....................[SGD]....................................................

General Member N Purcell

NATIONAL DISABILITY INSURANCE SCHEME -- reasonable and necessary supports - Transitional Supports Rules - severe intellectual disability and associated impairments - new impairment manifesting as severe emotional dysregulation - issue of permanency of new impairment and section 34(1)(aa) - Risperidone treatment - risk of sexual abuse - request for parents to be paid supports - ratios of support - significant overutilisation contrary to section 46 - concerns about evidence of treating allied health practitioners.

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024

National Disability Insurance Scheme Act 2013 (Cth)

National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth)

National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024.

Beezley v Repatriation Commission [2015] FCAFC 165

Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 266 CLR 250

McGarrigle and National Disability Insurance Agency [2017] FCA 308

National Disability Insurance Agency v WRMF [2020] FCAFC 79

QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114

SMNL and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1512.

TZPQ and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 839

Operational Guidelines - Reasonable and Necessary supports, 28 March 2025.

Operational Guideline - Including Specific Types of Supports in Plans - Sustaining informal supports, 2 December 2024

1. The Applicant is a 13 year old boy who will shortly turn 14. He lives with his parents and 3 younger siblings, aged 4, 5 and 8. The family are originally from Melbourne but moved to a Gold Coast suburb in 2023. The Applicant lives with a severe intellectual disability and has been diagnosed with several other conditions including autism spectrum disorder (ASD) and attention deficit hyperactive disorder (ADHD). He experienced epileptic seizures as a younger child and was initially granted access to the scheme based on microcephaly which is a rare neurological condition characterised by a smaller head and associated developmental delay. He is physically small for his age.

1. The Applicant's two younger sisters recently became NDIS participants via the early intervention pathways because of concerns regarding developmental delay. The 5 year old sister is receiving psychology and speech supports and the 4 year old sister is receiving speech and OT interventions. These therapies are provided during school hours.1 Both sisters receive 5 or less hours of support worker assistance per week.2

1. The Applicant is largely non-verbal, with profoundly delayed receptive language skills. He attends a special school with three other children in his class and is assisted by an education support worker (teacher aide). He experiences regular emotional 'meltdowns' involving

several behaviours of concerns such as biting his knees, pinching, hitting his head, refusing to move, kicking, and spitting. The Applicant can be impulsive and requires supervision.

1. The Applicant's mother represented him in these proceedings and sought a range of additional supports which are outlined below. The Respondent estimates the value of the requested supports at approximately $1.6 million for a 12-month period.

1. The Tribunal had the pleasure of briefly meeting the Applicant who was observed to be wonderfully friendly and inquisitive. It is clear he cannot comprehend notions of paid support, let alone Tribunal proceedings taken in his name. For this reason, the Tribunal will largely refer to the Mother, rather than the Applicant, to make a clear distinction between the child representative and the participant.

1. On 17 October 2023, a delegate on behalf of the Chief Executive Officer (CEO) of the National Disability Insurance Agency (the Respondent) approved a statement of participant supports (SOPS) for the Applicant under section 33(2) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).

1. The same day, the Applicant's Mother sought internal review of the original decision pursuant to section 100(2) of the NDIS Act. On 20 December 2023, another delegate of the Respondent confirmed the original decision under section 100(6) of the NDIS Act (reviewable decision).

1. On 15 January 2024, the Applicant's Mother filed an application seeking external review by the Administrative Appeals Tribunal (AAT) pursuant to section 103 of the NDIS Act. The AAT was abolished on 13 October 2024 and the Administrative Review Tribunal (ART) began on the 14 October 2024. By virtue of the transitional arrangements, CBLG's application was automatically transferred to the ART.3

1. The Respondent approved several subsequent SOPS, the most recent of which was dated 19 May 2025 (Current Plan). Pursuant to section 103(2)(e) of the NDIS Act, the Applicant's

3 See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).

application for external review by this Tribunal is also taken to be a review of the decision to approve the SOPS in the current plan.

1. On 17 October 2023, the Respondent approved funding for a 12-month period in the Applicant's SOPS. The Mother utilised the Applicant's funds in approximately 6 months. On 2 April 2024, a new SOPS was approved for a 12-month period however these funds were exhausted within about 4 months. On 13 August 2024, a third SOPS was approved for an intended 12 months. These funds were exhausted within about 3 months. On 18 November 2024, a fourth SOPS was approved. The funds were spent within approximately 4 months. On 17 March 2025 a fifth SOPS was approved - this time for a period of 6 months. Funds were spent in approximately 2 months, leading to a sixth SOPS being approved on 19 May 2025 for a 3 month period.4 In addition to exhausting funds at a faster rate than permitted by the various plans, the Mother also overutilized almost $15,000 during this same period.

1. Section 46 of the NDIS Act requires NDIS funding to be spent in accordance with the plan.

1. The Mother contends she overutilized the Applicant's NDIS funds to keep him safe. The Tribunal will discuss this issue in more detail below.

1. The following supports were approved as reasonable and necessary on a pro-rata basis in the plan dated 19 May 2025:

(a) Assistance with daily living activities at the High Intensity Rate with 1:1 ratio comprising:

(i) 20 hours per week at the weekday rate (48 weeks per year)

(ii) 4 hours per week at the Saturday rate (52 weeks per year)

(iii) 4 hours per week at the Sunday rate (52 weeks per year)

(b) Assistance with Social, Community and Economic Participation at the high intensity rate with 1:1 ratio comprising:

4 A12 of JHB3, p267. See also Respondent's Further Submissions dated 21 July 2025.

(i) 4 hours per week at the Saturday rate (52 weeks per year)

(ii) 4 hours per week at the Sunday rate (52 weeks per year)

(c) 3 hours per week for Assistance with Personal Domestic Activities (cleaning) (48 weeks per year)

(d) Short Term Accommodation (STA) for 28 days per year at 1:1 ratio weekday rate

(e) Consumables funding, comprising:

(i) $1500 for the purchase of orthotics and wearable technology

(ii) $4452 for continence products

(iii) $150 for other consumables

(f) Specialist Behaviour Support comprising:

(i) 90 hours for specialist behaviour support

(ii) 30 hours for behaviour management plan and training

(g) 52 hours of Occupational Therapy (OT) over 12 months

(h) 52 hours of Speech Therapy over 12 months

(i) 12 hours of Dietician over 12 months

(j) 26 hours of Psychology over 12 months

(k) 16 hours of Exercise Physiology over 12 months

1. The parties also agreed to the following supports prior to hearing:

(l) 5 hours for Continence Nurse Assessment over 12 months

(m) 6 hours of podiatry over 12 months

(n) LAMP or Proloquo Augmented and Assisted Communication (AAC) application (subject to the provision of a quote)

(o) 100 hours of Specialist Support Coordination (level 3) over 12 months.5

1. The Mother seeks the following additional supports on behalf of the Applicant:

(a) Recognition of epilepsy as a secondary disability.

(b) The Mother be paid to provide support.

(c) Support worker assistance including 2:1 ratio during all non-school hours and a 1:1 ratio at night.

(d) 2 hours of key worker assistance per day

(e) 234 hours of Special Behaviour Support per year (additional 144 hours)

(f) 184 hours of OT per year (additional 132 hours)

(g) 220 hours of Speech therapy per year (additional 168 hours)

(h) 110 hours of Exercise Physiology or Physiotherapy per year

(i) STA at 2:1 ratio for the 28 days (20 days of weekdays and 8 days weekend rate)

(j) 154 hours of Allied Health Assistant per year

(k) 52 hours for Social Groups per year

(l) 48 hours of Music Therapy per year

(m) 52 hours of Psychology per year

(n) Nova Rugged - Liberator device totalling approximately $7000 - $8000

(o) Sensory necklaces totalling $822.72 per year

(p) Sustagen Hospital Formula totalling $1,455.00 per year

5 JHB3, p267-268 and Respondent's supplementary hearing bundle, p1.

(q) Other Assistive Technology totalling $500 per year

(r) Car seat x 2 (Carrot 300) totalling approximately $6000 - $7000

(s) Volkswagen Caravelle Van

1. At hearing, the Mother withdrew her request for an additional 22 hours of dietician support. She also withdrew her request for meal preparation and a tricycle.

1. A consistent theme throughout the hearing was the family's financial difficulties. The Mother was observed to attribute much of the blame to the Respondent, suggesting it was the Applicant's disability combined with insufficient levels of NDIS support that that led to the family's financial situation.

I also need to start work now as it's not feasible for me to stay home and support [the Applicant] full-time, unpaid, nor has it ever been. Me being home unpaid all these years and having to have to call my husband home from our family business to help me many times with [the Applicant] led to him not being able to run his business properly; this led to financial distress; we have lost everything, our once very successful family business (restaurant) of over 30 years, our house that was once paid off, and even our cars were repossessed. My husband will go bankrupt within the next three months or so. My husband is such a hard worker; it's so sad that all his hard work has come to nothing due to being extremely under-supported.6

1. A far more complex picture of the family's financial difficulties developed over the course of the hearing.

1. The family operated a Melbourne restaurant for many years and then took over a second restaurant in Shepparton in November/December 2020. Despite the COVID lockdowns during that period, the Father indicated sales at the Shepparton restaurant increased because of contracts with local hospitals. However, his 300-seat Melbourne restaurant, which had turned over $45,000 per week prior to COVID, dropped to around $16-17,000 per week.7 The Father acknowledged, "It was just a snowball effect. It's not just one particular item why things went bad in Melbourne".8 The Tribunal observes the family had their fourth child during the same period.

1. The Mother told the Tribunal it was embarrassing to have lost everything in Melbourne and her Audi SQ7 was re-possessed.9 She indicated the Father owed money to suppliers with potential links to the underworld - "people started standing over us... like I'm scared".10 The parents gave evidence they currently operate two take-away pizza shops on the Gold Coast.11

1. On 20 May 2025, the Mother sent an email to the Tribunal and the Respondent's solicitor attaching images from the Australian Taxation Office (ATO) regarding the family's taxation affairs. A letter dated 5 May 2025 from the ATO demanded payment from the Mother for

$126,000 of director penalties regarding unpaid GST, PAYG withholdings and director penalties in relation to unpaid superannuation guarantee.12 The other document dated 7 January 2025 showed the Family Trust owed $343,000 in unpaid superannuation guarantee.13 In her email, the Mother asked the Respondent's solicitor to write to the ATO admitting negligence. She proposed the NDIS to pay the $469,000 debt owing.

1. The Mother previously had to repay a Centrelink debt of $30,000, though it is unclear how long ago this was incurred.14

1. The Tribunal observes that for the most part, the Mother's preoccupation with financial difficulties was largely irrelevant and distracting to the matters to be decided. The Tribunal accepts that having four children - including one with high support needs, makes life more difficult particularly when a business fails.

1. The Mother told the Tribunal she has received multiple appointments with a lawyer from Legal Aid QLD prior to hearing, including assistance to prepare her opening submissions. She was unrepresented at hearing.

1. The Respondent was represented by Dr Michael Taylor of Counsel and instructed by Moray and Agnew lawyers.

1. The hearing was conducted by video over 6 days. The following witnesses gave oral evidence at the hearing on behalf of the Applicant:

(a) the Applicant's Mother

(b) the Applicant's Father

(c) Ms Mikaela Field - speech / feeding therapist

(d) Ms Sarah Hazell - psychologist

(e) Mr Jacob Bryant - physiotherapist

(f) Ms Peta Starr - support worker

(g) Ms KO - residential complex manager

(h) Dr Kasia Lewandowska - psychiatry registrar and family friend

(i) Dr Joanne Lawrence - paediatrician and Mother's friend

(j) Ms Crystal Cope - speech therapist

(k) Ms Emma Middlebrook - occupational therapist (OT)

(l) Ms Tenarra Campey - behaviour support practitioner

(m) Ms Laura Taylor - support worker

1. The parents were permitted to give their evidence together, with the Mother providing most of the evidence and the Father giving emotional support to his wife and clarifying certain matters along the way. The Father was unable to be present for the entire hearing.

1. The Respondent engaged two independent experts to conduct assessments and give oral evidence at the hearing - paediatrician, Dr David Pincus and OT, Ms Karli Rutherford.
2. Following Dr Pincus' evidence, the Tribunal requested one of the Applicant's treating paediatricians, Dr Glenn Harte give evidence. The hearing was adjourned for a week to hear evidence from him and support worker Ms Taylor. To accommodate Tribunal and Counsel availability, the hearing was then adjourned for approximately one month for closing submissions.

1. In arriving at its decision, the Tribunal has considered all the written evidence provided in the 'T-documents', the three joint hearing bundles,15 the Respondent's supplementary hearing bundle,16 the Respondent's further written submission dated 21 July 2025 and the oral evidence given at the hearing. The following documents were also admitted into evidence:

(a) E1 - Applicant's Statement of Facts, Issues and contentions (SOFIC) dated 13 June 2025

(b) E2 - Centrelink documents indicating an estimated combined family income of

$274,300 per annum as of 1 July 2025:

(i) First page

(ii) Second page

(iii) Third page

(iv) Fourth page

(v) Fifth page

(vi) Sixth page

(c) E3 - Australian Tax Office (ATO) documents:

(i) Overdue payment notice of $343,173.54Trustee for [Family] Trust, dated 7 January 2025, pages 1 and 2.

(ii) Debt notice of $126,678.70 owed personally by the Mother, dated 5 May 2025, pages 1 and 2.

(d) E4 - Applicant's written opening submissions (undated, prepared with assistance of a Legal Aid lawyer)

(e) E5 - Undated letter from Ms Kimberly Russell (mother of child who the Applicant's mother supports)

(f) E6 - Email from Mother to the Respondent and Tribunal dated 12 May 2025

(g) E7 - Transcripts Day 1 - 5

1. The Tribunal will refer to the evidence that is directly relevant to the determination of this matter, including an assessment of the weight that should be given to the evidence.

1. While the Tribunal's findings are made under sub-headings throughout the body of the decision, the findings are based on consideration of all the evidence. For reasons of brevity and clarity, not every piece of evidence is referenced immediately prior to each finding. It is inevitable that references to certain evidence appear in later sections of the decision, often in relation to another issue and/or in support of another finding.

(a) the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it;17 and

(b) the scope of the Tribunal's jurisdiction is determined by reference to the scope of the internal reviewer's powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.18

17 See Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]- [38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440; Frugtniet v Australian Securities and Investment Commission [2019] HCA 16; (2019) 266 CLR 250 at [51]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

18 QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].

1. The relevant provisions under the new Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.

1. An overview of the relevant law has been set out at Annexure A and should be read in conjunction with the reasons for decision.

1. Prior to hearing, the Tribunal calculated the number of capacity building / allied health or 'therapy hours' sought by the Applicant's mother:

(a) 234 hours of positive behaviour support

(b) 184 hours of OT

(c) 220 hours of speech

(d) 110 hours of exercise physiology / physiotherapy

(e) 154 hours of allied health assistant

(f) 52 hours of social group

(g) 48 hours of music therapy

(h) 52 hours of psychology

(i) 10 hours of dietician

1. Putting aside 154 hours for an allied health assistant, which the Mother's evidence suggests was primarily intended for developing resources, and 52 hours for a social group, which is

more properly conceived as social and community participation,19 the requested 'therapy hours' total 858 hours per year. Noting the Respondent had agreed to fund 4 weeks of STA/respite, the Tribunal inferred that 858 hours would be used over the remaining 48 weeks of the year. This equates to almost 18 hours per week or approximately 3.5 hours per weekday.

1. The Tribunal explained the hearing process to the Applicant's mother including the Tribunal's powers to decide what supports should or should not be included in the Applicant's SOPS in accordance with the legislative criteria. Following opening submissions from both parties, the Tribunal raised concerns that the calculation of therapy hours tended to suggest that the Mother's proposal was likely unworkable and/or impractical for a boy with a severe intellectual disability who is attending school between 8:30 and 2:30pm each day. As the mother was not legally represented, the Tribunal stood the matter down for approximately 30 minutes to allow the parties one final opportunity to reach agreement on the priority therapies to be included in the Applicant's SOPS. After the adjournment, the Mother indicated she did not accept the Respondent's offer in respect of any of the therapies in dispute and wished to proceed with her application in its entirety.

1. At the conclusion of the 4th day of evidence, the Mother told the Tribunal the following:

I will also say to you that the reason behind me wanting to get so much support as well, like my motive behind it was - I don't want him to do all these therapies, but I was just concerned that he wouldn't get much. So, I'm just like, I want to get a lot for him so that at least he has the best opportunity to develop.

Like, I want to be open and honest, but I don't, I don't want it to be used against me that he doesn't need it anymore, if that makes sense.20

1. During the hearing, the Tribunal observed the Mother struggle to articulate how the hours of therapy would work in practice - when appointments would be scheduled and how strategies would be implemented. She indicated the psychologist and feeding speech therapist could speak with the Applicant for about 15 minutes once per month. She stated, "I need a lot of help in the background, like when [the Applicant] is not there", suggesting a

19 The Tribunal observes that no details of the intended program or quote was provided.

significant portion of the requested hours would be utilised for parental coaching purposes. She added:

The problem with [the Applicant], Member, is that he doesn't comprehend what people say, so - You can't understand him unless you meet him. A lot of the times, if we're not there, then it's going to be pointless having anybody dealing with him at all.21

1. When Counsel asked how many hours of training the Mother had received from the Behaviour Support Practitioner, Ms Campie, she replied:

Well, you've seen how much she's - you've seen how many hours she's put through. So as many hours as she's put through, she's - I've received training, or it's gone into her writing letters. And it's been a lot. It's been extensive.22

1. Given the nature of the Applicant's disability, the Tribunal accepts that parental coaching is an important part of the therapeutic approach for working with the Applicant. Unfortunately, there was limited evidence that the therapists and parents have prioritised this strategy to date.

1. The Mother confirmed she had spent significant amounts of time (and therefore the Applicant's NDIS funds) obtaining reports for these proceedings and shared the reports across the treating practitioner group. She also indicated during her questioning of witnesses that she had provided them with a copy of Dr Pincus' report and told them Dr Pincus had advised her to 'forget about the Applicant' and focus on her other children.23

1. The Tribunal finds that the Mother exaggerated the need for therapy hours despite knowing the hours could not be properly utilised in a 12 month period, even allowing for significant amounts of parental coaching. This, along with inconsistencies in her evidence and her interpretation of certain evidence, undermined her credibility and reliability in these proceedings. It also made the task of deciphering the Mother's position on certain issues more complicated, as her evidence and position was observed to change repeatedly over the course of the hearing, both in relation to capacity building supports and support worker assistance.

23 For example, Transcript Day 1, p107, Transcript Day 2, p96 and p110 and Transcript Day 3, p51.

1. At the outset, the Tribunal wishes to address the issue of the Applicant's safety which was raised repeatedly by the Mother and many of the treating practitioners. It should go without saying that the Tribunal considers participant safety a matter of the upmost importance, particularly in applications involving child participants who live with severe intellectual disability. Volumes 3 and 10 of the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability outline the nature and extent of violence, abuse, neglect and exploitation faced by people with disability as well as risks associated with the provision of supports by some service providers, particularly to those with intellectual or cognitive disability.24 The Tribunal readily accepts the submissions from both parties that the Applicant's disability places him in a category of participants who are at greater risk of violence, abuse, neglect and/or exploitation.

1. The Mother raised several claims about the Applicant's physical safety in and around the rental property where they live, including:
   • Falling down the stairs
   • Risk of absconding, including when transferring to and from the car at home
   • Turning on stove hot plates
   • Unbuckling his seat belt during car trips

1. The Mother also contended that a key justification in favour of permitting her to be a paid support worker was the high risk of sexual abuse to the Applicant.

1. There was very limited evidence from the school where the Applicant spends significant amounts of time. The Applicant's former school principal in Melbourne wrote a two-line letter on 14 February 2025 stating the Applicant "received 1:1 support at all times. In the event of excursion, he received 2:1 support".25 A further letter dated 28 February 2025 added the words: "[The Applicant] also required 2:1 support when deregulating (sic)".26

24 https://disability.royalcommission.gov.au/publications/final-report

1. The Guidance Officer at the Applicant's current school wrote on 4 February 2025:

[The Applicant] struggles with emotional regulation, exacerbated by impulsive and aggressive behaviours, which frequently escalate into unsafe and harmful behaviours to himself and others. [The Applicant] has a history of disrobing, casting objects, making contact with educators and peers including, but not limited to biting, pinching, scratching, spitting, pulling hair, and screaming.

[The Applicant] requires supervision and support for toileting, and uses a monitored 'chill-out space' when heightened. When [the Applicant] is dysregulated at school, he requires 2:1 support. It can take a significant amount of time to calm and re-direct him; requiring additional staff to support in this space.

