to catch public transport. For the same reason, he cannot travel by taxi or hire car. The travel described above will assist Mr Castledine to live an independent and active life, and the additional costs involved in travelling by private vehicle over travelling by some other means (for instance, by public transport, taxi or hire car) are incurred solely by reason of his disabilities, as was accepted by both parties.
4. The rate per kilometre requested by Mr Castledine is based on the transport allowance rate prescribed in clause 20.5 of the Social, Community, Home Care and Disability Services Industry Award 2010 (Industry Award) being $0.78 per kilometre. The NDIA contended that the Industry Award covered employers and their employees and that it did not apply because Ms Castledine did not employ service providers. It was further contended that it was inappropriate to apply the Industry Award "by analogy as not all service providers may be "employees"; some may be self-employed" and that "it benefits some, but not all, workers in the industry". The NDIA contended as follows:

Given the NDIS is a statutory scheme, there is utility in considering the provision of travel expenses under similar statutory schemes. Those schemes similarly apply in actuarial approach. The Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Comcare scheme), the Military Rehabilitation and Compensation Act 2004 (Cth) and the Defence Rehabilitation and Compensation Act 1988 (Cth) (the MRCC schemes) - similar insurance schemes - provide a rate of 60c per kilometre for any travel expenses over 50 kilometres. The Veterans' Entitlements Act 1986 (Cth) provides a rate of 35.5c per kilometre for travel expenses.

1. The Tribunal considers that the appropriate rate that should apply to every kilometre of travel for the purpose identified in paragraph [331], is the rate prescribed by the Australian Taxation Office from time to time, for the purpose of calculating an individual's tax deductions relating to travel in a pri[239]e vehicle.239 The Tribunal considers that this rate reflects the generic quantification of the cost to an individual of running a car arrived at by the Commonwealth Government and is applicable in the context of determining funding for transport supports in the form of travel by private vehicle of a participant under the NDIS being a Commonwealth Government administered scheme.

1. The Tribunal has decided to set aside the decision of the reviewer relating to the statement of participant supports forming part of Mr Castledine's Second Plan. In substitution, and with effect from 27 April 2017, the Tribunal decides to approve a new statement of participant supports for Mr Castledine that includes the following supports:
   • (a) 143 hours of therapeutic intervention per annum to be provided by a speech therapist and/or occupational therapist in accordance with the directions of the Applicant's clinical practice leader;
   • (b) 160.5 hours of practice coaching per annum to be provided to Mr Castledine's support staff by a registered psychologist in accordance with the directions of the Applicant's clinical practice leader;
   • (c) 110 hours of "behavioural support planning, support, monitoring and reporting" to be provided by a PBS practitioner who is a registered psychologist in accordance with the directions of the Applicant's clinical practice leader;
   • (d) transport costs for the actual kilometres travelled by Mr Castledine by private vehicle for all journeys to and from Ms Castledine's residence to the DHHS Unit, or to or from this unit to places in the community, on any day of the week, to be calculated on the basis of the rate per kilometre prescribed by the Australian Taxation Office from time to time for the purpose of calculating an individual's tax deductions relating to travel in a private vehicle; and
   • (e) all of the supports listed in the statement of participant supports forming part of Mr Castledine's Fifth (and current) Plan, to the extent that those supports have not been provided for above by the inclusion of the supports listed above in subparagraphs [336 (a) to (d)] of these Reasons for Decision.
2. The Tribunal must consider what review date should be included in Mr Castledine's new statement of participant supports, being one aspect of a statement of participant supports required by s 33(2)(c) of the NDIS Act. The Tribunal considers that it is appropriate to extend the review date in Mr Castledine's new statement of participant supports to 22 June 2020. This will allow for a reasonable period of time (a further nine months) to pass to allow for Mr Castledine's transition to independent living to progress further and/or be completed, before the NDIA will be prompted by the review date nominated above, to undertake a further review of Mr Castledine's circumstances and supports. If Mr Castledine's circumstances change before this nominated review date, either party is at liberty under s 48 of the NDIS Act to instigate an earlier plan review.

2. I certify that the preceding 337 (three hundred and thirty seven) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

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

[1] Refer to paragraph [32] of Mr Castledine's Statement of Position lodged with the Tribunal on 14 December 2017 (Mr Castledine's SOP).

[2] Refer to paragraph [32] of Mr Castledine's SOP.