[The Applicant] is currently in a class of 4 students, a teacher and a full-time teacher aide. During school hours, [the Applicant] requires 1-1 supervision and support at all times, and 2-1 supervision for all transitions, and outdoor learning activities. Transitions occur multiple times per day.27 (Tribunal's emphasis)

1. An earlier letter from the school dated 25 July 2023 stated the Applicant "needs to be reminded to use the bathroom and always needs to be accompanied and he will play with the water and soap if he is not supervised. [He] needs to be assisted to wipe his bottom".28 (Tribunal's emphasis)

1. In the same letter, the Guidance Officer noted that the Applicant had limited understanding of personal space and will sometimes attempt to kiss his teachers on their bodies. In her view, teaching the Applicant about "boundaries is a priority for his personal safety".29

1. Despite the assertions of risk around the home, which are explored in more detail below, the Tribunal observes that the parents have not responded to issues of risk that fall clearly within their remit of control and responsibility. For example:

(a) There was no evidence the family has taken any steps to identify and rent more suitable housing, preferably one without stairs or one with a bedroom and bathroom located downstairs and/or a separate bedroom for the Applicant, noting his age.

(b) They have not cleared out the garage to allow support workers to park the car, allowing for safer transitions to and from the home.

(c) They have not installed relatively inexpensive stove locks, despite working with an OT and being aware of this recommendation.30

(d) They have not installed a buckle guard to prevent the Applicant from unbuckling his seat belt while the car is in motion, despite working with an OT, being aware of this recommendation and understanding the legal requirement for vehicle occupants to have a fastened seat belt during travel.31

(e) There was no objective evidence demonstrating the reported attempts by the Mother to engage support workers through a registered NDIS provider, despite the inclusion of funding for support coordination. This support is intended to help connect the family with registered service providers including those who can provide 'higher intensity' support workers.32

(f) There was no evidence the Mother has raised concerns with the school despite being "wary" of someone who may pose a risk to her son (discussed in further detail below). It was not apparent she had sought assurances from the school about how it safeguards her son during toileting and/or how they have worked to improve the Applicant's understanding of appropriate personal boundaries.

(g) There was no evidence of reports to the NDIS Commission or any other action taken by the Mother despite her evidence the Applicant and his younger brother were taken by a support worker to potentially unsafe homes without the parents' prior knowledge or permission.

1. It appears the Mother and Father have not made sensible, modest and relatively inexpensive adjustments around the home to improve the Applicant's safety.

32 On the 1 October 2024, the NDIS Disability Support Worker Cost Model Assumptions and Methodology 2024-2025 was amended, including an intensive and complex behaviour supports to the Price Limits Table.32 This change addressed concern that arose when the term 'challenging behaviours' was removed from the high intensity support definition.

See https://www.ndis.gov.au/providers/pricing-arrangements#disability-support-worker-cost-model

1. The Mother's apparent disregard of an individual who she seemed to suggest may pose an actual risk to the Applicant at school was observed to be incongruent and inconsistent with the stated level of concern about support workers and the risk of sexual abuse.

1. The Tribunal expresses no view on the accuracy of the Mother's perception of the risk at the school.

1. Dr Pincus is a general paediatrician with over 30 years of public and private practice. He is the Medical Clinical Governance Advisor for Pindara and John Flynn Private hospitals. Dr Pincus provides fortnightly mentoring to a group of 20 general paediatricians on the Gold Coast including clinical management review. He is a Clinical Adjunct Professor and sub-Dean at Bond University. Dr Pincus' practice encompasses all aspects of general paediatrics including children who require multidisciplinary management. He told the Tribunal he regularly provides long-term care for children with similar developmental disabilities to the Applicant.

1. In his report dated 11 March 2025, Dr Pincus opined the Applicant's severe intellectual disability and autism account for his slow developmental progress and "behaviours quirks" but they do not explain his severe behavioural problems. In his view, there has been a very strong medicalised or disease emphasis rather than a psychosocial approach to address the Applicant's severe emotional disturbance:

Most children with such difficulties are significantly more manageable. I have been provided with an overwhelming number of reports advising that [the Applicant] needs more help and assistance at home and in the community, yet very little questioning as to why he is so dysregulated.33

1. Dr Pincus also noted the "extreme focus on providing extra care workers" stating.

When I asked [the Mother] about a variety of different therapists such as psychologists, occupational therapists and dieticians and what they were working on, what their goals were, and how this was being achieved, I was advised that much of the appointments are taken up by discussions regarding getting more help rather than actually providing therapy as such. I believe this is instigated by [the Mother]

rather than the therapists and this was also my experience during the consultation where this was very much the emphasis. In fact, when I asked [the Mother] what gains [the Applicant] has made developmentally over the past four years, she replied that he has a few more words, he's a little happier, he will put a toothbrush in his mouth, he's safer in the water (which he really enjoys), and that he understands a few more words particularly the word 'stop'. For a child with an intellectual disability, my suspicion is that most of these gains have been made by his innate progress rather than through therapy.34

1. Dr Pincus supported psychiatric or psychological support for the Mother, Father and siblings. He noted the siblings are at risk of trauma because of the Applicant's behaviours.35

1. While he could not assess the Applicant's learning capacity during the consultation, Dr Pincus understood it to be severely impaired. He opined that the biggest barrier to implementing therapist recommendations is the Applicant's poor self-regulation. He was unsure about the level of communication between the family, therapists, support workers and the school in relation to the implementation of interventions across the Applicant's life:

For instance, it seems that the speech pathologist and the school are using different AACs [Augmented and Assisted Communication] and that neither of these are used by the family who instead have been provided with picture boards by an occupational therapist. Communication is a major issue for [the Applicant] and important for his self-regulation and this needs to be appropriately led by the speech pathologist in conjunction with the school and family. I have also previously discussed my concerns regarding the high levels of stress within the household and how these may contribute to [the Applicant's] already poor self regulation.36

1. Dr Pincus suggested a mental health approach should be trialled over a behaviour support approach.37 He recommended between 10 and 20 psychology sessions per year with a focus on working with the parents to develop new strategies. He noted the Applicant does not have the cognitive ability to work with a psychologist and the behaviour support plan requires an "entirely new approach".38

1. Due to the Applicant's severe intellectual disability, Dr Pincus indicated he did not expect capacity building therapies would significantly improve the Applicant's functional capacity though he believed gains could be made in communication and self-care skills. Dr Pincus

opined that increased emotional regulation would likely correlate with more participation in favoured activities and lower levels of supervision.39

1. Dr Pincus also questioned the practicality of the number of therapy hours requested, noting the right of the child to have opportunities for rest, leisure, and fun. In his practice, for a child receiving long-term therapy, he generally aims to limit interventions to one or two hours per week outside of school and a maximum of four hours.40 Dr Pincus considered the following options reasonable, but noted a decision would need to be made about the highest priority interventions:

(a) A speech pathologist working with the Applicant on an AAC for 1 hour per week.

(b) Possible consultation with a feeding therapist every 4 - 6 weeks.

(c) Music therapy to support emotional regulation (noting there is not a good evidence base for it).

(d) 10 - 20 sessions with a psychologist (mainly working with the parents).

(e) 1 - 2 hours of specialist behaviour support per week.

1. He did not consider OT and exercise physiology to be priority therapies at this time because the Applicant is "physically reasonably capable and where [the] best intervention really consists of allowing him outside to play with appropriate supervision".41

1. Independent OT, Ms Rutherford expressed similar views to Dr Pincus, noting it was her impression the parents did not have the time or emotional capacity to implement strategies:

In my opinion, it is not the number of sessions that [the Applicant] attends that is pertinent. This number of therapy sessions could be beneficial if they were consistently modeling and eliciting pro-social behaviour, emotional regulation and effective communication.42

1. Dr Harte commented on and recommended a wide range of therapies in his letter 17 December 2024 including sensory necklaces, incontinence products, nutritional supplements, podiatry, music therapy, physiotherapy, psychology and OT etc.43 The Tribunal observes there was minimal references to the Applicant's behaviours in the same 3-page letter. Dr Harte noted the Applicant experiences "prolonged inappropriate temperamental expressions in the floor of a car that could potentially be dangerous for drivers" and recommended "maximal supply of resources for behavioural management".44

1. Later in the hearing, the Mother claimed she did not have time during her last consultation with Dr Harte to discuss the severity of the Applicant's behaviours. Noting the number of issues addressed by Dr Harte following that consult, the Tribunal does not accept the Mother's claim.

1. At hearing, Dr Harte was somewhat more circumspect about his recommendations for therapy, stating:

To be totally honest, the ability to be able to say, an outcome measure by that intensity of treatment would be different, and to what degree, over a timeframe of say, a year, I can't tell you, scientifically, what that would do.45

1. Dr Harte was observed to make an unusual suggestion - that it may be more efficient to promote targeted development by engaging the Applicant with therapy rather than going to a special school. He did not think 6 hours of allied health support per week would be damaging to a child and considered the benefits would be more stability, mobility, and communication.46

1. While the Tribunal places significant weight on Dr Harte's evidence regarding the issue of Risperidone, it prefers the evidence of Dr Pincus on the issue of capacity building supports and therapy. Dr Pincus considered the evidence of the treating practitioners in detail prior to preparing his report, he had a more recent consult with the parents, and he was clearly more abreast of the current behavioural challenges experienced by the Applicant.

1. The Tribunal and the Mother are in absolute agreement that the Applicant should continue to go to school.

1. For reasons which will be explored in greater detail below, the Tribunal places significant weight on Dr Pincus' evidence (and Ms Rutherford's evidence in later discussion) and prefers his evidence over the treating allied health practitioners (also discussed further below) for the following reasons:

(a) He prepared his report in accordance with the Tribunal's guideline on persons' giving expert evidence;47

(b) He is a generalist paediatrician with over 30 years experience in public and private practice with children who have similar diagnoses and impairments to the Applicant;48

(c) His opinion was impartial, and he did not advocate for either party. On the contrary, he adopted a curious and problem-solving approach which was observed to be appropriately child-focused and independent;

(d) He provided fresh insights including a suggestion for a trial of Risperidone which he thought could significantly moderate the Applicant's severe emotional dysregulation.

1. The issue of Risperidone is discussed in greater detail below.

1. It was not apparent from either the documentary or oral evidence that any of the Applicant's treating practitioners had calculated the requested therapy hours. The treating practitioner reports did not contemplate the reality of the Applicant's attendance at or the family's engagement with the requested level of therapy on a weekly, fortnightly, or monthly basis. This was concerning in circumstances where practitioners had explicitly adopted or endorsed the recommendations of other practitioners in their own reports.

47 See also the practice direction for giving expert evidence dated December 2024 - https://www.art.gov.au/about/news-and-updates/new-practice-direction-giving-expert-evidence

1. The Mother indicated she had been told that all witnesses 'need to say the same thing'. The Tribunal observes that each of the Applicant's witnesses recommended or advocated for the parents to be paid support workers. In their letters and reports, they largely adopted or endorsed the Mother's position about the need for a 2:1 ratio of paid support without advancing clear reasoning based on their qualifications, training and experience.

1. Rather than strengthening the Mother's claim, the uniformity of opinion tends to suggest that treating practitioners and other witnesses advocated for the Mother's position. It was not apparent they had exercised independent clinical or professional judgement and/or confined their recommendations to matters within their remit of expertise. Further, the treating practitioners did not complete their reports in compliance with the Tribunal's guideline on person's giving expert opinion evidence, despite the Mother receiving extensive assistance from a lawyer.

1. The Tribunal places limited weight on the opinions and recommendations of treating practitioners in circumstances where it is evident that they simply repeated what the Mother wanted.

1. The Tribunal places some weight on their reported observations of the Applicant's behaviours and their understanding of the family including daily/weekly routines.

Ms Mikaela Field - speech / feeding therapist

1. Ms Field is a certified practicing speech pathologist with a focus on paediatric feeding.

1. In her two-page report dated 17 October 2024, Ms Field indicated the Applicant has mild oral dysphagia with a low risk of aspiration. She also assessed him as having a moderate to severe paediatric feeding disorder. She recommended weekly feeding therapy sessions at the Applicant's home.49 On 17 December 2024, despite not having commenced any feeding therapy with the Applicant, Ms Field wrote a more extensive report. In this report, Ms Field opined that the Applicant requires monitoring for aspiration.50 It is unclear on what basis she formed this opinion. She also stated:

[The Applicant] requires 2 support workes with him at all times to keep him safe from harm. At time when only 1 support worker has been available it has resulted in [the Applicant] harming his sibling, running away or removing his clothes in a public space when the support worker was completing a task for him such as paying for items, packing items away or needing to use the bathroom. (Errors and emphasis in original).51

1. Ms Field told the Tribunal she has met with the Mother on 3 occasions; first in October 2024 and most recently in July 2025, with a telehealth consult in between. She is yet to work directly with the Applicant and has not directly communicated with the other speech pathologist focusing on the Applicant's communication.

1. Ms Field's treatment approach involves making small changes to the food a client already eats. She explained because the Applicant has a restricted diet, it is important not to push too hard because he might stop eating some of his preferred foods.52 She also helps parents and support workers with menu planning. Ms Field told the Tribunal she regularly uses a 12-week program to trial interventions and will then "back out and let the family do their thing".53 She confirmed that a dietician is best placed to identify the types of food one needs to meet nutritional adequacy.

1. Ms Field indicated she had a vague idea of the other therapies being sought but couldn't provide specifics for all of them. She confirmed she had not witnessed the Applicant's behaviours of concern herself and her conclusion that the Applicant requires a ratio of two support workers was based on her discussions with the Mother.54

1. Ms Hazell confirmed she has been a registered psychologist for 10 years. She completed her Bachelor of Psychology with honours in 2014 from Griffith University. Ms Hazell is not a clinical psychologist which means she cannot diagnose conditions.

1. Ms Hazell told the Tribunal she has been working with the Applicant since early 2024 on a fortnightly basis. The Applicant usually attends her office for consultations. Her work is

focused on improving the Applicant's emotional regulation and building his capacity to engage socially in the community. She claims to have worked with the Applicant and the parents on issues relating to identifying anxiety and managing his hyperactive tendencies although this was not apparent from the 7 letters or reports authored by her.

1. In her second letter dated 18 April 2024, Ms Hazell focused on a need for 2:1 support worker assistance and overnight support.55

1. In her third letter, also dated 18 April 2024, Ms Hazell said "[r]esearch has shown that through self-monitoring and labelling emotional behaviours, individuals can gain a better understanding of their emotions and take measures to prevent more severe emotional issues, thereby improving their mental health outcomes".56 Noting the Applicant's severe intellectual disability, it is not clear to the Tribunal what strategies she intended to implement to achieve greater emotional regulation.

1. On 21 October 2024, Ms Hazell reported "[a]s a result of [the Applicant's] multiple disabilities, he has been unable to develop emotional recognition and regulation... his current emotional responses are limiting his access to the community and will lead to isolation".57

1. In her oral evidence, Ms Hazell emphasised the need for parents to help implement the psychological strategies as the Applicant is unable to implement them on his own. She noted psychology and behaviour support interventions can be complimentary, however she attempts to tackle the underlying anxiety which may contribute to behaviours of concern. Ms Hazell met the behaviour support practitioner, Ms Campey, a few days prior to the hearing for the first time.

1. In her sixth letter dated 6 March 2025, Ms Hazell wrote:

Whilst [the Applicant] needs the 2:1 support, both him, and his siblings, are being psychologically impacted by the support workers in their space as there seems to be a high turnover of staff. The constant staff changes have brought a degree of unpredictability which has interrupted the stability of the family home. [The Applicant]

has been isolated from his family as he is often with support workers, he will often cry, get physically aggressive or verbally indicate that he wants his mother. His siblings have also stated that they do not want lots of support staff in their house.

[The Applicant's] two young sisters also engage in behaviours such as shutting the door on support staff, telling them to go away, and other avoidant behaviours. After working with these children, my observations indicate these behaviours are out of character and seem to be a stress response... I believe that allowing [the Mother] to be a paid support worker for him will significantly reduce the psychological impact for the whole family. This will allow [the Applicant] to get the support he needs while reducing the number of people having to be in the family home.58

1. As the treating psychologist for the Applicant's two younger sisters, Ms Hazell indicated she did not see any issue or conflict of interest by initially recommending more support workers for one client (the Applicant) and then suggesting support workers were having a detrimental impact on her other clients (the younger sisters).59 In her view, there is no difference if the parents are paid as support workers because they are already doing the same kind of work for the Applicant.60

1. Ms Hazell was unsure of details regarding the Mother's proposal to hire a nanny to look after her other children in the event that she became a paid support worker for the Applicant. Ms Hazell indicated she did not consider a nanny would cause problems for the younger children. She could not explain to the Tribunal why the presence of another adult in the form of a nanny would be appropriate in the home, but not a support worker.61

1. Ms Hazell confirmed it was reported to her that support workers can only support the Applicant at a 2:1 ratio. She agreed with the proposition that one of the Applicant's parents could be one of the two supports she had recommended. When asked why she had included other treating practitioners' recommendations in her own report she replied, "So that's just the way I've kind of been taught how to write them, is to include, like, the overall recommendations in collaboration with others, yes".62 She agreed with the proposition that she had essentially accepted what everyone else said and wasn't necessarily expressing a clinical judgement on those recommendations by including them in her own report.63

1. Mr Bryant indicated he has been working with the Applicant for about 2 years. He authored a report in June 2023 and April 2025.64 His name was included in two other reports written by OT, Ms Middlebrook however the extent of his contributions to these reports is unclear.65 He recommends 104 hours of aquatic physiotherapy or twice weekly sessions.66

1. Mr Bryant told the Tribunal the Applicant has made some slow progress and can now follow basic instructions.67 For example, in March 2023, the Applicant "required full assistance to float, swim and climb out of the pool" and he would "not listen to any instructions given during the session, was very distracted and would continuously act on impulse".68 By June 2023, the Applicant "listened to one-step instructions when asked once or twice" and in April 2025 the Applicant could follow "instructions such as 'swim to the edge' or 'pick up the toys from the bottom of the pool'. [The Applicant] still act (sic) impulsively when given free time but tends to stay focused when given continual instructions".69

1. Mr Bryant told the Tribunal the Applicant can tread water and slowly paddle across the pool - about 15 meters. Mr Bryant explained swimming is great for building the Applicant's limb and core strength however he still struggles to pull himself out of the pool. Mr Bryant said he had not given the Applicant's parents an exercise program or routine to implement at home but regularly speaks with support workers. He explained that getting in and out of the pool would be a good strength-based exercise for the Applicant to practice at home.70

1. Noting the nature of his role as a pool-based physiotherapist, it is unclear to the Tribunal on what basis Mr Bryant made recommendations in his April 2025 report for support worker and respite hours, ratios of support, and for the Applicant's parents to provide active overnight support.71

Dr Kasia Lewandowska - psychiatry registrar and family friend

1. Dr Lewandowska became a generalist medical practitioner in 2020. She has medical qualifications from Notre Dame University. Dr Lewandowska is currently in her third year of a five-year postgraduate psychiatry training program and currently works at the Gold Coast University Hospital.72

1. Dr Lewandowska was the family's neighbour during 2023, before the family moved to their new rental property. She continues to catch up with the family on a monthly basis. She has not assessed the Applicant.73

1. In her letter dated 18 December 2024, Dr Lewandowska wrote:

Due to these complexities, [the Applicant] and his family require increased 2:1 support to address the significant risks of harm to himself and others, including his family, that stem from his behavioural challenges. We strongly advocate for his mother... to be included as one of his support workers. As a qualified support worker, [the Mother] possesses an unmatched understanding of [the Applicant's] specific needs, which even the most experienced professionals may find challenging to replicate.74

1. Dr Lewandowska reported the Applicant often requests his Mother to assist with personal care tasks such as using the toileting or bathing. She claimed the Mother being a paid support worker would safeguard the Applicant's dignity and reduce the stress associated with repeatedly building trust with new caregivers for intimate tasks.75

1. Dr Lewandowska appeared to the Tribunal to be unaware that parents providing paid support to their children under the NDIS is relatively rare and subject to operational guidelines. In any event, she opined the benefits of the Applicant's family providing support promoted his dignity and safety and outweighed the risks or other alternatives. Dr Lewandowska did not identify any risks associated with the parents providing paid support to the Applicant.76

1. Dr Lewandowska confirmed she was advocating for the Applicant and expressing personal views rather than making recommendations as a medical practitioner. She also told the Tribunal she had not reviewed the proposed roster or schedule and wasn't sure how it was intended to work in practice. She noted meeting many different support workers during the period she has known the family.77

Dr Joanne Lawrence - paediatrician and friend

1. Dr Lawrence is a registered specialist medical practitioner (paediatrics) and was first registered a general medical practitioner in 2005. She has a Bachelor of Medicine and Surgery from the University of Auckland.78

1. Dr Lawrence first met the Mother approximately 13 years ago through a mother's group. Dr Lawrence has not treated the Applicant but worked in the same Melbourne hospital as some of the Applicant's treating doctors before the family moved to Queensland. Dr Lawrence previously supported the Mother in some medical consultations with her colleagues to help bridge the medical knowledge gap. She noted the Mother's medical knowledge has evolved over the years.79

1. Dr Lawrence wrote a letter dated 9 November 2023 noting parental burnout in the context of a failing business, financial difficulties, and inadequate supports for the Applicant.80

1. Dr Lawrence told the Tribunal she had observed the Applicant over many years, with his communication and self-regulation difficulties becoming more apparent as he got older. Dr Lawrence recalled observing the Applicant hit his Mother and being surprised because she hadn't seen his physical aggression before:

[H]e was unhappy... I can't remember the details, but I remember being impressed how firmly she sort of redirected his attention, got him to a place where he felt safer, let him know that behaviour wasn't okay, but could also interpret that behaviour of him being non-verbal, [but] clearly having a stressor present.81

1. Dr Lawrence told the Tribunal it was not within her remit to comment on the appropriateness of whether the Mother should be a paid support or not. "I know that if [the Mother] can't be at home with [the Applicant] in a paid fashion, that does put more financial pressure on the family". Dr Lawrence indicated she had not encountered parents being paid as support workers before and understood it was an "unusual request". She also expressed the view that in circumstances where the Mother is a paid support worker for other people, it seemed a shame that she can't be there for her own child, particularly given the family's financial difficulties.82

1. Ms Cope is a certified speech pathologist with 5 years' experience. She previously worked as a behaviour therapist with autistic children.83 She began working with the Applicant in February 2024 and authored 5 reports since December 2024.84

1. Ms Cope indicated the Applicant's communication is like a child aged 18 months,85

describing his speech and language skills as follows:

[The Applicant] is minimally speaking and currently communicates through single words, grabbing items, facial expressions, and vocalisations and behaviours (i.e., screaming, crying). He is often only understood by familiar communication partners (i.e., family members, and classroom teachers). [The Applicant] has a severe speech sound disorder which impacts his ability to be understood through verbal communication. His speech errors mean that he is highly unintelligible, as he omits sounds at the beginning, middle, and end of words, and omits sounds in clusters.

[The Applicant] requires access to appropriate Augmentative and Alternative Communication (AAC) to enable him to develop effective, independent communication skills which allow him to achieve greater choice and control over his lifetime.86

1. Ms Cope told the Tribunal that her approach to working with the Applicant involves teaching him how to use an AAC device, modelling keyword signs and improving verbal communication. She explained the Applicant is unable to put words and sentences together.

For example, when the Applicant says 'McDonalds' it sounds like 'dog' which can be very confusing for people who don't know him well. An AAC software/application will assist the Applicant communicate his preferences and is installed on a physical/hardware device.87

1. A number of Ms Cope's letters were undated; however it appears her more recent recommendations include twice weekly speech sessions focused on receptive and expressive language through AAC, weekly speech sessions focused on swallowing and feeding, 5 hours for review and assessment reports, 10 hours for carer and parent training and 10 hours for stakeholder meetings.88

1. The Tribunal will address the balance of Ms Cope's evidence under the request for an AAC application and communication device below.

Ms Emma Middlebrook - occupational therapist (OT)

1. Ms Middlebrook graduated from Southern Cross University and is a registered OT. She has approximately 7 years' experience.89

1. Ms Middlebrook authored 12 letters or reports as part of these proceedings. She confirmed she had also written other letters for the Mother but wasn't sure if they had been submitted yet. The Tribunal acknowledges that some reports were in response to questions from the Respondent, noting the Mother requested new supports over the course of the proceedings.

1. Ms Middlebrook has not had direct contact with any of the Applicant's treating practitioners except the physiotherapist Mr Bryant (who works for the same organisation) and the behaviour therapist, Ms Campey.90

1. In her first report dated 3 October 2023, Ms Middlebrook recommended aquatic physiotherapy, OT, speech pathology, psychology, behaviour therapy, exercise physiology, podiatry, dietician and music therapy.91 In her oral evidence, Ms Middlebrook indicated to

the Tribunal she had formed her recommendations based on her observations, discussions with the Mother and the reports of other practitioners. She endorsed the other practitioner's recommendations, but alone recommended OT, music therapy, support coordination and assistive technology consisting of an iPad and "resources" totalling $2500. In relation to music therapy, she stated:

Because... in collaborating with his mum and also looking at [the Applicant's] needs and what he enjoys and what he responds to, that's why I recommended the music therapy because I thought it would help him in his everyday life.92

1. In the same report, Ms Middlebrook asserted that the level of risk associated with the Applicant's behaviours required 2:1 support "within the home and the community" and "6 hours of daily overnight support".93 She stated:

[The Applicant] has limited informal supports whom have limited capacity. [The Applicant] is at immediate risk of breakdown of supports. Without additional support, it is likely that a breakdown of supports will ensue and there is a potential care will be relinquished.94

1. At hearing, Counsel inquired as to how Ms Middlebrook formed her opinion and recommendations regarding the risk of parental relinquishment. The following exchange took place:

Counsel: But my concern is the source of this actual text. Do you recall relying on anything else?

Ms Middlebrook: That was my own opinion from my clinical education, from my clinical opinion. I haven't based it on anything else.

Counsel: Associate, can we go to document T-29 and specifically page 241, the numbered paragraphs.

This is a document from the behaviour support practitioner and the date of this is the 1st September 2023, which is approximately 1 month before your report. You'll see there at the bottom of that paragraph 'without additional support, it is likely that breakdown of supports will ensue and there is a potential care will be relinquished'?

Okay, now that is word for word what was included in your report?

Counsel: This next part of the cost to the government, that's not in your report, but the next paragraph and in particular the recommendation about support worker hours again is word for word?

Ms Middlebrook: Yes, that may have now that you've said that. I can see that. Yes, I may have got that information as well from the behaviour therapist report as well.

Counsel: [B]ut you will agree that this type of - let's just call it issue between reports coming from practitioners does raise a concern about the independence of recommendations that are being made?

Ms Middlebrook: Yes, I understand that.95

1. In her second report dated 13 November 2023, Ms Middlebrook recommended the Mother be considered a paid support worker for the following reasons:

(a) The Applicant's severe intellectual disability and inability to communicate his needs, anxiety or experiences, resulting in an increased risk of neglect and abuse.

(b) The Mother has been a victim of abuse resulting in high levels of anxiety when the Applicant is not in her care because he can't communicate his experiences.

(c) "For [the Applicant] to live in peace [the Applicant's] inherent 'rights to freedom of thought, conscience and religion or belief' must be considered when appointing an appropriate carer for him".

(d) "The Applicant shows strong personal views about his care, privacy and dignity relating to showering, toileting and other daily activity needs that he needs help with. [The Mother] also shows strong personal views about [the Applicant's] privacy and dignity in these areas".96

1. In her third report dated 18 December 2023, Ms Middlebrook recommended the Applicant have 2:1 support when not at school. She reported that the Applicant wakes up 4 to 12 times each night because of toileting accidents and suspected seizure activity.97

1. In her fourth report dated 23 April 2024, Ms Middlebrook recommended twice weekly OT sessions which would involve parental and carer guidance, monitoring and counselling. She also recommended quarterly liaison between practitioners to ensure a consistent team approach.98

1. In her fifth report dated 16 August 2024, Ms Middlebrook provided further explanation in support of the Carrot 300 car seat (discussed further below). She wrote the Applicant "is also able to unbuckle himself from the 5-point harness, creating a significant safety risk for himself and passengers in the car, as he unbuckles himself and moves around the car when in motion".99 Curiously, despite asserting that the Respondent's failure to fund the car seat places the Applicant and other vehicle occupants "at extreme and immediate risk", she did not recommend a buckle guard. The Tribunal understands a seat belt is a legal and necessary minimum requirement for safe travel in a vehicle.100 Ms Middlebrook confirmed in her seventh letter dated 20 September 2024, that "the use of a seat belt guard on a person with disability during transportation, that does not restrict their free movement, is not considered a restrictive practice, as it ensure the person is complying with state and territory laws".101 As already noted, there is no evidence the parents have installed a seat belt buckle guard.

1. On the 18 October 2024, Ms Middlebrook described how the Applicant's use of the Proloquo AAC at school has increased his communication skills. "When using Proloquo to communicate, [the Applicant's] behaviours of concern are reduced, his ability to complete tasks is increased, he is able to communicate his needs more effectively, and he maintains in a self-regulated state for longer".102 She did not provide any concrete examples beyond these assertions.

1. Ms Middlebrook indicated she has not been in the home since around December 2024. Over a 6-month period last year, she observed a high changeover in staff and a chaotic and inconsistent environment with respect to how workers provided support to the Applicant.103

1. The Tribunal asked Ms Middlebrook if she could provide an estimate of how much time had been spent on reports and letters for these proceedings. She replied, "god, there's so many".104 She indicated Legal Aid had sought more information and clarification about various matters but could not remember whether Legal Aid had contacted her directly. Ms Middlebrook confirmed she had not calculated the number of therapy hours requested.105

Ms Tenarra Campey - Behaviour Support Practitioner

1. Ms Campey graduated with a Bachelor of Psychological Science in 2023 and is currently undertaking an Honours year. She started work with Aruma as a behaviour support practitioner in 2023. She previously volunteered at Headspace and began direct support as a support worker in 2019.106

1. Like Ms Middlebrook, Ms Campey authored at least 10 documents that were filed in evidence. She confirmed at hearing that she had spent significant time preparing letters and reports for the proceedings.

1. Ms Campey prepared a behaviour support plan dated 24 April 2024.107 She told the Tribunal that Aruma doesn't have a behaviour support plan that focuses specifically on children and restrictive practices.108

1. In the behaviour support plan, Ms Campey wrote:

[The Applicant's] behaviours have been assessed through the collection and analysis of data over three weeks. The process involved the completion of a functional assessment to determine setting events, antecedents and appropriate positive support strategies. This information has been used to determine future support needs, goals and areas for skill development, teaching strategies and recommendations.109

1. Ms Campey told the Tribunal that the data collection process involved quantitative and qualitative data.

So interview and - you know, observations are part of our data collection process. There is often limitations with families because they're often under-resourced by the NDIS and do have limitations on what kind of data they can provide. So sometimes we are creative in how we get the information that we need to be able to formulate the plan.110

1. Ms Campey explained the data collection method should ideally focus on each behaviour, however it is impractical to collect data that way when there are so many behaviours.111 She confirmed data was collected in the period from 28 August 2023 to 17 September 2023,112 contained in a four-page document.113 The Tribunal did not receive any other behavioural data, said to be collected in a systemised manner.

1. Ms Campey indicated the behavioural data had been collected by family members. She agreed with Counsel that the handwriting appeared to be the same throughout the data collection document.114 The Mother had previously given evidence that it was her handwriting in the document.115

1. In a letter dated 1 September 2023, Ms Campey wrote in support of the Applicant's change of circumstances as follows:

[The Applicant] has been observed to have intense and frequent behaviours of concern and harm, both to himself and others. A scatterplot has been used to collect data over 3 weeks, and it was found that behaviours were occurring every hour for most hours.116

1. Significantly, this letter was written only a few days after the scatterplot data collection process was initiated and well before it was complete. When asked by Counsel about this discrepancy, Ms Campey indicated she often uses templates, suggesting the date may have been wrong on the template.117 Curiously, an almost identical letter was provided on 9 November 2023 with the added inclusion of 'frequency of behaviour' graphs.118

1. The Tribunal does not accept Ms Campey's explanation that her September 2023 letter was simply an error in the template. The Tribunal is satisfied that she expressed opinions and recommendations on data that did not exist at that point in time. The Tribunal observes that in her November 2023 letter, Ms Campey indicated the behaviours occur across several contexts including the home, bus, car, school and community, however she failed to acknowledge that the Mother was the sole source of the quantitative data. Given the rate of alleged behaviours across the day, there was a noticeable lack of reports or data from the Applicant's school - a place where he spends a significant portion of his week.

1. Ms Campey indicated she had conducted online training with support workers who had provided positive feedback on the efficacy of the strategies contained in her behaviour support plan.119 She noted:

The barrier to it is that when someone's having such frequent behaviours, it is incredibly difficult to remain in a regulated space to be able to co-regulate. Hence, him needing more funding and why the focus has been trying to get that funding, because there isn't a human that can remain regulated after experiencing so many behaviours of concern for periods of time.120

1. Ms Campey later clarified that she thought the support workers had received a condensed version of the behaviour support plan rather than the full plan. She was unsure whether providing a cloth for the Applicant to bite when he was engaged in self-injurious behaviours was included in either document. She recommended the following strategies in response to the Applicant's "crisis behaviours" which include biting his hand, kicking property and hitting his head on walls or floors:
   • - Safety first
   • - Give time and space to calm down
   • - Keep self, others and customer safe
   • - Monitor from a distance
   • - Seek additional supports if needed.121

1. Counsel took Ms Campey through a range of her suggested proactive strategies including the use of colourful cleaning tools and a spinning 'chore wheel' to make cleaning tasks

'more fun'. The Tribunal observed such strategies to be seemingly inconsistent with the Applicant's reported level of functional capacity. Ms Campey noted the Applicant could now put a toothbrush in his mouth because a support worker came up with the idea to play a favourite song as part of the routine. It was not apparent this innovation was prompted by her behaviour support plan.

1. On 24 April 2024, Ms Campey recommended an increase to the Applicant's behaviour support hours. She opined that an increase would result in "improved socially appropriate behaviours in the community, especially in shopping centres or other environments where incidental social interactions with strangers occur" and will assist him to "learn effective coping strategies and self-regulation techniques".122 Ms Campey also indicated she coached the Mother and was in regular contact with the Applicant's therapists through video conferencing and email.123

1. On 29 October 2024, Ms Campey prepared a 2:1 ratio workload document which set out examples of the various tasks that two support workers would complete over the course of a day. For example, during breakfast, two support workers could do the following:124

1. Support [the Applicant] to choose what he wants to eat for breakfast. This would involve [the Applicant] going to the fridge and pulling out what he likes and wants. Encourage [the Applicant] to choose food that is recommended by the dietician and speech therapist.

1. Prepare food items for [the Applicant], ensuring they are easy to manage.

2. Assist [the Applicant] in sitting at the table, using verbal prompts: "Let's sit

2. Show [the Applicant] how to pour milk into the cereal or spread butter

122 A21 of JHB1, p96-97. A24 of JHB1 appears to replicate the contents of A21 using a different font.

and have breakfast together!" Be aware that [the Applicant] will try to get every bit of utensils out of the cupboard and dump it. He needs encouragement to only get one out. Show [the Applicant] how to use utensils and guide his hand if needed (hand-over-hand for the spoon).

on bread, allowing him to participate where possible.

3. Encourage him to take one bite at a time, celebrating every success ("Great job, [name]! Let's take another bite.")

3. Physically assist with serving food onto [the Applicant's] plate.

1. Despite being a child with a severe intellectual disability, Ms Campey recommended the support workers encourage the Applicant to get his prescription medication from its designated spot.125

1. Support Worker 1 was tasked with assisting the Applicant to brush his teeth with assistance while Support Worker 2 was advised to "be ready" to use calming techniques and remove items which the Applicant might throw if escalated.126 The document did not, in the Tribunal's view, provide a compelling basis for 2:1 paid support in the home.

1. On the 11 November 2024, Ms Campey wrote a further letter purporting to explain the impact of the Applicant's behaviours of concern on his siblings which "are reduced when he is sufficiently supported, particularly in a 2:1 ratio".127 She cited a range of articles which referenced sibling bullying and sibling violence, however it was unclear whether the studies focused on behaviour that might be characterised as family violence, criminal behaviour or behaviours of concern arising from an intellectual disability. Ms Campey opined the effects on siblings would be the same. The following exchange took place:

Counsel: You've provided the summary throughout, and then you've got - there are four studies... And then the last one, Danchev and Wolk, in a study that's been published in Developmental Review, so siblings, conflict and bullying. You've read that study?

Ms Campey: I believe so. I would have. It's been some time, though.

Counsel: I'm going to put this to you, and I want to see what your response is. When I go to the journal Developmental Review and look at 2019 and indeed volume 51, there is no such article.

Counsel: When I go to Google and do an exact phrase search for the title 'Siblings, conflict and bullying', there's no such document. It's actually the blankest Google result I've ever seen. What is the source of this? Do you have the papers on file?

Ms Campey: I don't have the papers on file. Counsel: And the letter itself, you authored? Ms Campey: Yes, that's correct.

Counsel: So there's no element of generative AI being used in the production of this letter?

Ms Campey: I do use AI occasionally to edit my letters. Counsel: A particular program?

Ms Campey: Well, there's a couple that I use. I use Grammarly for one.

Counsel: Okay, because I am familiar with that one in terms of sentence structure and so forth. I'm thinking more in terms of the generation of content itself rather than the expression element of it.

Ms Campey: Sorry, you're going to have to be more clear.

Counsel: The use of generative AI to generate the content itself?

Ms Campey: Not generate content itself. Feedback, different ideas, making it into a coherent letter.

Counsel: The second study, so this is Bowes, Wolk and Jolson, et cetera, that study does exist but not in that journal. The citation itself is wrong.

Counsel: Just finally, Ms Campey, this letter, how long do you estimate it would take you to have written it?

Counsel: I've just received instructions that the Agency has looked at its payment records and that for this letter, 11 November 2024, there's

a payment claim for three hours at the full rate. Would that sound right?

Ms Campey: Doesn't mean that's all I did during that time. I often will, if I do charge, charged for an entire amount for work provided on that day. It doesn't mean that I've charged three hours for this document?

Counsel: So what other activities might you have undertaken at this time? Ms Campey: It really depends on what day is. I can't recall.128

1. Ms Rutherford noted in her report that the parents could not articulate behaviour management strategies to interrupt biting behaviour.129

Findings re treating practitioners and therapy hours

(a) Ms Middlebrook copied opinions and conclusions from other reports without attribution and held them out as her own. This was observed to be particularly egregious in circumstances where she opined that the Applicant was at risk of relinquishment by his parents.

(b) Ms Middlebrook added Mr Bryant's name to her reports in circumstances where it was unclear how he contributed to the formulation of opinions and recommendations contained in those reports.

(c) Ms Campey referenced an academic journal article that does not exist and incorrectly cited another article. She referenced the articles to support the credibility of the opinions and recommendations contained in her reports.

(d) Ms Campey expressed opinions or recommendations in relation to behaviours of concern and associated supports based on data that did not exist at the time of her September 2024 letter.

(e) Ms Campey expressed opinions and recommendations based on data solely recorded by the Mother despite indicating in her report that the data was obtained in

relation to different contexts over the course of the day. She misrepresented the objectivity of the data by mentioning the bus and school.

(f) Ms Campey used artificial intelligence (AI) to generate ideas in reports which expressed opinions and recommendations.

1. The Tribunal makes the following findings and observations of the treating practitioners and their evidence more generally:

(a) The intended therapy goals were observed to be abstract and/or unrealistic due to the Applicant's severe intellectual disability and functional capacity;

(b) There was limited evidence of the strategies implemented to date, either in direct sessions with the Applicant or indirectly through parental coaching;

(c) There was limited evidence of the Applicant's progress in terms of achieving functional goals;

(d) There was very limited interaction or collaboration between practitioners, with therapies occurring largely in isolation from each other;

(e) Practitioners routinely wrote support letters advocating for particular supports outside their area of practice, expertise and/or direct knowledge;

(f) Some practitioners appeared to prioritise the Mother's desire to obtain higher levels of support/funding by spending significant amounts of the Applicant's NDIS funds writing reports to that end, rather than working in a way to maximise functional outcomes for the Applicant.

(g) Collectively, the practitioners failed to establish a realistic, workable, and effective capacity building and coaching routine. This is deeply regrettable for the Applicant.

1. To make the correct or preferable decision, the Tribunal relies on allied health professionals providing opinions and recommendations based on accurate assessments, reliable data, clinical experience, and professional judgement.

1. At the conclusion of the hearing, the Tribunal invited the parties to make submissions on the 3 or 4 therapies they considered most important for the Applicant.
2. The Mother identified improved speech, eating and muscle tone as key functional goals.130

1. The Respondent submitted that communication focused speech pathology represents the most critical allied health intervention for the Applicant.131 It was further submitted that psychology and OT support should alternate on a weekly basis.

1. Dr Pincus' evidence on the issue of therapy was compelling. The Tribunal is persuaded that some of the Applicant's modest developmental gains to date are attributable to innate progress. The Tribunal also accepts that there is a clear role for some targeted therapy to support the Applicant's development of communication and capacity to perform tasks of daily living.

1. Owing to the Applicant's severe intellectual disability, the Tribunal is not satisfied that significant amounts of therapy will result in greater functional outcomes for him. It is also clear the Applicant's family does not have the capacity to properly engage with any more than about 3 regular therapies, noting all therapy interventions require a high degree of parental coaching and engagement for the Applicant to make progress. The Tribunal is firmly of the view that less therapy and less practitioners will be more effective and beneficial to the Applicant because it will allow for the development of more realistic goals, more targeted interventions, and greater collaboration between a smaller number of stakeholders. It will also assist the parents and support workers to focus on implementing key strategies and routines and reduce the demands on the Applicant's parents.

1. The Tribunal is satisfied that speech therapy focused on communication is the priority intervention for the Applicant. While inherently important for the Applicant to be able to express himself, the Tribunal considers there may be other desirable outcomes related to his behaviour if he is better able to communicate his wants and needs.