[3] The correct version of the First Plan and covering letter from the NDIA dated 5 October 2016 was tendered at the hearing and forms Exhibit "R1". The NDIA informed the Tribunal at the hearing the version of the First Plan appearing at T-Documents T16 was incorrect and should be disregarded. The NDIA subsequently refers to having made a decision on 28 September 2016 (see NDIA letter dated 9 May 2017) and not 5 October 2016. It may be that the delegate's decision was made orally on 28 September 2016 and confirmed in writing by the delegate's letter on 5 October 2016. Nothing turns on this discrepancy about the date of the decision. The Tribunal will refer to this decision as having been made on 28 September 2016.

[11] Refer to paragraph [6] of Mr Castledine's SOP.

[12] Refer to Transcript 18 December 2017 at P-8, lines 25-37.

[13] Refer to Transcript 18 December 2017 at P-9 to P-11.

[14] Refer to email from the NDIS to the Tribunal and Ms Castledine's representatives dated 21 December 2017 attaching covering letter by the NDIA to Mr Castledine dated 18 December 2017 and copy of the Third Plan.

[15] Refer to Transcript 21 February 2018 at P-137.

[17] Refer to Tribunal's Direction made on 22 February 2018.

[18] After the hearing, on 26 February 2018 Mr Castledine's representatives also lodged with the Tribunal travel log book records showing details of travel undertaken on various dates in 2017.

[19] Refer to Transcript 21 February 2018 at P-117.

[20] Refer to page 2 of Ms Cohen's and Ms Greiner's Joint Report.

[21] Refer to paragraph [6] of Mr Castledine's Closing Submissions.

[22] Refer to paragraph [7] of Mr Castledine's Closing Submissions.

[23] Refer to paragraph [44] of Mr Castledine's Closing Submissions.

[24] Refer to paragraph [5] of Mr Castledine's Closing Submissions.

[25] Refer to paragraph [5] of the NDIA's Closing Submissions. This appears to be a reference to Annexure A of the NDIA's SOP which was prepared by Ms Parsons.

[26] It seems the reference to $54,000 was intended to be a reference to $54,469.18 as appearing in the plan. Nothing turns on this minor discrepancy.

[27] Refer to Transcript 20 December 2017 at P-286.

[28] Refer to paragraph [47] of the NDIA's Closing Submissions.

[29] Refer to paragraph [6] of the NDIA's Closing Submissions.

[30] Refer to Transcript 18 December 2017 at P-45.

[32] Refer to paragraph [8] of the NDIA's Closing Submissions.

[33] Refer to Transcript 18 December 2017 at P-45.

[35] The Tribunal also notes it has taken into consideration the observations of Deputy President Forgie in the recent decision of Re Williamson and National Disability Insurance Agency [2019] AATA 2944.

[36] Refer to pages 7 and 8 of the Fifth Plan.

[37] Refer to paragraph [55] and [56] of Mr Castledine's Closing Submissions.

[38] Refer to s 35(1)(a) of the NDIS Act.

[39] Refer to s 35(1)(b) and (c) of the NDIS Act.

[41] Refer to Transcript 20 December 2017 P-238.

[47] Refer to paragraph [6] of Ms Castledine's Statement.

[48] Refer to paragraphs [8] and [9] of Ms Castledine's Statement.

[49] Refer to paragraph [12] of Ms Castledine's Statement.

[50] Refer to paragraph [13] of Ms Castledine's Statement.

[51] Refer to paragraph [14] of Ms Castledine's Statement.

[52] Refer to paragraph [15] of Ms Castledine's Statement.

[53] Refer to Transcript 19 December 2017 at P-119.

[54] Refer to paragraph [17] of Ms Castledine's Statement.

[55] Refer to paragraph [18] and [20] of Ms Castledine's Statement.

[56] Refer to Transcript 20 December 2017 at P-251.

[58] Refer to paragraph [22] of Ms Castledine's Statement.

[59] Refer to paragraph [23] of Ms Castledine's Statement.

[60] Refer to paragraph [27] of Ms Castledine's Statement.

[61] Refer to paragraph [28] of Ms Castledine's Statement.

[62] Refer to paragraph [29] of Ms Castledine's Statement.

[63] Refer to paragraph [32] of Ms Castledine's Statement.

[64] Refer to paragraph [33] of Ms Castledine's Statement.

[65] Refer to paragraph [130] of Ms Castledine's Statement.

[66] Refer to paragraph [41] of Ms Castledine's Statement.

[67] Refer to paragraph [43] of Ms Castledine's Statement.

[68] Refer to paragraph [45] of Ms Castledine's Statement.