1. Ms Cope recommended 10 hours for carer and parent training and 10 hours for stakeholder meetings. Ms Middlebrook recommended quarterly liaison between practitioners of 1.5 hours duration. Ms Rutherford noted that people providing support to the Applicant need to utilise his communication system (once implemented).132 She recommended paid supports complete a structured behaviour training for using AAC to ensure competency.133

1. The Tribunal considers some additional hours for developing an AAC training program for the parents and support workers will scaffold this important intervention for the Applicant. The Tribunal observes that many workplaces now record professional development trainings so that staff can be upskilled in a flexible manner. It is clear AAC training resources need to be developed in such a way that they can be deployed regularly to new staff and reviewed by existing staff as required. Support workers are currently scheduled to provide support to the Applicant during speech therapy sessions. This provides a natural and consistent opportunity for support workers to observe and practice utilising the AAC with the Applicant while the speech therapist is present.

1. Accordingly, the Tribunal finds 8 hours for the development and delivery of AAC training resources and 8 hours for quarterly stakeholder meetings/training between the speech therapist, OT and psychologist (and ideally the parents, regular support workers and a school representative) are reasonable and necessary supports for the following reasons:

(a) The supports are necessary to address the communication needs of the Applicant arising from his intellectual impairment (section 34(1)(aa)).

(b) The supports will help him improve his goal of improved communication because those around him will be able to utilise the AAC competently and consistently and as well as other therapeutic strategies (section 34(1)(a)).

(c) The support will assist him to participate in social activities by being able to express his preferences (section 34(1)(b)).

(d) The support is value for money because appropriate training resources, like an AAC demonstration video, can be used in a flexible and ongoing manner by anyone supporting the Applicant (section 34(1)(c)).

(e) The support is effective and beneficial because the Applicant relies on parents and support workers to model consistent and competent use of an AAC. It is also critical that the therapists collaborate and share reflections and feedback in a structured manner (section 34(1)(d)).

(f) The support takes account of what is reasonable to expect families to provide. Once trained, the parents will also be responsible for overseeing consistent use of an AAC by support workers and other stakeholders (section 34(1)(e)).

(g) The support is not excluded by Schedule 2 and is a therapeutic support under Item 34 of Schedule 1 of the Transitional Supports Rules. It is a NDIS support (section 34(1)(f)).

1. The Tribunal finds that 68 hours of speech therapy, predominantly for communication, is a reasonable and necessary support.

1. The Tribunal is satisfied that psychology support has greater potential than behaviour support to assess and respond to the factors which may be contributing to the Applicant's behaviours. The Tribunal agrees with Dr Pincus' observations that the current behaviour support requires an entirely new approach and that engagement with a psychologist provides an alternative pathway to exploring the Applicant's behaviours. It would seem an important part of a psychologist's focus should involve working with the parents to better understand triggers and to implement a consistent set of strategies to support the Applicant's emotional regulation.

1. The Tribunal recognises the importance of parental coaching, particularly in circumstances where the Applicant is non-verbal. The Tribunal observes that parental coaching is distinct from psychological support. It would seem that the Mother, in particular, would benefit from seeking assistance to work through past traumas she disclosed as part of these proceedings and which may be contributing to her own experience of emotional

dysregulation, observed to occur with some regularity during the hearing. Such support can be obtained through a mental health plan.

1. The Tribunal agrees with the Respondent that 26 hours of psychology support is a reasonable and necessary support. For the reasons provided above, the Tribunal is satisfied an additional 8 hours for quarterly stakeholder meetings/training is also reasonable and necessary.

1. Finally, while the Tribunal has concerns about the way OT funding was utilised by the Applicant's Mother and Ms Middlebrook, the Tribunal is keenly aware of the very positive interventions that a skilled and experienced OT could make in the Applicant's life. Whether it be a focus on developing and implementing routines, increasing the Applicant's capacity with one or two personal care tasks (such as toileting), or working on strategies for more compliant transitions and travel, the Tribunal is firmly of the view that some very specific and measurable goals need to be identified and focused on for the next 6 - 12 months. As Dr Harte indicated, "if a reward is not being reaped" from an intensive form of therapy, then it would be questionable why one would continue.134

1. The Tribunal is satisfied 26 hours, as proposed by the Respondent, is reasonable and necessary and can alternate with fortnightly psychology sessions. For the reasons provided, 8 hours for stakeholder meetings/training is also reasonable and necessary.

1. 12 hours of dietician support was agreed to by the parties.

1. Dr Pincus helpfully summed up the evidence on the issue of the Applicant's eating and growth:

[The Applicant] currently sees two different paediatricians. One, Dr Hannah Rodgers, works at the public hospital Gold Coast University Hospital and sees [the Applicant] twice yearly where he has his height and weight measured and she is in charge of monitoring of his growth. The other paediatrician, Dr Glenn Harte at

Leading Steps Paediatric Clinic, sees [the Applicant] for overall reviews yearly and apparently has offered a different opinion to that of Dr Rogers regarding the necessity for intervention for [the Applicant's] growth. I note from Dr Harte's consultation notes that he considers [the Applicant] to be growing steadily although well below the growth chart (which is in fact his pattern since birth), and that he has an acceptable covering of subcutaneous fat.

[The Applicant's mother] indicated to me that Dr Rogers is suggesting consideration of PEG feeds for [the Applicant], this was not indicated in any of the correspondence that I received... From the information supplied to me I would suspect that [the Applicant's] growth difficulties relate to his underlying syndrome and that he currently just requires some supplementation of calories as has been suggested.135

1. The Tribunal is not satisfied on the evidence that a PEG has been recommended or that it is needed. The Tribunal is satisfied on the current evidence that a dietician can properly assess the nutritional adequacy of the Applicant's diet. This would routinely involve suggestions for increasing caloric intake where necessary. The Tribunal considers the request for feeding therapy a duplication of this support, prohibited by Rule 5.1(c) of the Supports Rules.

1. The Tribunal is satisfied on the evidence that 12 hours of dietician support per annum is reasonable and necessary.

1. Accordingly, the Tribunal finds the following therapy hours are reasonable and necessary:

(a) 68 hours of speech therapy comprising:

(i) 52 hours for weekly sessions

(ii) 8 hours for developing and delivering AAC training resources for parents, support workers and/or other therapists

(iii) 8 hours for quarterly meetings/trainings with psychologist, OT, parents (and ideally school)

(b) 34 hours of psychology comprising:

(i) 26 hours for fortnightly sessions

(ii) 8 hours for quarterly meetings (as above)

(c) 34 hours of OT comprising:

(i) 26 hours of fortnightly sessions

(ii) 8 hours for quarterly meetings (as above)

(d) 12 hours of dietician support

1. The Tribunal is not satisfied that the remaining requests for specialist behaviours support, exercise physiology / physiotherapy, feeding therapy, music therapy, allied health assistant and/or social groups are likely to be effective and beneficial having considered the expert opinions of Dr Pincus and Ms Rutherford in accordance with Rule 3.3 of the Supports Rules. Further, the Applicant and his family do not have the time and/or capacity to engage with such a high level of therapy. Rather than assist, the Tribunal is satisfied these therapies are more likely to distract the parents and support workers from focusing on the most critical capacity building supports at this point in the Applicant's life. Section 34(1)(d) is not met in relation to any of these therapies.

REQUESTS IN RELATION TO SUPPORT WORKER ASSISTANCE

1. The Mother first set out her desire to be a paid support in a letter dated 10 November 2023.136

1. In the Applicant's Statement of Facts, Issues and Contentions, dated 13 June 2025, the Mother set out her requests as follows:

(a) Support worker assistance during all non-school hours

(b) A 2:1 ratio of support worker assistance during all non-school hours and a 1:1 ratio of active support at night

(c) A key worker to manage team/stakeholder meetings, hiring, rostering, making resources and data collection for 2 or 3 hours per day Monday to Friday

(d) The mother and father be paid as support workers.

(e) The Applicant be supported in STA for 28 days at a 2:1 ratio (rather than a 1:1 ratio)

1. The Tribunal has ascertained an average weekly schedule based on the Mother's evidence:
   • The Applicant gets up between 5 - 6am most mornings. He goes to school from 8:30 until 2:30pm. The parents or support workers drive him to school when he refuses to go on the bus.
   • On Tuesday, the Applicant finishes school at around 2pm to attend 'Riding for the disabled' horse program which is located about a 30-minute drive away.
   • The Applicant has speech therapy with Ms Cope on Monday mornings from 7:30am - 8:30am.
   • He was attending an OT gym on Monday afternoons from 3:00 - 4:00pm.
   • Prior to March 2025, he attended aqua physiotherapy each Thursday afternoon per week for 30 minutes.
   • The Applicant enjoys being out in the community and particularly likes going to the beach, a fauna park, and the shopping centre.
   • The Applicant's 8 year old brother attends after-school care, does soccer training on Tuesday and Wednesday afternoon, plays soccer on Saturday, has weekly swimming and piano lessons and tutoring. He also plays with friends in the complex where they live.
   • In the evening, the Mother cooks dinner, prepares school lunches for the next day and helps the siblings to bath, complete their homework and get ready for bed.
   • The family eats dinner at around 6:00pm most nights. The Applicant is a "fussy" eater and eats a separate meal.
   • The children are in bed between 7:30 and 8:30pm most nights.
   • The Father usually gets home after the children are in bed.
2. The Mother indicated the Applicant requires constant supervision when at home. She said the Applicant has "fallen down the stairs four times".137

1. She claimed her children are not getting the attention they need because the Applicant is underfunded138 and she is constantly busy training new support workers.139

1. The Mother told the Tribunal she has spent significant amounts of time preparing for these proceedings, suggesting it had consumed 95% of her time and taken her away from the children.140 There was limited evidence about what the Mother does while the children are at school although it would invariably involve attending to other necessary household tasks. She also indicated she was intending to do marketing for the family business once the proceedings concluded.

1. The Father's employment status and work hours, and therefore his capacity to support the Applicant, was somewhat unclear and contradictory. At the time of the assessment with Ms Rutherford, the Father was reported to work from 8am to 4pm in sales and then in a pizza shop until about 10pm.141 On the first day of the hearing the Tribunal was informed the Father was no longer working in sales. The Mother stated in relation to their take-away business:

But we're running at a loss. We have to put staff on all the time because [the Father] hasn't been able to work. He has to keep coming home to pick up [the Applicant] so I can pick up the other kids. And it's not even busy enough to even put on extra staff.142

1. On the third day of the hearing, the Mother noted they were contemplating selling some shares and described the Father's work as follows:

So yes, he does have flexibility in the morning, but there's a lot of prep that he has to do during the day as well that starts at about maybe - I don't know. Depends on what's needed, but it could start from 11 am. And he also comes back late from the pizza shop... [like] 9, 10 o'clock.143

1. The Mother was asked to provide Centrelink records to clarify which payments she currently receives. The records reveal that she receives the family tax benefit and a carer payment, presumably recognising that she provides constant care to the Applicant and that this severely restricts her capacity to undertake paid employment.144 The documents also reveal the Father has been in receipt of job seeker payments since at least 7 May 2025. The parents did not confirm when the Father first started receiving these payments.

1. Two support workers provided oral evidence about the Applicant's support needs, behaviours and routines. Ms Peta Starr first became a support worker in October or November 2023 and began working with the Applicant in January 2024.145 She is currently studying a Certificate 3 in Individual Support. She generally worked 4 mornings and 2 afternoons per week with the Applicant.146

1. Ms Laura Taylor completed a Bachelor of Exercise and Sports Science from Bond University in 2023 and has finished the first year of a two-year Masters program in OT.147 She became a support worker in January 2024 and initially supported clients with mental health issues and then teenagers with autism or ADHD who live at home. She began working with the Applicant in August or September 2024.

1. Ms KO also gave oral evidence. She is the acting resident manager and caretaker of the residential complex where the Applicant's family currently reside. Ms KO lives in a townhouse next door to the Applicant and has known the family since January 2024.148

1. The Tribunal considers it useful to first set out the evidence of independent OT, Ms Karli Rutherford following her functional capacity assessment with the Applicant.

1. Ms Rutherford graduated with a Bachelor of Occupational Therapy from the University of Queensland in 2001. She is registered with the Australian Health Practitioner Regulation

144 As required under section 197B of the Social Security Act 1991.

Agency (APHRA) and had provided a range of OT services across public and private practice to children and adults with disability. For the past 5 years, she has conducted independent assessments and reports for medicolegal purposes.149

1. Ms Rutherford conducted an independent assessment with the Applicant and his parents on 3 March 2023 at their home. She completed a report dated 31 March 2025.150

1. Ms Rutherford reported the Applicant presents with severe autism and significant intellectual impairment. She noted the Applicant spoke in single words and has a very limited vocabulary.151 He can complete "simple, well-practiced skills like eating and putting on shorts, but still requires guidance and at times, some physical assistance.152 Ms Rutherford also observed the Applicant walk up and down the stairs using a reciprocating gait and the handrail.153 The Tribunal understands this to mean the Applicant walks up the stairs in a typical manner.

1. The parents told Ms Rutherford that the Applicant does not use an AAC device and thought he was using a low-tech PODD at school.154

1. Ms Rutherford observed the Applicant spit on two occasions when told he couldn't see the kangaroos and knocked over cups of water without regard to the mess. He also bit his legs or pinched his parents' arms when they told him he couldn't go out or refused to give him a phone. The Applicant turned on a stove top, threw unwanted items across the room, banged a phone on the table and failed to look for traffic as he walked through the unit complex to the pool.155

1. Ms Rutherford reported that the Applicant stands in the shower but requires assistance to wash thoroughly and effectively. He also requires guidance and assistance to perform dressing tasks and use a toothbrush:156

[The Applicant] frequently smears his faeces on the wall if inadequate supervision is provided. He requires prompts to go to the toilet and assistance to wipe but is generally continent during the day.

1. She opined that although the Applicant could acquire the physical skills to attend to his self-care, he will require prompting and 1:1 support until at least adulthood.157 Ms Rutherford also stated:

[The Applicant] will require consistent, structured, and patient practice of all self care tasks to enable increased independence. It is unlikely that his parents can provide this at present, due to their feelings of overwhelm and busyness of the family home - [the Mother] caring for three younger siblings, and [the Father] working two jobs. These supports would be best provided by paid supports. However, [the Mother] has expressed concerns about staff providing personal care to [the Applicant].158

1. The Father told Ms Rutherford that he often comes home at night to mess throughout the kitchen and dining room following the Applicant's attempts to access food.159 The Tribunal infers that these attempts are unsupervised.

1. The Mother told Ms Rutherford that the Applicant takes melatonin and goes to bed at 7pm, waking a minimum of twice per night but frequently 4 times. "If he has access to a device, he will return to bed and watch clips for 30-60 minutes before going back to sleep".160

1. Ms Rutherford opined that the distance the Applicant can walk is largely dependent on his interest and motivation. "His parents reported he can attend the sensory gym where runs and jumps for an hour before fatiguing".161 However, he is also reported to fatigue when in the community, indicating he wants to be pushed in a trolley. When he was smaller, he would sit in his sibling's pram and pull down the hood to cover his face.162 Ms Rutherford opined that the provision of a buggy may assist the Applicant to rest, retreat and recharge when out in the community and thus reduce behaviours of concern.163

1. At the time of the assessment, the Applicant was taking the bus to and from school on Mondays, Wednesdays and Fridays, arriving home at around 3:30pm. Support workers picked him up from school at 2:30pm on Tuesdays and Thursdays for aqua physiotherapy and horse riding.164

1. Ms Rutherford noted it was legal and common practice for 13 year olds to be left at home unsupervised for an hour or two after school or on weekends, however this is not an option for the Applicant who requires supervision:

Providing [the Applicant] with additional supports each afternoon/evening would allow [the Applicant] to engage in his activities of choice, while enabling [the Mother] to take the other children to their activities. It would also allow [the Mother] to safely prepare dinner and assist the younger children with their homework.165

1. Ms Rutherford expressed the view that while the Applicant requires supervision, the constant presence of paid or overly cautious support attempting to interact may interrupt the Applicant's potential to direct his own experience and explore his own environment.166

1. Ms Rutherford's recommendations regarding day-time support worker hours can be summarised as follows167:

(a) 1:1 paid support for 2 hours every morning (with a parent present if second support required)

(b) 2:1 paid support for 3 hours on weekday afternoons for community participation (e.g. 2:30pm - 5:30pm)

(c) 1:1 paid support for 2 hours on weekday evenings (e.g. 5:30pm - 7:30pm)

(d) 2:1 paid support for 4 hours on weekends for community participation (e.g. 9am - 1pm)

(e) 1:1 paid support for 6.5 hours on weekends for family activities and evening routine (e.g. 1pm - 7:30pm)168

1. This equates to 7 hours of paid support (4 hours at 1:1 and 3 hours at 2:1) on weekdays and 12.5 hours of paid support (8.5 hours at 1:1 and 4 hours at 2:1) on Saturdays and Sundays.

1. Based on the Mother's reports of the Applicant's night time activity, Ms Rutherford advised active overnight funding would be appropriate if he was awake 4 times or more and sleepover funding would accommodate nights involving up to 2 hours of active support.

1. Ms Rutherford supported a current ratio of 2:1 for the Applicant's attendance at Autism camps. She noted it was unlikely the Mother would agree to his attendance at these camps due to her concerns about the risk of abuse.169

1. Ms Rutherford opined that in her experience, 'Intensive and Complex Behaviour' support workers are more proactive in anticipating a participant's needs and intervening to prevent escalation of behaviours. She noted they are "more confident in their own abilities and use of strategies and therefore are more able to remain more regulated themselves".170 She is of the view that appropriately trained and qualified support workers would reduce the Applicant's need for a 2:1 ratio of support for community access over 6 to 12 months.171 She also opined that the presence of 2 paid support workers in the home would negatively impact his wellbeing.172

1. As the Applicant shares a room with his younger brother, Ms Rutherford thought it inappropriate to have a non-family member provide this support. She opined that the Mother providing paid night-time supports would result in less conflict between paid and parental roles.173

1. The Tribunal found Ms Rutherford to provide insightful, creative, and practical recommendations. Her opinions were observed to be independent and based on extensive experience working with children and families. Her opinion, understandably, also relied on the accuracy of the information provided by the Mother. Ms Rutherford helpfully considered the benefits and risks of different support options and provided persuasive reasoning when giving her evidence. The Tribunal places significant weight on her opinions to the extent that they are consistent with other findings by the Tribunal, for example, in relation to the issue of overnight support.

Request for support worker assistance and 2:1 ratio (including for STA)

1. The Mother submitted the Tribunal should separately determine the number of hours of support worker assistance that is reasonable and necessary before deciding the question of who provides the support.

1. In her opening submissions at hearing, the Mother proposed an alternative schedule of support worker assistance to that contained in her SOFIC. She proposed:

(a) 7:00am - 9:00am at 2:1 ratio each weekday (2 hours)

(b) 2:30pm - 9:00pm at 2:1 ratio each weekday (6.5 hours)

(c) 7:00am - 9:00pm at 2:1 ratio each Saturday, Sunday, public holiday and school holidays. (14 hours).174

1. On the second day of the hearing, the Mother indicated one support worker would be sufficient for the morning shift, with either herself or the Father "helping out like where needed". She said it would be "nice if someone could just stay for maybe half an hour or whatnot to just help tidy up any of [the Applicant's] mess".175

1. The Mother claimed that the Applicant has a 2:1 ratio at school. However, it was later clarified that the Applicant has access to an education support worker and the teacher

provides additional support during periods of heightened behaviour.176 There are a total of 4 students in the class.

1. The Mother claimed the Applicant is unsafe in the community unless he is always accompanied by 2 support workers. The shift notes paint a more complex picture which includes two support workers being used at the home with some regularity. For example:
   • - Having 2 support workers was beneficial: one attended to his needs while the other parked the car safely" and "Bathroom breaks are not feasible with one-to-one support due to his flight risk.177

• - The client displayed a behaviour of sitting on the floor in the kitchen when we tried to give him a bath. This behaviour was noted and managed calmly.178

• - Having 2 supports was beneficial in the community to ensure he always had eyes on him.179

• - Although there were no issues at the shops, he still required both SW to be with him at all times as sometimes we need to pay for things or go to the toilet and he can wander while doing so.180

• - Client maintained appropriate behaviour throughout shopping trip. Transitions between stores were smooth.181

• - While he was in the pool, Laura and I took turns looking after him and getting a few things done around the house - like making his food and doing some cleaning. It was also nice to have a quick moment to ourselves to use the restroom.182

• - We spent about an hour at the shops and then came home to the house. In the car on the way home, approximately 200 m from the house, he slipped down under his seatbelt. He was instructed to sit back up correctly but did not follow these instructions. When we pulled into the driveway, he started to bite himself and kick his legs, taking off his shoes and throwing them.183

177 A86 of JHB2, p421. The exact same note was repeated 2 days later - see page 422.

• - At one point, during supports [the Applicant] ran out of the house and into his neighbours property so that he could say hello to their dog. Myself and his other sw followed him and tried to explain that the dog was sleeping. [The Applicant] then became upset and began to hit his head on the ground, pick things up and throw them around, kick the screen door and kick us.184

• - I arrived at [the Applicant's] house. When I got there the other support opened the door and [the Applicant] immediately ran into the pool area fully clothed and jumped in the pool. He did not look when crossing the road in the complex, resulting in safety issue... When we got to the zoo, he did not follow the instructions to wait in the queue; instead, he ran off away from the other support and myself... Whilst at home in the afternoon, [the Applicant] went to the neighbour's house three times, opening the gate without warning to the homeowner and without checking that their 18-month old was not running out of their gate.185

• - Working alone created a serious safety issue that needs immediate attention. I had to leave the client unattended inside the house while parking the car after the behavioural incident (kicking, head banging and biting his sock).186

1. The shift notes reveal that on occasion two support workers struggled to manage the Applicant's behaviours. The Tribunal is of the view that this may demonstrate worker inexperience rather than inherently 'out-of-control' behaviour from the Applicant. The Father's evidence suggests he takes the Applicant out in the community alone. Further, the Applicant was seemingly able to wander off to the neighbour's home on 3 separate occasions without supervision despite the presence of two support workers.

1. On the 30 March 2025, a support worker (who did not give oral evidence) stated she was kicked on 3 separate occasions, slapped across the face on 3 separate occasions and the applicant hit his head on the ground on 3 separate occasions during one shift. No other details were provided regarding antecedents, context or how she responded.187 A striking feature of the shift notes was the general absence of any explanation about how the support workers respond to the Applicant's behaviours and emotional dysregulation and/or what appeared to 'work' on the days when he did not demonstrate any significant behaviours.

1. The Mother acknowledged in her evidence that NDIA staff have repeatedly suggested she use registered providers because there is greater oversight and regulation of workers. Funding for intensive and complex behaviour support workers was included in the Applicant's plan from March 2025. However, the Mother was observed to repeatedly characterise this option as requiring her to leave the Applicant with strangers.188 It was unclear to the Tribunal how she formed this view, particularly in circumstances where there was substantial evidence about high staff turnover when the supports were plan managed and she was using unregistered providers.

1. It was apparent to the Tribunal that with any new support worker - registered or unregistered - there is a necessary period of getting to know one another and building trust. The Tribunal acknowledges it takes some time for new workers to understand routines and learn strategies to work with the Applicant effectively. The Mother filed a single undated letter from the Applicant's Support Coordinator requesting an additional 100 hours of support coordination.189 The Support Coordinator was not called to give evidence and there was no objective evidence of her attempts to connect the Applicant with registered providers and/or workers qualified to provide intensive and complex support.

1. The Mother claimed that two support workers are required to drive the 5 to 10-minute trip to school and "no company will take him unless there's two people in the community".190 When arriving home, she explained that one support worker needs to park the car while the other support worker helps the Applicant to get out of the car. The Mother explained there is no visitor car park in the complex. She showed the Tribunal (by video) that the family's garage, attached to the home, is full of belongings.191

1. Ms Starr explained the Applicant started refusing to get on the bus around April 2025 but is not sure what caused this change. She told the Tribunal that one support worker is usually sufficient in the mornings however if the Applicant refuses to get on the bus, then a second support worker is required to drive him to school located 2km away.192 She explained:

So I always notice as soon as you have that second person in the car with him, he's always far calmer because that person can solely have their undivided attention on him, which he - obviously it just puts him at ease.193

1. Ms Starr indicated she has positioned the Applicant in the seat directly behind the driver's seat and in the seat diagonally across from the driver, but claimed he still managed to kick her in the face. She told the Tribunal the Applicant repetitively pulls on the door handles and kicks the seat which is very distracting. The furthest distance they regularly travel is about 40 minutes away when visiting the beach.194

1. Ms Starr explained that when the Applicant has a meltdown, a second support worker is required to 'tag team':

So in those really hard meltdowns that are quite extreme, we would swap in and out. So you get to have a break, regroup and then, you know, when that person is ready and they feel like they need a break, you can swap out.195

1. Ms Starr described transitions as very difficult for the Applicant; often taking significant time, whether it is going to school, to an appointment or a desired location. When they arrive home in the afternoon, Ms Starr assists the Applicant with bathing, organising his food/lunchbox for the following day, cooking his dinner, and preparing his school bag including a change of underwear and tracksuit pants.

1. Counsel asked Ms Starr about a shift she completed on 23 April 2025 which started at 5am and finished at 1:30pm. The shift note reveals that the Applicant refused to get on the school bus that morning, so his father drove him to school at 8:15am. The rest of the shift was spent as follows:

I put a load of washing on. Meanwhile I soaked [the Applicant's] bedding as it was quite marked and stained with feces before washing it. Once the first load was done, I put the second load of bedding on, too much for one load. Hung the load of washing out and put the first load of [the Applicant's] bedding into the dryer so the bed could be remade.

Tidied up the table, chairs and floor from [the Applicant's] food being everywhere. The bin also got cleaned and the floor around it from him trying to scrap his plate into the bin.

Went to aldi varsity lakes to try and find a new lunch box for [the Applicant], also went to aldi mudgeerba with no luck. Returned home with a few grocery items for [the Applicant's] food. Put the last load of [the Applicant's] bedding on and went to robina shopping centre and found him a new lunch box and bag.

I returned home and washed all the new items and made his lunch for the next day. I also made [the Applicant's] bed with the first load of washing to include mattress protector, fitted sheet and pillow protector. The doona cover was placed into the dryer which I have asked the next SW to put back onto his bed as it wasn't dry before I left.196 (Errors in original)

1. Counsel asked Ms Starr how often she was doing these types of tasks while the Applicant is at school. She replied:

Look, it's hard to do most things when [the Applicant] is around. So, whilst he's at school, obviously then, you know, I'm able to do that sort of stuff... So, to get stuff - specific stuff done, it's far easier to do it and quicker to do it while he's at school.197

1. The Tribunal observes that a significant part of the Mother's case is that the Applicant needs time out in the community. Apart from washing the Applicant's bedding and allowing a brief period to clean up the Applicant's food mess, it would seem that at least 4 hours was spent in a single day on tasks that was not directly beneficial for the Applicant. The Tribunal observes that support workers are meant to support the Applicant - not run errands and do other domestic chores on behalf of the parents.

1. Ms Starr indicated that she had done some general online training about behaviours of concern and attended approximately 3 Zoom sessions with the behaviour support practitioner to learn about the Applicant's behaviour support plan. When asked about the recommended strategies, Ms Starr said:

So obviously us staying calm, giving [the Applicant] his face, looking him in the eye, waiting til he was calm. A pillow - popping a pillow under his head. I would also sometimes give him a clean cleaning cloth to chew on rather than - you know, trying not to get him to bite his hands and knees. Yes, sometimes counting to 5 or I found 10 was a bit too much but counting to five worked quite well with him.198

1. Ms Taylor wrote a letter dated 14 November 2024 supporting the Mother's request for a 2:1 ratio of support. She provided the following description of a challenging shift:

For example, we went to SeaWorld for the afternoon, and the park shut at 5 pm. I tried to leave 30 minutes for us to leave the park, ensuring we had enough time to get out of the gates before closing. [The Applicant] began to have a meltdown because he did not want to leave; every time I asked him if he needed help getting off the ground, he pulled at my hair, grabbed my glasses, threw them, and tried to bite me. It took me 45 minutes to leave the park and get him to sit in his car seat. On the way home from SeaWorld, he undid his seatbelt and threw his shoes, chew toy and socks. After that day, I struggled to regulate myself due to the mental and emotional toll it took on me. I was able to use some mindfulness as well as my normal self-care routine following the shift end, including listening to podcasts and decompressing on the way home.199

1. In the same letter, Ms Taylor identified a safety issue affecting the siblings:

For example, I prepared food for him in the kitchen one lunchtime. He was sitting at the kitchen table with one of his younger sisters. I tried to redirect him from the use of his iPad, and he reached for her hair and pulled it. I could not react fast enough to stop him from pulling at her hair, and if another support had been there to supervise, he would have been able to act safely around his siblings and achieve one of his OT goals, and this occurrence would not have happened.200

1. In her oral evidence, Ms Taylor confirmed that the lunchtime shift would have occurred on a weekend and both parents were likely at home and in the lounge when the Applicant hurt his sister. She agreed that any responsible adult could help supervise and not necessarily a paid support worker.201

1. Ms Taylor completed the mandatory NDIS Commission training modules which took her about 2 hours to complete. She thought the modules might have briefly covered behaviour management or behaviours of concern but indicated most of it was focused on safeguarding clients. When asked whether she had reason to make a reportable incident in relation to the Applicant or another client, she said there was "reporting things in place". Ms Taylor's response suggests she is not particularly familiar with a registered provider's reporting obligations to the NDIS Commission.202

1. Ms Taylor told the Tribunal she mostly worked with the Applicant on Saturdays and Sundays but also did some weekday morning and afternoon shifts. She indicated her morning shifts were about 1.5 hours long. In the afternoon, they would generally get home between 4 -

5pm. When asked about the portion of time spent in the community versus home, Ms Taylor said, "Probably like including the appointment plus travel, it would have been only about 2 hours out in the community. And then coming back home and like making, you know, like preparing his meals and all that".203 She regularly spent time with him sitting beside the pool in the housing complex.

Like if you try and rush him, from the pool to back into the house, that's where behaviours happen... like some points there would be an hour spent out by the pool just sitting there because, you know, like, he's transitioned from the car, to, you know, like, he always wants to go to the pool and then getting back into the house, was quite a long time. And then, in the home, it was like, getting him bathed and dressed and ready for bed.204

1. Ms Taylor told the Tribunal that when she started working with the Applicant, the ratio was 2:1. She went on to explain:

And then there was a period where we had to go back to one on one, and we weren't able to access the community at all, because we were working through HireUp. And their policy for us, as support workers was not allowing [the Applicant] to go out in the community unless we were two on one with him.205

1. In a letter dated 18 December 2024, Ms KO raised several safety concerns including the ability of the Applicant to open the pool gate and pedestrian gate (leading to a busy road) of the residential complex. She asserted the Applicant poses a risk to himself and other children if left unsupervised.206 In her view, he requires more intensive care and supervision than her 2-year-old child due to his impulsivity and lack of boundaries.207

1. In her oral evidence, Ms KO indicated the Applicant enters her property most days to visit her dog. On one occasion around December 2024, he entered her home by accessing a side gate and opening an unlocked sliding door.208 It was unclear whether the Applicant was accompanied by a parent or a support worker at the time. Ms KO told the Tribunal she was satisfied the residential complex's safety arrangements are sufficient and the Strata/Body Corporate had not discussed any additional safety measures.209

1. Ms Cope had noticed that with less people in the house "that [the Applicant] seems to be more regulated and that the behaviours are either less frequent or they diffuse a lot quicker than usual".210 She also observed:

[The Applicant] is also really motivated to go into the community. And when he - a lot of his dysregulation occurs because he's asking to go and do something. So he might be saying he wants to go shop. He might be saying 'Kick, kick, kick' because he wants to go in the pool. And he will say these things over and over and over and sometimes he gets into a loop. And when he's told no, he finds that really triggering and that can cause dysregulation.

So it's hard to - yes, I can see that having less supports has been good for [the Applicant] in terms of helping him to be regulated, but then it's also making it really difficult for him as - yes, it's been reported to me that they're not able to leave the house.211

Findings re support worker assistance and the Applicant's needs

(a) The Applicant has a severe intellectual disability and Autism. He undoubtedly meets the disability requirements under section 24 of the NDIS Act based on intellectual and/or cognitive impairment. The evidence suggests his intellectual and/or cognitive impairment results in substantially reduced functional capacity in every domain under section 24(1)(c) except mobility.

(b) The Applicant requires supervision ranging from relatively passive observation / listening through to active intervention in response to behaviours or impulsivity.

(c) Due to his intellectual impairment, the Applicant requires support to get ready in the morning which includes getting dressed, brushing teeth, having breakfast, and transitioning to the school bus or being driven to school. Incidental cleaning is also required due to the Applicant's intellectual impairment, for example, stripping his bed and putting sheets in the washing machine following night-time incontinence and/or wiping up food mess.

(d) The Father is often at work in the afternoons and evenings and therefore the Mother is predominantly responsible for looking after the three younger children and the

Applicant. The Tribunal is not satisfied on the evidence that the Father is unable to provide greater assistance with the children in the morning and on the weekends.

(e) The Applicant's behaviours are regular and challenging for those around him although the exact frequency and intensity is unclear due to issues with Ms Campey's data collection, the lack of particulars in shift notes and concerns about the reliability of the Mother's evidence. (This issue is discussed in more detail below, including the question whether the Applicant's impairment of severe emotional dysregulation, as distinct from intellectual impairment, can be considered permanent, as required by section 24(1)(b) of the NDIS Act).

(f) The Applicant experiences disrupted sleep, however the Tribunal is not satisfied that the Mother provides the level of night-time support that is claimed. For example, Ms Rutherford's report indicated the Father finds mess throughout the kitchen and dining room following the Applicant's attempts to access food at night.212 Further, shift notes from the Mother on 1 April 2025 reveal that the Applicant "got up and helped himself to the fridge making a big mess and left the fridge door open, I woke to the fridge beeping".213 This occurred again on 4 April 2025.214 On the 6 April 2025, Ms Starr wrote that at 3:08am she "heard [the Mother] say go downstairs as he snuck into her room and took her phone... I got up and helped him part of the way downstairs as he was swaying side to side with his mum's phone in his hands to light up the staircase and saying um which is [the Applicant] wanting food".215 Ms Starr also presumed the Applicant had taken himself to the toilet during the night because she observed urine on the toilet floor.216

(g) The Tribunal is satisfied that the Applicant goes downstairs by himself with some regularity. Further, the Applicant helps himself to food in the fridge whilst downstairs without supervision. The Tribunal does not accept the parents would allow this to occur if they thought this posed a significant safety risk. Dr Pincus indicated it was "relatively safe behaviour" so long as the house is locked. There was no evidence

the parents had installed a night light on the stairs or trialled leaving out easily accessible food for the Applicant to eat when hungry during the night.

(h) The Tribunal accepts that the Applicant's disrupted sleep also disrupts his Mother's sleep however she did not appear to follow up with Dr Harte about the Applicant's sleep issues. Dr Pincus gave evidence that Risperidone can assist with sleep persistence. The Tribunal observes that the night shift records were produced only after Dr Pincus expressed the view "there has been no information provided to me which would result in the recommendation for a care worker being in the household during the night".217 Only three overnight shift notes were taken by support workers on 6 - 8 April 2025. On 8 April 2025, Ms Taylor noted the Applicant slept through the night from 11:40pm to 5:15am (despite the Applicant sleeping in his parent's bedroom when she arrived for her evening shift; only waking up at 8pm).218 The Tribunal is not satisfied on the evidence that the Applicant requires active or inactive overnight support.

(i) The Applicant enjoys being out in the community, however he has a limited range of interests due to his intellectual impairment. Due to his current behaviours, some additional time away from the home in the afternoon is likely to reduce pressure on his family. It would allow the Mother to take the younger three children to appointments or activities, help with homework, make dinner and prepare lunchboxes and school uniforms for the next day within a calmer environment. The Tribunal will say something further about how the Applicant's current behaviours can be considered below.

(j) Due to his intellectual impairment, the Applicant requires support around dinner time, having a bath and getting ready for bed.

(k) The support workers who gave evidence were observed to be committed and hard-working individuals who want good outcomes for the Applicant. However, both had very limited experience as support workers. It was not apparent that either had worked with participants with significant behavioural issues nor had they undertaken significant training on how to manage complex behaviours. Ms Taylor's evidence

that she would seek permission from the parents before wiping the Applicant's bottom in the event of a toileting accident was demonstrative of this inexperience. It also suggests she may have been unduly influenced by the Mother's views, which appeared at times to conflate some forms of personal care with actual sexual abuse.

(l) The Applicant currently requires support workers who are trained to provide intensive and complex support. The Tribunal is of the view that such workers are also more likely to help imbed good practices and routines for managing the Applicant's behaviours in the home.

(m) The Tribunal is not satisfied the overutilisation of the Applicant's funds is justified by reason of safety.

1. As mentioned earlier in this decision, Dr Pincus' evidence about Risperidone emerged as a significant issue. It raised an important question whether the Applicant's current presentation of severe emotional dysregulation results in a permanent impairment such that it could be said to meet section 24 or section 25 of the NDIS Act.

1. Dr Pincus explained that Risperidone is an atypical anti-psychotic medication, widely used by paediatricians to treat autistic children with emotional dysregulation. In his report, Dr Pincus noted the following:

I understand [the Applicant] has recently started on Intuniv for his ADHD and emotional dysregulation; it is not clear if it has been helpful, as it is still a little early to make such an assessment. It would be my usual experience that a child with [the Applicant's] level of distress would have been trialled with such medications, including potentially stimulant medication for his ADHD and impulsivity, potentially an antianxiety medication if that were felt to be a significant issue (which I believe it probably is), and even consideration for an atypical antipsychotic medication such as Risperidone which can be very helpful for sleeping, for emotional regulation and has the side effect of increasing appetite and weight which would be desirable. Occasionally it is also beneficial for speech. It may well be that such an approach would significantly de-escalate the situation and help both [the Applicant] and his family.219

1. Dr Pincus told the Tribunal that Intuniv was a good choice for the Applicant's ADHD. He thought it was probably better than stimulants (such as Ritalin) for emotional regulation, though less effective for focus and distractibility. He explained it would take approximately 4 weeks to see a response and one would know within 2 or 3 months whether Intuniv was effective.220

1. In relation to Risperidone, Dr Pincus confirmed that the 21 paediatricians in his rooms all prescribe this medication on a regular basis to children under their care.221 He noted parents often seek out Risperidone because they have heard about it from somebody else at a specialist school. Dr Pincus clarified "it's not a first-choice medication. It's a choice that you make several steps along the way".222 He explained as follows:

[It was developed] for people with schizophrenia, but it has an indication in Australia, which is for children with autism and significant behavioural problems and it's actually a remarkable (audio malfunction) in a small group of those children. It has side effects of increase appetite, which is often a desirable side effect in children with restricted eating. It actually is particularly helpful in helping children eat a better variety of food. But there's just a group of children that you start them on risperidone and... they can talk much better and communicate much better...223

1. He also gave evidence that Risperidone can help keep children asleep, noting that melatonin assists with sleep initiation rather than sleep persistence.224

1. Dr Pincus explained that he sees many children who have an intellectual disability or autism who don't have behavioural problems. He noted that children with communication difficulties often experience emotional and behavioural difficulties however the intellectual impairment does not necessarily cause the behavioural problems.225 He hypothesised that stresses within the home environment may be contributing to the Applicant's dysregulation because he seems to be more challenging at home than at school.226

1. Dr Pincus expressed surprise that Risperidone had not been considered a treatment option for the Applicant's emotional dysregulation.227 As will be discussed below, the Tribunal finds that the Applicant's Mother did not inform the treating paediatrician about the degree of emotional dysregulation experienced by the Applicant. The following exchange took place:

Tribunal: Just on that, Dr Pincus, if you were to be the treating paediatrician in this case, can you talk me through what the process would be to do a trial of risperidone. What would that look like. What are any risks that need to be monitored and how quickly might the improvements that you're speaking about [be] observed? Or not, in which case it would cease?

Dr Pincus: So I would - sure, yes. So, after discussing the effects and side effects and making sure the family were happy, I would normally be starting something like 0.2 milligrams or 0.3 milligrams - it comes in solution - the morning. And I would just say, let's do that for two weeks, and then I'd like to talk to you. And then I'd just have a 10-minute telehealth appointment to discuss what they've seen.228

1. He indicated the degree of efficacy would inform whether to continue with the medication which is generally kept to under 0.5 milligrams per day. Dr Pincus said his prescription is focused on reducing behavioural dysregulation and is not about sedating a child.229

1. Following this evidence, the Tribunal indicated it would like to hear from Dr Harte, one of the Applicant's treating paediatricians. Arrangements were made to hear from him the following week.

1. Dr Harte is a general paediatrician with 30 years of experience. He is a Fellow of the Royal Australian College of Physicians. He graduated with a Bachelor of Medicine and a Bachelor of Surgery from the University of Queensland. Dr Harte indicated his patients present with a range of issues including diabetes, epilepsy, ADHD, and developmental delay.