[69] Refer to paragraph [46] of Ms Castledine's Statement.

[70] Refer to paragraph [47] of Ms Castledine's Statement.

[71] Refer to paragraph [49] of Ms Castledine's Statement.

[72] Refer to paragraph [50] of Ms Castledine's Statement.

[73] Refer to paragraph [58] of Ms Castledine's Statement.

[74] Refer to paragraph [60] of Ms Castledine's Statement.

[75] Refer to Transcript 19 December 2017 at P-106.

[76] Ibid; Ms Castledine said that the other support workers were paid at the rate of $31 per hour plus superannuation. Scope is paid $47.20 per hour by the NDIA for the provision of its support worker, "Josh", to care for Mr Castledine.

[80] Refer to Transcript 18 December 2017 at P-14.

[81] Refer to T-Documents T12 (2011 report), ST-Documents ST1 (June 2017 report) and Exhibit "A1" or Annexure K (second of two documents) to Mr Castledine's SOP (November 2017 report). The progress report attached to the June 2017 report was missing from the ST-Documents and subsequently tendered by Mr Castledine's representatives as an exhibit at the hearing.

[82] Refer to page 1 of the 2011 report.

[86] Based on an extrapolation from the numbers stated in the 2017 report to a 12-month period.

[88] Refer to Annexure K (Ms Fowler's report dated 22 November 2017) of Mr Castledine's SOP.

[90] Refer to Transcript 18 December 2017, P-13.

[113] Refer to paragraph [290] of these Reasons for Decision.

[114] Refer to Transcript 21 February 2018 at P-28.

[116] Refer to page 2 of Ms Cohen's report dated 16 November 2017.

[117] Refer to Transcript 21 February 2018 at P-30.

[134] Refer to Transcript 18 December 2017 at P-65.

[140] Refer to report prepared by Ms Russell-Maynard (undated) at T-Documents T13.

[153] Refer to Transcript 21 February 2018 at P-59.

[157] Refer to Exhibit "A9" at page 6.

[166] AHPRA is the Australian Health Practitioner Regulation Agency.

[167] Refer to Transcript 19 December 2017 at P-101.

[188] Refer to Transcript 21 February 2018 at P-16.

[190] Refer to Transcript 19 December 2017 at P-145.

[193] The MANDT System program presents an education and training system of gradual and graded alternatives for de-escalation and supporting people.

[194] Ms Lambert said that TEACH program was the Treatment and Education of Autistic and related Handicapped Children, which involved structured teaching and other structured environments - refer to Transcript 19 December 2017 at P-145.

[200] Refer to Transcript 21 February 2018 at P-90.

[202] Refer to Exhibit "R3". Ms Parson's gave evidence that this latest version of the NDIA Practice Guide was approved on 13 September 2017 but it had been in existence prior to that time - refer to Transcript 21 February 2018 at P-102.

[203] Refer to Ms Parson's Statement at paragraph [20].

[207] Ibid at paragraph [26] and [27]. The Tribunal notes that "restrictive practice" in s 3(1) of the Disability Act 2006 (Vic) is defined as meaning "any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with a disability or of an NDIA participant" and that Part 6B of this Act sets out a number of provisions regulating the use the restrictive practices by registered NDIS providers.

[210] Ibid at paragraph [35] and p 87 of the Guidestar Report.

[221] Refer to Ms Parson's Statement at paragraph [46].

[223] Refer to NDIA's Closing Submissions at paragraph [10].

[224] Refer to paragraph [32(iii)] of the NDIA's Closing Submissions.

[225] Refer to Transcript 21 February 2018 at P-89.

[229] Refer to Annexure A, pages 2 and 3.

[230] Refer to first and second items listed in Annexure A.

[231] Refer to NDIA's Closing Submissions at paragraph [13].

[233] Refer to Transcript 21 February 2018 on P-71.

[234] Refer to paragraph [6] of Mr Castledine's Reply.

[235] Refer to paragraph [7] of Mr Castledine's Reply.

[236] The Tribunal notes that Ms Parsons in her statement inserted a reference to "reflective practice" in the list of matters that she considered was expected from a person, like Ms Castledine, who was self-managing an NDIS plan.

[237] Refer to Transcript 20 December 2017 at P-224 and P-226.

[239] Refer https://www.ato.gov.au/individuals/income-and-deductions/deductions-you-can-claim/vehicle-and-travel-expenses/car-expenses/#centsperkm. This rate is 68 cents per kilometre from 1 July 2018 (or 66 cents per kilometre for the 2017-18 income year).