1. Dr Harte started treating the Applicant in around August 2023. His first letter did not identify major behaviour issues stating, "we did not discuss this a lot but it seems evident that he is a pleasant and bonded, friendly boy who is highly active and relatively pervasive along with

being repetitive".230 On 22 May 2024, Dr Harte recommended "there be availability of 1 or 2 carers to support the family from time to time".231

1. In his oral evidence, Dr Harte confirmed that Risperidone is often used by paediatricians to control anger, aggression, and severe behavioural disturbances in children, particularly if they are autistic. It is not used to treat psychosis in children.232

1. Counsel read out the approved uses from the Australian Register of Therapeutic Goods (TGA) and Dr Harte indicated those descriptions were consistent with his understanding and use of the medication.233

1. Dr Harte told the Tribunal that in his experience Risperidone is the key medication for aggressive behaviours including self-harm and high agitation. He confirmed it is "very accepted" for use in children with autism. He described the medication "broad spectrum" which means it would help with severe anxiety and ADHD, though it wouldn't be prescribed for those indicators alone.234

1. Dr Harte noted a common side effect is weight gain so he would be reluctant to prescribe Risperidone to an obese child. "If we had a lean child, we would be much more prepared to prescribe it, but it wouldn't be for the indication of weight manipulation".235 He also explained it can induce involuntary movement or twitches but stated that was relatively uncommon and the dose would be reduced or ceased if that occurred.236 Dr Harte indicated there was a possibility of permanent induction of involuntary movement but he wasn't confident a case had ever been reported in Australia.237 A third side-effect is elevation of prolactin levels which is a central hormone. He said:

And that I think is common in a mild degree and very occasionally to a very high degree. And that has theoretical implications... including of hurting the health of the

bones for the long term. So thinness of bones - osteopenia - being a consequence of chronic, elevated prolactin levels - is my understanding.238

1. Dr Harte explained that prolactin levels can be monitored however the risk of developing diabetes mellitus is slightly higher for those on Risperidone than the rest of the population, and once that happens, it is irreversible.239 In his experience, the medication does not cause headaches, vomiting or nausea.240

1. When asked about the suitability of Risperidone for the Applicant, Dr Harte stated:

I checked my notes this morning... And I actually haven't seen [the Applicant] for quite a deal of time. Most of it's been reported through videos etcetera. But I do remember him quite well from having him in the office and the consultations earlier... And I would describe [the Applicant] as being busy, a little bit risky because of his impulsivity and his lack of restrictions about what he's going to do next, be it fleeing, immobilising etcetera. Pesty, but I didn't have in my mind that he was aggressive. I didn't have that picture of him.241 (Tribunal's emphasis).

1. Dr Harte agreed that if there was evidence that the Applicant is severely dysregulated with self-injurious behaviours, Risperidone would be a suitable treatment for him. He confirmed there were no contraindications, and it would be standard practice to monitor for side-effects, and minimise the dose and duration of treatment. The following exchange took place:

Tribunal: Just briefly, Dr Harte - if Risperidone were to be trialled, what is the typical process for initiating that and how long would it take to observe any effects?

Dr Harte: If I was doing it, I'd pick the lowest dose, which is a quarter of a milligram - 0.25 per day. And within two weeks, that could be adjudicated, as to whether it was profitable. And a dose would be serially increased. But each time a dose goes up, the risk of side effects goes up. And I don't think... weight would ever be a problem. But bone health, prolactin levels, diabetes risk slightly going up.242

1. Dr Harte confirmed that he prescribes Risperidone, available on the Pharmaceutical Benefits Scheme (PBS) in accordance with the following authority criteria:

The patient must have autism spectrum disorder, the treatment must be under supervision of paediatrician or a psychiatrist and treatment must be in combination with non pharmacological measures and the patient must be under 18 years of age.243

1. Dr Harte confirmed that he had prescribed 2mg of Intuniv in October 2024 which is an anti-ADD medicine that "tones down" impulsivity, hyperactivity and mobility. He wrote a further script for 1mg in January 2025.244 Dr Harte explained Intuniv is usually a bit sedating in the first 2 weeks but in the 2 to 4 weeks mark the person is hopefully less impulsive, quieter and calm.245

1. Dr Harte had also prescribed Clonidine for sleep initiation but indicated he probably couldn't report on its efficacy:

I think I've written the script once and the patient would depart and not be an important enough thing to feedback to me. And likely, at a subsequent review we were on - dealing with other topics, so I think, even if I read my notes carefully, I probably can't report on that.246

1. Dr Harte, like Dr Pincus, has considerable experience as a generalist paediatrician. He was observed to provide thoughtful and considered evidence, particularly on the issue of Risperidone. There was notable consistency between the explanations provided by both paediatricians on this issue. The Tribunal places significant weight on Dr Harte's evidence.

Findings and Consideration re Risperidone and section 34(1)(aa)

1. Section 34(1)(aa) of the NDIS Act requires the Tribunal to consider if the supports requested are necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements under section 24 or the early intervention requirements under section 25. The Mother's case largely rested on the contention that the Applicant requires significantly more support because of his behaviours and dysregulated state.

1. Senior Member French has made important observations about the nature of impairments in several recent decisions (footnotes omitted):
   • [104] The term 'impairment' is not defined in the NDIS [Act] or its Rules. However, the Agency's operational guidelines define it to mean 'a loss of or damage to your body's function'. As I have discussed in Burrows this conceptualisation of impairment for the purpose of s 24(1) was specifically approved by the Court in Davis. That definition is a simple rendering of the definition of impairment used in the application of the International Classification of Functioning Disability and Health (ICF) which is 'a problem of body function or structure such as a significant deviation or loss as compared with typical or expected function or structure.
   • [105] As I have discussed in DQKZ, the ICF may be used as an aid to interpretation of terms and concepts used in the implementation of the NDIS [Act], particularly because of its express objective of providing a standardised classification system and language in relation to human function. Impairment occurs in the context of a health condition or health-related condition, being a disorder, disease or injury. Impairment is however conceptually distinct from a health condition, and is also distinct from the concept of disability. Impairment is [the] effect of the health condition on bodily function, including mental function. Disability is the social and environmental impact the person experiences because of their health condition and impairments. It is important not to conflate the terms and concepts of health condition, impairment and disability as this may lead to their misapplication for the purposes of the NDIS Act.247

1. The Tribunal accepts Dr Pincus' evidence that the Applicant's diagnosed conditions of severe intellectual disability and Autism and the associated intellectual and/or cognitive impairments do not necessary account for or fully explain the apparent increase in his behaviours of concern and emotional dysregulation in recent years. The Tribunal acknowledges that the Applicant's intellectual impairment interacts with and complicates attempts to understand the cause of dysregulation because the Applicant is unable to explain his distress.

1. Dr Harte's recollection of the Applicant was not consistent with the reported level of current aggression and dysregulation, suggesting there has been a marked change in the Applicant's behaviour. The Mother's failure to inform Dr Harte of the change in behaviour was both puzzling and concerning. In any event, the Tribunal is satisfied that the Applicant is now presenting with behaviours suggestive of severe emotional dysregulation in the home. The Tribunal does not have a clear picture of the Applicant's current behaviour at school with respect to the frequency and intensity of his dysregulation.

247 SMNL and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 1512.

1. The Tribunal is satisfied on the evidence that the Applicant's severe emotional dysregulation is most properly understood as a neurological impairment and/or impairment attributable to a psycho-social condition pursuant to section 24(1)(a). In the Tribunal's view, it is unnecessary at this stage of the inquiry to be absolutely sure how best to characterise the impairment in circumstances where the manifestation of the impairment, that is, severe emotional dysregulation can be said to interfere with the Applicant's bodily and mental function.

Section 24(1)(b) and the question of permanency

1. There were several hypotheses which could explain, individually or in combination, the Applicant's current presentation including:

(a) Increased frustration associated with limited communication.248

(b) Environmental factors associated with a highly stressed household (including evidence about the Mother's mental health/experience of trauma, financial stress, the number of support workers, younger siblings and excessive control/supervision).249

(c) Mental health issues, such as anxiety.250

(d) Behaviours consistent with an Autism diagnosis (including limited interests, repetitive behaviours, meltdowns, and poor sleep).251

1. While not the subject of expert evidence, the Tribunal observes the Applicant is now of an age where changes associated with puberty may also be a contributing factor. The Tribunal is mindful however that Dr Pincus expressed the view that the Applicant's size was more indicative of a child aged 10 years old.

1. As discussed above, section 34(1)(aa) requires that a support is necessary to address needs arising from a permanent impairment. Dr Pincus and Dr Harte's evidence indicates

there is an important treatment option yet to be trialled in relation to the Applicant's impairment manifesting as severe emotional dysregulation. It is important to be clear that Risperidone will not impact the Applicant's intellectual and/or cognitive impairment and the very clear support needs that flow from that impairment.

1. The Access rules provide important guidance for assessing whether an impairment can be said to be permanent:

When is an impairment permanent or likely to be permanent for the disability requirements?

5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.

5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).

1. In Davis Mortimer J observed that rules 5.4 and 5.6 were exclusionary, in the sense that they "prescribe circumstances where, if the repository of the power is satisfied on the evidence of the applicability of either of those rules, a person's impairment will be excluded from meeting the permanency criterion in s 24(1)(b)".253

1. Her Honour observed the following with respect to the adjectives used in rule 5.4:

(a) the word 'remedy' should be understood to mean something approaching a removal or cure of the impairment';254

(b) the word 'known' connotes a treatment which can be identified by Australian medical practitioners as a suitable treatment for the person's particular impairment';255

252 National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth)

253 See Davis at [75] and [131]. See also [158].

254 National Disability Insurance Agency v Davis [2022] FCA 1002 at [136].

(c) the word 'appropriate' 'connotes a treatment which has a capacity to "remedy" the impairment and is suitable for the particular individual concerned to undergo';256 and

(d) the word 'available' should be understood as directed at what treatments an individual can, in reality, access'.257

1. While Dr Harte identified a slightly elevated risk of diabetes and prolactin levels, the Tribunal considers the overall risk to be low in circumstances where a significant number of Australian children are routinely prescribed the medication through the PBS at a low dose. The Tribunal also understands the risk is more remote in the Applicant's case because he is underweight.

1. The parents gave evidence suggesting that they would prefer a more 'holistic' approach, rather than medication, to address the Applicant's dysregulation.258 The Tribunal observes that a range of therapeutic supports have been in place for some time. The following exchange took place:

Mother: I don't know what the risks are, and [the Applicant] has had a lot of seizures in the past, so I would really need to know because I've heard of a lot of stories - like, I've done bible college, like, as you know, of people having these medications, and then a lot of medications have actually made the symptoms worse... then they'd have long-time problems moving forward because of medications that they had. So I don't want to just be like, 'Here take this', but I need to do my research.

Tribunal: Yes. Ms [CBLG], I'm not suggesting that - I'm not trying to influence you in any way. I do note though, and I will be taking into account, that he's currently on Epilim.

Tribunal: And he's recently commenced another medication, so I have to ---Mother: Yes, (indistinct words).

Tribunal: I just have to be clear of that, again, there's some different evidence before me about what is okay and what's not okay.259

1. The Tribunal is not persuaded that that the parents have adopted a consistent position against using medication in circumstances where the Applicant has been prescribed Epilim for some time (also known as sodium valproate and commonly used to treat bipolar disorder in adults). Further, the Applicant was prescribed Intuniv for ADHD in the past year and was previously prescribed Clonidine for sleep.

1. While it is ultimately a matter for the parents whether they trial Risperidone or not, the Tribunal is satisfied on the evidence of Dr Pincus and Dr Harte that Risperidone is a known, appropriate, and available treatment because it is routinely used by paediatricians in Australia to treat emotional dysregulation of the kind described in this case. This use is approved by the TGA and the cost of the medication is subsidised through the PBS.

1. The Tribunal was persuaded by Dr Pincus' evidence that Risperidone can be very helpful for some children in terms of sleep persistence, improved emotional regulation and increasing appetite. It can also help to improve speech for some children. The case for a trial of Risperidone became particularly compelling when both paediatricians described a straightforward process with very minimal risk which would yield strong indicators of efficacy within 2 weeks.

1. Counsel for the Respondent submitted that when considering the term 'remedy' as contemplated by Davis, one should place emphasis on the word 'approaching' a removal or cure of the impairment. He submitted that the range between relieve or improve (which Justice Mortimer found was insufficient) and 'approaching cure' was a relatively large range, however remedy does not require total or absolute cure. Rather it should demonstrate a movement towards cure.260 The Tribunal found this to be a particularly helpful explanation when considering an impairment inherently linked to human behaviour and emotions, which are by nature, in a constant state of flux. While Risperidone may not, for example, completely remove meltdowns from the Applicant's life, an overall reduction in the intensity and regularity of his dysregulated state could be life changing, both for the Applicant and his parents. It might transform an impairment - something that interferes with his mental or bodily function - into a less frequent or occasional experience of dysregulation. The Tribunal

260 The Macquarie online dictionary defines 'approach' as "to come nearer; to come near to in quality, character, time or condition; to bring near to something; to make advances".

acknowledges that there will always be additional challenges responding to the Applicant's emotional dysregulation because of his intellectual impairment.

1. The Tribunal cannot be certain how the Applicant might respond to Risperidone, noting that it is ultimately a decision for the Applicant's parents. However, the Tribunal is satisfied that Risperidone provides a real possibility, that is not remote or fanciful, of significantly changing the nature of the Applicant's impairment, and therefore such a treatment could be said to approach removal or cure of the impairment. In this sense, the Tribunal finds that Risperidone is likely to remedy the Applicant's impairment.

1. It is conceivable, of course, that a trial of Risperidone may make a moderate but not significant change to the impairment. Such an outcome would support the view that the impairment is permanent, although of decreased severity. For example, it might transform the manifestation of the impairment from 'severe emotional dysregulation' to 'moderate' or 'mild' emotional dysregulation. This would undoubtedly influence the effect of the impairment on the Applicant's functional capacity. It is appropriate that the Applicant receives treatment to optimise and stabilise a permanent impairment before assessing the degree of impact on functional capacity and any associated support needs.

1. For completeness, the Tribunal considers that Rule 5.6 provides an alternative basis for deciding that the Applicant's emotional dysregulation requires further treatment and review in order for its permanency or likely permanency to be demonstrated. The Tribunal considered the operation of Rule 5.6 in the recent decision of TZQP where important information was withheld from a treating practitioner.261 Further treatment and review seems particularly important in circumstances where the treating paediatrician Dr Harte, through no fault of his own, was not provided with highly relevant information about the Applicant's current behaviours and emotional dysregulation. The Tribunal considers it likely that had Dr Harte been aware of the evidence presented at hearing, he would have considered a trial of Risperidone for the Applicant.

1. Pursuant to section 24(1)(b), the Tribunal is not satisfied that the neurological impairment and/or impairment attributable to a psychosocial condition, manifesting as severe emotional

261 TZPQ and CEO, National Disability Insurance Agency (NDIS) [2025] ARTA 839 at [277] - [282].

dysregulation and associated behaviours of concern, is permanent. The Applicant does not meet the disability requirements in relation to this impairment. For the same reason, the Applicant does not meet section 25(1)(a)(i) or (ii) of the early intervention criteria.

1. Accordingly, the Applicant's support needs that arise in relation to his neurological impairment and/or impairment attributable to a psychosocial condition are excluded by operation of section 34(1)(aa). The Tribunal will deal separately with how this finding impacts the Mother's request for various supports below.

Consideration re support worker hours and ratio

1. A key tension within this application for review was the extent to which the Tribunal could consider factors beyond the Applicant's disability when assessing his support needs and determining what supports might be reasonable and necessary.

1. Although the Tribunal has found that the impairment manifesting as severe emotional dysregulation cannot give rise to support needs independently, the Respondent submitted that the Tribunal could consider the interplay of the Applicant's 'non-section 24 impairment' with his 'section 24 impairments' and other factors pursuant to the Note under section 34(1)(aa) and Rule 5.1(b) of the Supports Rules. These provisions arguably allow for some of the 'reality' surrounding the Applicant's life to be part of the 'support equation'.

1. The note to Section 34(1)(aa) relevantly states:

(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements. (Tribunal's emphasis)

1. Clearly a wide range of factors may be considered when making a determination under section 34(1)(aa), although the note says nothing of how they might be considered or what weight they should be given. Rule 7 of the Miscellaneous Transitional Rules is also relevant when considering environmental factors and the impact of another impairment.
2. Rule 5.1(b) of the Supports Rules stipulate that a support will not be provided or funded under the NDIS if it is not related to the participant's disability. This provision suggests a reasonable degree of proximity and causal connection is required between the requested support and the participant's disability. However, by using the term disability, this rule allows for a broader consideration of the participant's life including impairments which do not necessarily meet sections 24 or 25 and the impact of his disability on close family members.

1. In this case, it seems to the Tribunal that the Applicant's severe emotional dysregulation and his 3 younger siblings are key considerations that carry some weight when determining what supports are reasonable and necessary. The Applicant's emotional dysregulation is both distressing for him and others around him. The interaction between his 'non-section 24' impairment and his intellectual impairment results in a more challenging situation overall. Further, the Applicant's siblings are exposed to physical and emotional aggression and live in a context where significant adult attention and time must already be spent managing their older brother on account of his intellectual impairment. Ms Hazell and Ms Cope's evidence indicate that the number of support workers moving through the home was having an adverse effect on the younger children. The Tribunal shares Dr Pincus' concern that the siblings are at significant risk of trauma.

1. In these circumstances, the Tribunal considers an adjustment of support worker hours for community participation each week is reasonable and necessary pursuant to Rule 5.1(b) (detailed below), noting the Respondent has already agreed to fund intensive and complex behaviour support workers.

1. The Tribunal is satisfied that the following supports are reasonable and necessary:

(a) 4 hours of support each weekday at a 1:1 ratio at the intensive and complex rate for assistance with daily living.

(b) 15 hours each week at a 1:1 ratio at the intensive and complex rate for community participation that can be used flexibly.

(c) 8 hours of support at a ratio of 1:1 on Saturdays and Sundays at the intensive and complex rate, comprising:

(i) 5 hours for community participation

(ii) 3 hours for assistance with daily living

1. The Tribunal has arrived at this decision for the following key reasons:

(a) The supports are necessary to address the needs of the Applicant arising from his intellectual impairment which means he requires substantial assistance with daily living including getting ready for school and the dinner / bedtime routine. This support is required to assist the Applicant to learn and imbed new personal care skills and routines. The Tribunal had included an additional 15 hours of support worker assistance per week to provide a period of respite for the Mother to attend to the daily needs of the Applicant's siblings without needing to supervise the Applicant. These hours will also provide the Applicant with additional time in the community and allow greater flexibility for transitions between community and home activities which is often more difficult because of his severe emotional dysregulation. At his age, it is appropriate he can pursue his own interests outside the home on several afternoons per week and do activities that do not require the involvement of his much younger siblings. The Tribunal is satisfied section 34(1)(aa) is met and that the supports are related to the Applicant's disability needs pursuant to Rule 5.1(b).

(b) The support will assist the participant to pursue his goals and aspirations which includes safely engaging in activities at home and in the community, sustaining informal supports and developing independence, communication skills and social skills.262 The Tribunal is satisfied section 34(1)(a) is met.

(c) The support will assist the Applicant to participate in social activities and access the community. Section 34(1)(b) is met.

(d) The support represents value for money because the costs of the support are reasonable relative to the benefits achieved and the cost of alternative supports. The Tribunal is satisfied that the provision of increased funding for complex and intense support workers is an appropriate strategy to manage the Applicant's behaviours and support his functional development. This will simultaneously reduce the cost

associated with the using less experienced support workers at a 2:1 ratio and the number of support workers entering the home and interacting with siblings. The establishment of good routines and practices now is likely to reduce the intensity of support required by the Applicant in the future. Section 34(1)(c) is met.

(e) For the same reasons mentioned above, the support is likely to be effective and beneficial having regard to good practice. The Tribunal accepts Ms Rutherford's evidence that complex and intense behaviour support workers are more confident in their own abilities and strategies to manage challenging behaviours. Noting the relative inexperience of the support workers engaged by the Mother to date and the treatment available for the Applicant's severe emotional dysregulation, the Tribunal does not accept that a ratio of 2:1 is required. The Tribunal is satisfied that the provision of hours strikes the right balance between ensuring the Applicant's safety, supporting his functional development and providing opportunities for him to access the community that are age appropriate. Section 34(1)(d) is met.

(f) The Mother submitted, in effect, that the NDIS should cover any costs or supports over and above what a 'typical' 13 or 14 year old requires because his needs are "substantially greater than those of other children of a similar age.263 The Respondent submitted that a distinction must be drawn between parental responsibility and parental capacity. While there is no doubt that the Applicant's support needs are considerably higher and different to many other young teenagers, the Tribunal cannot accept the Mother's contention. The parents continue to have parental responsibility for the Applicant as one of their four children. This responsibility undoubtedly involves greater pressures and challenges than those faced by many parents, both due to the Applicant's disability and the number of children, but those issues cannot be completely ameliorated by the NDIS. It is acknowledged the parents having significantly less capacity, for example, than parents with responsibility for only one or two children. To that end, the Tribunal has tried to fairly consider the reality of the household composition in the allocation of hours. The hours found to be reasonable and necessary reflect the need for the Mother to look after considerably younger children during the school week, for the siblings to enjoy a period of calm after school on some days and for the Applicant to

pursue his own interests in the community on some afternoons. The Tribunal considers the family has greater flexibility on Saturday and Sunday mornings because the Applicant and other children do not need to go to school. The Tribunal is not satisfied on the evidence that the Father is unable to provide more support to the Applicant and/or the younger children on weekends. Accordingly, the hours of ADL have been moderated on weekends. Section 34(1)(e) is met.

(g) Support worker assistance is not excluded by Schedule 2 and is considered a NDIS support under Items 14, 21 and 27 of Schedule 1 of the Transitional Support Rules. Section 34(1)(f) is met.

1. The Tribunal is not satisfied that 2 hours per day of Key Worker assistance is value for money pursuant to section 34(1)(c), noting it was largely premised on the Mother's expectation for paid support at all times when the Applicant was not at school. The Tribunal accepts the Respondent's contention that it would also duplicate the support coordinator's role, contrary to Rule 5.1(c).

1. The Mother claimed the Applicant would also require a 2:1 ratio of support if the Applicant was attending STA camps or other respite services.

1. The Mother indicated to Dr Pincus that the family would attend camps with the Applicant.264

1. The Tribunal is not satisfied the request for a 2:1 ratio at STA is reasonable and necessary by reason of section 34(1)(aa) because the Applicant's severe emotional dysregulation cannot be said to be permanent. Further, as the Applicant's parents plan to attend the camp with the Applicant, the Tribunal considers it reasonable for them to provide any additional assistance required beyond a 1:1 ratio pursuant to section 34(1)(e).

1. The Tribunal has already found that it is not satisfied on the evidence that the Applicant requires overnight active or inactive support. The Tribunal also considers Risperidone may

assist with sleep persistence. In these circumstances, the Tribunal cannot be satisfied the requested support is value for money under section 34(1)(c).

1. To the extent that the Mother's request for overnight paid support is premised on the Applicant's behaviours and/or seizures, the Tribunal has found the Applicant's severe emotional dysregulation does not meet section 24(1)(b) and the Tribunal is not satisfied the Applicant currently experiences epileptic seizures pursuant to section 24(1)(a). These supports cannot be funded pursuant to section 34(1)(aa).

1. The Mother identified 5 key reasons why she should be paid to provide support to the Applicant.265

1. The Mother is Christian and regularly attends church and the Father is Catholic. The Mother attended Bible College in Victoria every second Saturday before moving to Queensland. She completed her third year of college with a focus on leadership, ministry, and business in 2023.

1. The three siblings go to a Christian school and the Applicant goes to a public specialist disability school. The Mother claimed the Applicant's support workers are all either Christian or Catholic although that was not evident in the material before the Tribunal. There was no evidence before the Tribunal about the religious beliefs of school staff who work closely with the Applicant, including those who take him to the toilet.

1. The Mother claimed support workers had done "inappropriate things, such as not dressing modestly, playing music that violates [the Applicant's] religious beliefs, using language that conflicts with the Christian beliefs". The Mother did not provide details beyond these assertions.266

265 See also T1G of T-Docs, p29 dated 10 November 2023 which sets out a number of these grounds.

1. Ms Starr told the Tribunal she is not Christian or Catholic. When further prompted by the Mother, Ms Starr acknowledged her grandmother took her to a Greek Orthodox church as a child and her children go to a Catholic school.

1. The Mother contends she should be paid to provide supports to the Applicant because they are unable to live in peace and in accordance with their religious beliefs if support workers are not Christian.

1. The Mother contends she should be paid to provide support because the carer's payment provided by Centrelink is insufficient due to inflation and the high cost of living.267

1. Since moving to Queensland, the Mother helped to set up two pizza shops. She was otherwise not in paid employment in 2024.268 In 2025, the Mother started working as a support worker to show that she is "capable" and "not an incompetent person".269 She is meant to work a 6-hour shift with a 5 year old boy and a 2-hour shift with an aged care client each week. The Mother indicated she cancels a lot of shifts because she needs to support the Applicant.270

1. The Mother indicated the Applicant's behaviours have reduced with less support workers in the house. This reduction followed the Respondent's decision to make the plan 'agency managed'.

1. The Mother does not want support workers in the home overnight. She suggested the parents could tag team doing active overnight shifts.271 On another occasion, she indicated that doing an afternoon shift once or twice a week would ensure the Applicant's (emotional) bucket is filled.272

1. The Mother explained she would hire a nanny to look after the other 3 children after school if she was paid to look after the Applicant. She claimed the younger children were being neglected because she spends so much time inducting or training support workers.273 She contended that if she was a paid worker, she could train new workers and ensure consistency. Ms Middlebrook wrote: "[The Applicant] is isolated from his family and needs time with his mother for emotional well-being. If [the Mother] could be a paid support worker, she could spend afternoons with the Applicant while arranging for a nanny to take her other children to extracurricular activities".274

1. The Tribunal heard the Father can drive the Applicant to school and has flexibility in the morning. The Father's evidence indicates he can manage the Applicant by himself in the community, albeit with some challenges.275

1. The Mother repeatedly expressed concerns about the risk of the Applicant being sexually abused by the NDIS support workers, referring to the recent case of a Melbourne childcare worker who allegedly sexually abused children at a childcare centre. The Mother reasoned that her other children could articulate if they were abused, for example, by a nanny.276 She also stated:

So I've actually sent [the Applicant's 8 year old brother] off as an informal support with [the Applicant]... And he's come back and told me that support workers have actually taken [the Applicant] back to their houses with rooms filled [with] teenagers or very young people. I don't know who they are, haven't got working with children's check, don't know nothing about them.277

1. The Tribunal located a document after the hearing concluded which may refer to the same incident. This document suggests the younger brother may have been closer to 6 or 7 years of age at the time.278 The Tribunal infers the more likely scenario involved the support worker baby-sitting the younger sibling. It is clearly inappropriate if the Applicant and his younger brother were taken to an unknown house in the manner described. It is also unclear

why the Mother thought it appropriate for the much younger sibling to be used as an informal support for the Applicant. The Mother did not provide any further explanation about how she responded to this incident. It is unclear whether the support workers involved were registered or not, however the funding was clearly plan managed at the time.

1. When asked about the risk of abuse at the Applicant's school, the Mother responded, "I know, I haven't even crossed that bridge yet...I haven't even thought about that yet".279 This was observed to be highly unusual in circumstances where a significant part of the Mother's case was her concern about the risk of sexual abuse of the Applicant.

1. Later in the hearing she provided a different account:

I've thought about school... And I do not feel comfortable with some of the people at the school. They do look a bit wary and they also do say like 'go with your instincts'. And I'm like, I'm going with my instincts.280

1. There was no evidence the mother had raised any concerns with the school about the risk of sexual abuse. Other evidence before the Tribunal suggests the family is generally happy with the school.

1. The Mother told the Tribunal the Applicant can't wipe his bottom properly and "doesn't even really try". She claimed:

[H]e wants me to help him in the bath, and the shower and the toilet... It's just taking away his human rights, taking away my, our human rights, his dignity, our Christian core values as well.281

1. Ms Campey wrote in her letter dated 17 March 2025:

[The Mother] has outlined the distress [the Applicant] has shown from not having his dignity respected in terms of his toileting. [The Applicant] is reported to engage in physical aggression, self-harm and verbal aggression in response to his requiring toileting assistance to many new support workers who have a high turnover. Without safe-guards to ensure continuity of care, his behaviours will remain high in frequency.282

1. The Tribunal observes this account to be inconsistent with Ms Starr's evidence that the Applicant will sometimes request help with his toileting.

1. Ms Starr told the Tribunal she runs the water for the Applicant's bath.

Once he's in there, generally he will ask you to leave. So, he does like to throw water out on the floor. So quite often I just sit outside. I'll close the bathroom door so he's got his privacy, but I usually sit just outside the door because as soon as I hear that water, I'll go in with some towels and put them down and then go back out again.

1. It was unclear to the Tribunal whether the Applicant prefers Ms Starr to sit outside for reasons of privacy or so that he has greater freedom to splash water. The Tribunal suspects it could be a combination of both.

Tribunal: And what about when you're in the community, if he needs to go to the toilet and do a number 2, are you involved in helping with wiping and all of that sort of thing?

Ms Starr: He generally is okay. I stay outside the door but sometimes you hear him say 'Elp, Elp' which is, 'Help'. Unless he asks I don't go in. Obviously if he does ask then I go and attend to him.

Tribunal: Yes, and does he normally just need a bit of clean up, extra wipe or what does - I don't mean to be indelicate but it's helpful for me to understand what's involved?

Ms Starr: No, that's ok. He sometimes will try to wipe his bottom, but he gets it over his fingers. He'll then try and pull his clothes up. He gets it on walls - it kinda goes everywhere. So, I think, yeah, over time he's just learned to ask for help, which is great because I'd rather go in and help him then have to clean up, you know, all of that, especially - I don't mind so much at home, but in a public space, you know. And then yes, if he needs help washing his hands, obviously I help with that as well.283

1. Ms Taylor confirmed she takes the Applicant to the pool for his physiotherapy / exercise physiology sessions. The Tribunal asked about the process to get the Applicant ready for the pool. The following exchange took place:

Ms Taylor: So we'd take school uniform - shoes, socks and all that off and leave his undies on. Like I've never ever taken his undies off, to put his swimmers on. I always put [the swimmers] over the top... so like, I never take any of that off...

Tribunal: Yes. And then what happens when he gets out of the pool? What's the process then, of getting ready?

Ms Taylor: Usually, it's just - yes. Getting him fully dressed. Obviously, like he has to get all his wet clothing off. And then get him dressed into his clothes - like into warmer clothes, so.

Tribunal: And so again, just to be specific - is he taking off his wet jocks and swimming trunks?

Tribunal: So, you're assisting him, to take off his? Ms Taylor: Yes.

Tribunal: And what's he like putting on his own jocks? Is he able to get his legs through the holes and things like that?

Ms Taylor: He can do that, but sometimes, like, he puts both feet inside of one. And also, he's not able to lift them up over his bottom. Like he usually misses that back part. So like, I try to encourage him to get dressed himself, but it's the final end part, where he does struggle to get those fully up, yes.284

1. Like Ms Starr, Ms Taylor confirmed she runs the bath for the Applicant but gives him time alone. She helps him to get out of the bath, dry off and get changed.285

1. The Tribunal also asked Ms Taylor about what she would do if the Applicant had a bowel accident while out in the community. The following exchange took place:

Tribunal: If that happened and [the Mother] wasn't there, is that something that you would do as a support worker - to help clean him up?

Ms Taylor: I mean, I wouldn't feel comfortable, doing that. Like, I don't - as, you know, as a support worker, I don't have like those qualifications, to be doing that personal care side of things.

Tribunal: So, what are the qualifications for personal care?

Ms Taylor: Well, I think you have to have - do you not have to have nursing or like some sort of, more ---

Tribunal: I'm not aware of that. Is that something someone's told you?

Ms Taylor: Yes, well, I think that's, yes, I personally wouldn't do personal care...

Tribunal: Did someone tell you there was a qualification you had to do, before assisting someone to clean up their bottom, or if there's an accident?

Ms Taylor: No they haven't - no, no, no. But I wouldn't feel comfortable myself, doing that.

Tribunal: Well, I've heard from [the Mother] that - and I've seen in a number of documents, that [the Applicant] has trouble wiping his bottom, and that sometimes he gets poo in his fingers, because he has had a go, but not particularly successfully. Is it your evidence that, if he came out of a public toilet, with poo on his hands that you wouldn't assist, to clean up his bottom?

Ms Taylor: Well, I mean, I'd have to get that - like that permission to do that from [the Mother]. Like I wouldn't feel comfortable doing that personally. You know what I mean? Like, if I didn't have that - and I don't have that permission, to be doing that. So ---286

1. The Respondent submitted the Applicant's parents should not be funded to provide supports. The Respondent points to the Operational Guideline - Including Specific Types of Supports in Plan (2 December 2024) which states:

Generally, the NDIA will only fund family members to provide supports in exceptional circumstances.

• - there is a risk of harm or neglect to the participant;
• - there are religious or cultural reasons for funding a family member to provide supports; or
• - the participant has strong personal views, for example in relation to their privacy or dignity.

The NDIA will consider the circumstances of each case, any wishes expressed by the participant and also take into account what is reasonable to expect others to provide.

The NDIA will not fund a family member to provide personal care or community access supports unless all other options to identify a suitable provider of supports have been exhausted.

1. The Tribunal makes the following findings and observations:

(a) The Mother is a practising Christian with genuinely held religious beliefs. The Tribunal understands the Father identifies as Catholic but is unsure of his religious practice. The Tribunal is not satisfied the Applicant holds independent religious

beliefs on account of his severe intellectual disability. The Tribunal is satisfied that the family interacts broadly across the Australian community - running restaurants and take-away shops, participating in kids' soccer and doing swimming lessons. The Applicant attends a non-religious school.

(b) The Mother receives a carer payment from Centrelink which is paid to a caregiver for a child under 16 years of age based on the provision of constant care that severely restricts the person's capacity to undertake paid employment. There was no evidence before the Tribunal that the Mother has worked a regular salaried part-time or full-time job in recent years. She has been involved in setting up and running family businesses and has incurred associated director penalties from the ATO. The Tribunal is satisfied the Mother's limited work as a support worker in 2025 was motivated by a desire to show the Respondent that she was 'competent'. The Tribunal observes that the Respondent's objection to the Mother being a paid support was not premised on whether she was competent, either as a support worker or a parent.

(c) The Mother's intention to hire a nanny to look after her younger children if she was a paid support was observed to be inconsistent with her stated position that there are too many adults in the home. There was also no evidence about the sustainability of her proposal, noting challenges with staff retention are not unique to the support worker sector.

(d) The Applicant requires some assistance with toileting, particularly after passing a bowel motion. It is appropriate that family members or support workers provide personal care on these occasions for hygiene purposes and to support the Applicant's dignity which includes being clean and not smelling of faeces.

(e) Support workers routinely assist the Applicant with personal care tasks including bathing and getting changed. The Tribunal is satisfied that Ms Starr has appropriately assisted the Applicant wipe his bottom and infers it is likely other support workers and/or school staff assist with toileting from time to time. Pleasingly, it appears the Applicant is keen to develop greater independence with this task, which should be supported.

(f) The Mother's concern about the risk of the Applicant experiencing sexual abuse from support workers has not been consistently expressed and/or acted upon in other

areas of his life, particularly at school. Further, the Mother has routinely allowed support workers to take the Applicant to the pool knowing that he would need personal assistance to get changed before and/or after swimming. While the Mother's concerns are valid, they do not lead the Tribunal to conclude that she should be paid to provide supports to the Applicant.

(g) The Applicant is a participant who is at greater risk of violence, abuse, neglect and exploitation because of his severe intellectual disability and limited communication. As a community, it is a deeply unfortunate reality that we have been unable to eradicate the risk of abuse, particularly to children and/or people with disability. However, safeguarding measures can reduce the likelihood of abuse occurring and/or assist in the detection of abuse. For example, registered providers must complete a mandatory police check, maintain shift notes/records, conduct safeguarding training, and notify the NDIS Quality and Safeguards Commission of any reportable incident.

1. Dr Pincus did not support the Mother being a support worker for the Applicant, noting his concerns that they "spark each other off". While it is perhaps not the most helpful turn of phrase, the Tribunal understands this to mean that the Mother's emotional dysregulation may trigger the Applicant and vice versa. He opined that the Mother's strong Christian beliefs were compatible with mainstream Australian beliefs about what is right and wrong and that being a paid support may interfere with her role as parent, both to the Applicant and his younger siblings.287 The Tribunal accepts Dr Pincus' analysis.

1. Ms Rutherford identified the blurring of roles between parent and paid support may restrict the Applicant from engaging in developmentally appropriate activities particularly as he progresses through adolescence. She also considered there was a risk of conflict between the Mother's role as parent to her three younger children and being a paid support for the Applicant. Ms Rutherford opined the Mother could provide paid night-time support as this would not result in same type of conflict, however for the reasons provided, the Tribunal is not satisfied on the evidence that the Applicant requires active or inactive overnight support.288

1. The Respondent contended (footnotes omitted):
   1. [H]aving the Applicant's mother as a paid support worker for the Applicant is likely to pose a risk for the Applicant, the Applicant's mother and the other siblings, and thus should not be funded, by virtue of rule 5.1(a) of the Support Rules.
   2. Second, it is contended that it was never intended for the NDIS Act to fund the informal support that family members provide to participants, save for exceptional circumstances. Section 34(1)(e) of the NDIS Act expressly requires a consideration of what is reasonable to expect families, carers, informal networks and the community to provide, so as to determine what formal funding should be provided. It was not intended the NDIS to pay for the informal support that families are capable and willing to provide. The support that the Applicant's mother is intending to provide is informal in nature.
   3. Third, section 7(3) of the Miscellaneous Transitional Rules requires the support to be appropriately funded through the NDIS, and 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.
   4. The Applicant's mother is presently on the carers payment and carer allowance under the Social Security Act 1991 (Cth) (SS Act) in respect of the Applicant. The carer's payment is provided in circumstances where a person is personally providing constant care for a person aged under with a severe disability or severe medical condition, and the carer's allowance is also payable if, relevantly, the disabled child is a dependent child living in the family home. The carer's payment is made in lieu of income that the person has had to forgo because of their caring responsibilities. Accordingly, it is contended that the mother's delivery of care to the Applicant is more appropriately funded through Centrelink.289

1. The Tribunal is not satisfied on the evidence that there are exceptional circumstances to justify the Mother or Father being funded to provide supports. Further, the Tribunal is not satisfied that the Mother has exhausted all other options to identify a suitable provider of supports.

1. The Tribunal is satisfied that funding the Mother to provide support would interfere with the Applicant's age-appropriate individuation and development of greater independence, including exploration of the world around him.

1. The Applicant contends that the management of the funding ought to be plan-managed rather than Agency-managed.

1. The Respondent's lawyers wrote to the Mother on several occasions during the course of these proceedings to remind her of the obligation to spend funds in accordance with the plan pursuant to section 46 of the NDIS Act.290 On 4 December 2024, the Mother was sent the following:

The Agency notes you were informed about your obligations under s 46 of the NDIS Act on 2 April 2024 and again on 1 November 2024. Notwithstanding, the new plan that was implemented for [the Applicant] on 18 November 2024 has been significantly over-utilised in less than one month and the funding is not being used in accordance with plan. The Agency considers this presents an increased risk for the availability of supports for [the Applicant].291

1. The Respondent changed the Applicant's plan from plan managed to agency managed on or about 17 March 2025.292

1. On 13 March 2025, a person called the National Contact Centre expressing concern she would not be paid for an invoice. "The caller claims that the mother of this participant is misusing her funds, and when she is providing support at her house, she is being asked to look after the rest of the kids as well as the participant".293 The identity of the caller is unknown.

1. The Mother acknowledged she has spent lot of time preparing for the Tribunal proceedings and that she had used support workers to oversee the other children "a little bit".

1. The Mother claims the Applicant has not received any support since his plan became agency managed because she cannot find any registered provider able to work with her son. She also claims the family is housebound because the funds are agency managed. There was no objective evidence demonstrating any attempts to engage a new registered provider despite the inclusion of specialist support coordination funding to ensure "appropriate support to connect with and engage appropriate NDIS registered providers".294

1. With respect to overutilizing the Applicant's NDIS funds, the Mother stated:

290 See SR14 and SR16 of Respondent's supplementary hearing bundle.

291 SR19 of Respondent's supplementary hearing bundle, p298.

292 See SR20 of Respondent's supplementary hearing bundle, p299 and Respondent's further submissions dated 21 July 2021, p4.

293 SR21 of Respondent's supplementary hearing bundle, p301.

294 SR20 of Respondent's supplementary hearing bundle, p299.

We acknowledge that we have over-utilised funding in the past. However, this was a function of how desperate we were to engage supports for [the Applicant] and how underfunded the plan was".295

1. Counsel took the Mother through correspondence from the Respondent about her obligations to spend the funds in accordance with the plan. The following exchange took place:

Counsel: Do you remember being given that warning?

Mother: I remember reading that. But it's putting my life - my son's life at risk. So I'm not going to go against all these doctors and medical practitioners that are saying that he needs the support for his safety. I wanted him to make it here alive.

Counsel: This is a screenshot of the plan that started then in April 2024. And you'll see in the first category there's a released amount there in the centre and it says $61,000. And in the columns on the other side you see 'paid amount $69,000'. And then there's the negative number there, the remaining $8000.

Now the two dates here, the start date is the 2 April 2024, so that's from the emails. The end here is the 12 August 2024. So what that means - this is in regards to what you've just said about how you've overutilized the plan - that within that four month period or thereabouts, the allocation of $61,000 for the year has been overspent by $8000 within those four months.

Mother: Yes. Well then put the cost of support workers down. I don't know what else I have to say. This is the level that the doctors are saying that he needs and the medical practitioners are saying that he needs for his safety.296

1. The parents were asked whether they would spend funds in accordance with the Tribunal's decision regarding reasonable and necessary supports. At best, their answers were observed to be non-committal with respect to their obligations under section 46 of the NDIS Act. At worst, it appeared the Mother believes she alone should determine the level of funding available to the Applicant through the NDIS.297

297 Transcript Day 2, p26 - 28. See also SR17 of Respondent's supplementary hearing bundle, p294.

1. Section 74 is the relevant legislative provision regarding the management of a child participant's NDIS funds. Section 74(1)(a) provides that a person with parental responsibility may do things as required by the Act in relation to a child. Under section 74(2)(b), this person may, for example, request that the child's plan be managed wholly, or to the extent specified in the request, by a registered plan management provider nominated to manage the plan.298

1. The Mother requests that the Applicant's plan be wholly plan managed.

1. (a) a person mentioned in subsection (1) has made a request covered by paragraph (2)(b); and
2. (b) the CEO is satisfied that the management of the funding for supports under the plan to a particular extent by the registered plan management provider nominated by the person would present an unreasonable risk to the participant;

the statement of participant supports in the participant's plan must not provide that the nominated provider is to manage the funding for supports under the plan to that extent. (Tribunal's emphasis).

1. Under subsection 209(1) of the NDIS Act, the Minister may make rules prescribing certain matters, which form part of the legislative framework. The relevant rules in this matter are the National Disability Insurance Scheme (Management of Funding and Plan Management) Rules 2025 (Cth) (Management of Funding and Plan Management Rules 2025).

1. Part 3, Rule 6(3) sets out the matters that must be considered for the purposes of subsection 74(4A) of the NDIS Act when deciding whether plan management of the funding to a particular extent would present an unreasonable risk to a participant. Relevantly:

(a) whether, and the extent to which, any identified risk could be mitigated by:

(i) particular supports, safeguards or strategies that are, or will be, included in the participant's statement of participant supports to which the plan management request relates; or

(ii) any informal, community or mainstream supports the participant has in place;

(b) whether, and the extent to which, any identified risk has been mitigated in the past by:

(i) particular supports, safeguards or strategies that were included in the participant's statement of participant supports;

(ii) any informal, community or mainstream supports that the participant had in place;

(c) whether, and the extent to which, the participant is at risk of experiencing:

(i) physical, mental or financial harm;

(ii) exploitation or undue influence;

(d) any matters raised by the following that the CEO considers relevant:

(ii) if the person is not the participant - the participant;

(e) any other matters that the CEO considers relevant.

1. The Mother submitted in her closing submissions that to the extent that overutilisation represents an ongoing risk, it can be appropriately dealt with and managed through the implementation of one month funding periods.

1. The Respondent submitted that month-to-month funding periods have been introduced as a general measure to encourage compliance and budgeting more broadly, however the overspending in this case was extreme and in a particular class of non-compliance that could not be mitigated by monthly funding periods.

1. Further, the Respondent submits there is no evidence the registered plan manager has identified or mitigated any risks to ensure the Applicant's funding is managed and spent appropriately and in accordance with the Applicant's SOPS. It was unclear to the Tribunal whether the plan manager was subject to any disciplinary action and/or additional oversight because of the extensive overutilisation. It would seem they probably should be.

1. The Respondent also submits that the plan should be agency managed so only registered providers can be funded to provide supports, as this is likely to reduce the risk to the Applicant.

1. The Tribunal is of the view that the Mother displayed an attitude of disregard with respect to her obligations under section 46 during these proceedings. While there may be cases involving genuine safety issues necessitating overutilisation for a period, the Tribunal is not satisfied on the evidence that this is one of those cases.
2. The Tribunal is satisfied that plan management of the Applicant's plan would pose an unreasonable risk to him, noting his NDIS funds were repeatedly exhausted in a manner that threatened continuity of supports for him. The Tribunal is not satisfied that any supports, safeguards, or strategies can mitigate the risk to the Applicant.

1. The Mother's request for plan management is refused pursuant to section 74(4A). The Applicant's funds must remain agency managed.

1. The Mother seeks to have the Applicant's diagnosis of epilepsy recognised by the NDIS.

1. The Respondent contends that such a recognition falls outside the scope of the Tribunal's jurisdiction, which is to review the SOPS under a plan, pursuant to section 33(2) of the NDIS Act. The power to approve the SOPS under section 33(2) is limited to specifying the general supports provided, the reasonable and necessary supports that will be funded under the NDIS, the re assessment date and the management of the funding under the plan.299

1. The Respondent further contends that in determining the reasonable and necessary supports that will be funded under the NDIS, the Tribunal must determine whether the proposed support addresses the needs of the Applicant arising from impairment(s) that meet the disability or early intervention requirements under section 24 and 25 of the NDIS Act.300

1. While the Applicant suffered epileptic seizures when he was younger, Paediatric Neurology and Epilepsy Consultant Dr Yeeshy Singh noted in his letter dated 31 July 2023 that the Applicant had been seizure free for the last 5 years and there was a plan to wean the Applicant from Epilim. Dr Singh stated:

He has also been evaluated by the Queensland Children's Hospital. The family presented to the hospital on a few occasions. He underwent two EEGs including

one overnight EEG which recorded multiple arousal patterns without EEG correlation.301

1. Dr Pincus told the Tribunal that it was unclear to him why the Applicant was still being given Epilim. He indicated it was possible that the Applicant might experience epileptic seizures in the future, but it was not beneficial for him to be prescribed medication while he was seizure free.302

1. Dr Harte explained that it was his understanding that the Applicant had active epilepsy in the past. He said:

And I think there's been some effort by the involved neurologist, to qualify as to whether, witnessed nocturnal behaviours, and events that seem similar to the original seizure presentation, are actually epileptogenic, or not. And there's been much work done, I think - from memory, early last year - by the neurologist, to try to clarify and prolong the EEGs, et cetera, to help differentiate - seizure versus non-seizure. And I think the - my impression, is that parents were of a - more concerned about it being an active seizure disorder, ongoing. The neurologist - not so sure. So not clear cut.303

So if something's in a point of flux, where someone's been on an anti-epileptic for a good deal of time, a neurologist is considering taking it away, or counselling that way, but the parent hasn't come to terms with that, or isn't confident the neurologist has made the right conclusion - I think it's entirely reasonable to continue the anti-epileptic, until the neurologist, and the parent, come to a common consensus, as to whether the seizures have stopped, or not.304

1. The Mother claimed the Applicant wakes up regularly during the night and at times, appears to be experiencing something like a seizure. For example, on 11 April 2025, she wrote in shift notes:

[The Applicant] woke up all confused and yelled out to me, [the Applicant] was doing something that looked like a seizure, he was confused this lasted for 5 minutes. [He] then seemed very off and agitated, behaviours like this often happened with [the Applicant] use to have seizures.305

1. During the hearing, the Mother told the Tribunal the Applicant is "doing these things that look like seizures and they happen regularly, like daily, multiple times". She suggested his behaviours are "notably worse the next day". The following exchange took place:

Mother: Well, I pray for him. And then I will time it and see like if it stops and if it doesn't stop, we call an ambulance.

Tribunal: And when was the last time you called an ambulance? Mother: I was going to call one the other day?

Tribunal: But when was the last one, time you called?

Mother: I think maybe... About a year ago. About a year and a half ago.306

1. The Tribunal prefers the evidence of the medical practitioners because they are trained professionals who have developed their findings and recommendations based on objective testing and medical investigations.

1. The Tribunal is not satisfied on the evidence that the Applicant currently experiences epileptic seizures. In these circumstances, the Tribunal cannot be satisfied that the Applicant has a disability attributable to a neurological impairment, namely epileptic seizures. Section 24(1)(a) is not met.

1. The Mother did not specifically identify a support as necessary to address the needs of the Applicant arising from an impairment, namely epileptic seizures. The Tribunal infers that part of the Mother's claim in relation to the need for overnight active support is based on epileptic seizures. To the extent that the Mother's request for overnight support is based on epileptic seizures, the Tribunal finds that such support is not necessary to address the needs of the Applicant arising from an impairment which meets the disability requirements. Section 34(1)(aa) is not met with respect to overnight support for epileptic seizures.

Augmented and Assistive Communication (AAC) application and device

1. In her report dated 18 December 2024, Ms Cope described the Applicant's need for an AAC application and device:

[The Applicant] requires access to assistive communication technology as a key area of support. Currently, [the Applicant] is severely limited in his ability to make

choices, express discomfort or seek help when necessary... [He] has trialled the Liberator Rugged 10 device with Language Acquisition through Motor Planning software (LAMP). This device allowed him to request for items and places, make comments and be understood by familiar and unfamiliar partners.307

1. Ms Cope indicated the recommended hardware device - the Nova Rugged Liberator (Liberator), costs between $7000-$8000 and comes with a comprehensive warranty for accidental damage.

1. The Tribunal heard that the Applicant uses an AAC called Proloquo2Go (Proloquo) on an iPad at school.308 The family also have a low-tech communication book called a Pragmatic Organisation Dynamic Display (PODD). It appears the PODD has not consistently been used in the home.309

1. As mentioned above, Ms Cope recommended a different AAC software called LAMP, opining this would provide the Applicant with the "means to communicate, therefore reducing frustration and the frequency of behavioural incidents.310 In her oral evidence, Ms Cope explained LAMP "focuses on motor planning and it's good for people that have very limited or no literacy abilities". She said Proloquo2Go "is more for individuals that have literacy abilities and understand categories".311

1. Ms Cope told the Tribunal she thought it was important for support workers to have communication training and learn how to use an AAC before starting work with the Applicant. She indicated that for complex clients like the Applicant, it was appropriate for stakeholder meetings once or twice a term with the school and other treating practitioners.312

1. On 18 October 2024 and contrary to Ms Cope's position, OT Ms Middlebrook recommended the Applicant be funded for his own iPad and the Proloquo application.313 She had previously recommended an iPad for use during therapy sessions in her report dated 23

April 2024.314 The Mother requested an iPad when she requested external review of the Respondent's decision by the Tribunal.315

1. Ms Cope stated in her December 2024 report that "it would not be appropriate for [the Applicant] to access LAMP on an iPad, as an iPad has been easily broken in the past".316 Ms Cope explained that funding for a Liberator would help ease the financial burden of the family replacing broken iPads.317 Ms Cope did not have any data about how often the Applicant breaks an iPad but indicated the Mother told her the Applicant had broken 7 devices.318 The Tribunal observes there was no objective evidence of this presented at hearing. Further, this appears to be the first mention of an iPad being broken in over 1500 pages of evidence and occurred shortly after the October 2024 legislative amendments, which had the effect of excluding iPads as a NDIS support.

1. Ms Cope told the Tribunal the Applicant has made limited progress with the AAC because he only uses the LAMP system with her. When asked why the family hadn't downloaded the LAMP application on one of their iPads, she suggested the family's iPad screen is not big enough.319 The Tribunal did not find Ms Cope's explanation convincing.

1. Ms Cope was observed to overly focus on potential damage to an iPad and sibling dynamics associated with iPad use. She did not, in the Tribunal's view, provide a coherent explanation for why the LAMP or Proloquo AAC has not been used by the family to support the Applicant's communication. This is despite clear evidence the Applicant will require direct assistance from a parent or support worker to use an ACC for some time going forward.320 The Applicant will not, for example, be carrying around an iPad or Liberator device for independent communication purposes in the foreseeable future.

1. It was not apparent from Ms Cope's evidence that she had explored strategies with the family to distinguish when the Applicant may use the iPad for recreation purposes and when

he should use it for communication purposes. Significantly, Ms Cope did not express any reservations about the Applicant using 3 different AACs or recommending a different AAC application to the one used at school.

1. There was extensive evidence before the Tribunal that the Applicant continues to freely access an iPad and/or phone for entertainment purposes.321 The Tribunal heard that both the LAMP and Proloquo ACC systems cost about $300.322

1. It was unclear to Tribunal why an ACC has not been downloaded on the iPad routinely used by the Applicant to support his communication, particularly in circumstances where a speech therapist is working with the family and the Mother told the Tribunal she spent $400 on a water feature for a rental property.323 The Respondent indicated on the 27 May 2025 that it would fund the application subject to the provision of a quote. At the conclusion of the hearing on 4 September 2025, the software had not been downloaded by the family.

1. By Ms Cope focusing on justifications for hardware on behalf of the Mother, rather than ensuring an appropriate AAC application is available for her client to use on a family iPad, the Applicant has missed out on important opportunities to develop his communication.

1. Both Dr Pincus and Ms Rutherford expressed the view that only one AAC vocabulary should be used.324 Ms Rutherford has experience with both applications but indicated in her report she was unable to form a view on the more suitable application based on the limited information provided by Ms Cope and Ms Middlebrook. She noted that Proloquo is often preferred by teachers.325 Ms Rutherford noted that the Applicant "has not had consistent access to a formal communication system... It is very likely that implementing consistent and appropriate alternative and augmentative communication system would over time reduce his behaviours of concern".326

1. The Respondent indicated to the Tribunal during the hearing that it would fund either the LAMP or Proloquo, but reiterated Ms Rutherford's evidence that only one application should be used and the Proloquo application is used at the Applicant's school.

1. The Tribunal is satisfied on the evidence that either the LAMP or Proloquo AAC is reasonable and necessary. The Tribunal will leave it to the family and Ms Cope to decide the most suitable AAC but strongly suggests a copy of this decision is provided to Ms Cope for her consideration prior to making a final decision.

1. The Tribunal is not satisfied on the evidence that several iPads have been broken and/or that the Applicant cannot use an iPad for the purpose of accessing an AAC. In these circumstances, the Tribunal does not accept the Liberator hardware is value for money pursuant to section 34(1)(c).

Section 34(1)(f) and the question of NDIS supports

1. The recent decision of FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114 sets out the relevant procedure for considering supports since the Amended Act came into effect on 3 October 2024.
   1. Having regard to the provisions of the principal Act as amended, the Transitional Rules, and the Supports Rules, the structure of the enquiry involved in this review involves two stages and the following steps:

Stage 1 Ascertain if the requested support is an "NDIS" Support as defined. This inquiry is focused on the support, not the participant.

Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.

If the answer to that question is "yes", then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f) (subject to a replacement support determination being made, as to which see following).

If the answer to that question is "no", then proceed to step 2 of stage 1:

Step 2: Determine if the requested support is of a character capable of falling within the scope of a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules by reference to the description of supports that can fall within the scope of that category contained in column 2 of that Table.

If the answer to that question is "no", then the requested support will not be a NDIS Support and cannot be approved for including in a SoPS because of s 34(1)(f).

If the answer to that question is "yes", then the requested support will be a NDIS Support that is capable of being approved for inclusion in a SoPS by operation of s 34(1)(f), and stage 2 of the enquiry is reached.

Stage 2: Ascertain if the requested support satisfies each of the other criteria specified in s 34(1)(aa) to (e) and the associated Supports Rules. There is some overlap of the stage 1 and 2 enquiries. However, in my opinion stage 2 is primarily a participant focused enquiry. That is, it seeks to establish the benefit of the support to the participant. To the extent that stage 2 also requires examination of the efficacy of the support per se it adds nothing to the outcome of the stage 1 enquiry in my opinion.

1. The question of whether a requested support is, or is not, a NDIS support is a mixed question of fact and law. The issue of fact to be determined is whether the requested support falls within a category of items specified in column 1 of the Tables to Schedules 1 and 2 of the Transitional Rules. If it does, it will either be, or not be, a NDIS support by operation of law.
2. It is important to observe that in the scheme of the Transitional Rules it is not sufficient to find that a support is not excluded as a NDIS Support by operation Schedule 2. It must also be found to be included as a NDIS Support by Schedule 1. That is, both Schedules have work to do in determining what is not a NDIS Support. To illustrate this point using absurd examples, a giraffe, hot-air balloon, and space craft are not excluded as NDIS supports by Schedule 2, but they are incapable of falling into any of the categories of NDIS Supports in Schedule 1. They are therefore not NDIS Supports by operation of Schedule 1, rather than Schedule 2.
3. If a requested support is not a NDIS Support by operation of the Transitional Rules, the criteria specified by s 34(1)(f) of the principal Act as amended cannot be satisfied. Section 34(1) is conjunctive in its terms, as is indicated by use of the words 'the CEO must be satisfied of all of the following ...' (emphasis added). As each of the requirements of s 34(1) must be met before a support can be approved for inclusion in a SoPS there is no utility in considering if the requested support meets the other requirements of that section. The enquiry ends with the determination that the requested support is not a NDIS support.

1. The Tribunal will consider the requested supports in line with this approach.

Request for sensory necklaces totalling $822.72 per year

1. There was limited evidence before the Tribunal about the nature of the sensory necklaces. Ms Middlebrook wrote that without the necklace, the Applicant "resorts to behaviours of concern such as spitting, biting his hand, and constant chewing of his shirt" which becomes wet from saliva within a few minutes.327 The Mother claimed the Applicant "will soak around 5-10 tops daily as he almost always holds them in his mouth" and goes through "8 cheer

necklaces per month".328 She requested 4 pieces per month at a cost of $822.72, but did not provide a quote for the product.

1. Ms Starr gave evidence that she gives the Applicant a clean cloth to chew. She also gave evidence about packing extra underpants / tracksuit pants for school, but not extra t-shirts.

1. Without detailed particulars of the requested support, it is difficult for the Tribunal to determine if the support falls within Schedule 2 of the Transitional Supports Rules. It could be that the sensory necklace is captured by Item 4(g) (toys) or Item 5(a) (jewellery) of Schedule 2 which would mean it is not a NDIS support.

1. As the Tribunal is unsure, it elects to proceed to Schedule 1 of the Transitional Support Rules which lists supports considered a NDIS support. Of the 36 categories of support, the Tribunal was unable to identify an obvious category capable of incorporating a sensory necklace.

1. The Tribunal finds a sensory necklace is not a NDIS support by operation of Schedule 1 of the Transitional Rules. Section 34(1)(f) is not met.

Sustagen Hospital Formula totalling $1,455.00 per year

1. The Respondent contends that Sustagen hospital formula at a cost of $1,455.00 per year is a health product that falls within Item 3(a) of Schedule 2 of the Transitional Supports Rules. This includes food, beverage, cleaning, household and health products.

1. The Tribunal agrees. Sustagen hospital formula is not a NDIS support. Section 34(1)(f) is not met.

1. The Mother seeks $10 per day for durable clothing. She did not provide further particulars regarding durability or explain how she arrived at a figure of $10 per day. There was no

evidence the clothing was adapted or modified to address the functional impairments of the Applicant pursuant to section 4 of the Transitional Supports Rules.

1. The Respondent submits that Item 5(c) of Schedule 2 of the Transitional Supports Rules excludes standard clothing as a NDIS support.

1. The Tribunal agrees. A $10 daily budget for clothing is not a NDIS support. Section 34(1)(f) is not met.

1. The Mother seeks funding for "basic utensils to prepare a meal"329 and modified cutlery.330

1. The Respondent contends that $150 is sufficient funding to cover any low-cost assistive technology. Ms Rutherford reported observing the Applicant eat pasta using a standard fork.

1. The Tribunal agrees that $150 is sufficient to cover any low-cost assistive technology including modified cutlery. The Tribunal is not satisfied that utensils to prepare a basic meal are supports for the participant. Accordingly, section 34(1)(f) is not met.

1. The Mother seeks a Volkswagen Caravelle vehicle. In the alternative, she seeks to rent, rather than purchase the vehicle.

1. Item 6(b) of the Schedule 2 of the Transitional Supports Rules excludes motor vehicles from being considered a NDIS support. A motor vehicle is not a NDIS support and section 34(1)(f) is not met.

1. Item 6(g) of Schedule 1 of the Transitional Supports Rules includes transport assistance to participants who cannot travel or use public transport independently. This includes transport to community-based activities, school and costs associated with the use of taxis.

1. The Mother did not specify any particular activities for which a rented vehicle would be used to transport the Applicant. Rather, the Tribunal understands she was seeking to rent the vehicle full time. The Tribunal observes that the form of expenditure does not change the nature of the support and therefore vehicle rental is also excluded by Item 6(b) of Schedule 2.

1. The Respondent further contends that the transport of children is a reasonable support for parents to provide pursuant to section 34(1)(e). The Tribunal agrees.

1. The Applicant has been funded 3 hours per week for cleaning.

1. Item 23 of Schedule 1 of the Transitional Supports Rules states:

Supports that provide assistance with essential household tasks that a participant is not able to do themselves because of their disability. This includes the following:

(a) Meal preparation and delivery

(b) House or yard maintenance

(c) Cleaning and laundry

1. The Respondent contends that the request for cleaning support is premised, not on the Applicant being unable do it himself, but rather, the need for more cleaning because of his disability.331 The Respondent further contends there is insufficient evidence available to separate out the Applicant's cleaning support needs from the rest of the family's needs.

1. In the Respondent's further submissions, it is contended that sections 34(1)(aa), (b), (c),(e) and (f) are not met.

In relation to the last point, the Respondent notes that the requirement under item 23 (household tasks) of Schedule 1 to the Transitional Rules is for supports (such as cleaning) to provide assistance with essential household tasks that a participant is not able to do themselves because of their disability are NDIS supports.332

1. The Tribunal considers that although many 13-year-old adolescents do not necessarily undertake significant chores around the home, they do not create the same level of mess

332 Respondent's further submissions dated 21 July 2025, p1.

or need for cleaning as the Applicant. There was clear evidence that the Applicant has toileting accidents in his bed, that he gets poo on his hands and touches other surfaces, has difficulty wiping his bottom and splashes water around in the bathroom. He also drops food in and around the kitchen when eating.

1. In these circumstances, the Tribunal is satisfied that because of his disability, the Applicant does create more mess, and by necessity, more cleaning that is distinguishable from the rest of the family. The Tribunal is also satisfied that because of his disability, he is unable to wash his sheets, clean up poo, dry the bathroom after his bath, wipe kitchen surfaces and clean the kitchen floor.

1. However, the Tribunal considers that incidental cleaning and tidying up after the Applicant already forms part of the support worker hours found to be reasonable and necessary for the Applicant. Support worker records indicate they routinely tidy up after the Applicant, particularly in the morning and provision for this is already incorporated into the 2 hours of personal care in the morning and 2 hours for personal care in the evening on weekdays. Ideally, the Applicant should be encouraged to assist with some of these tasks as part of day-to-day capacity building and active support.

1. To that extent, cleaning is a duplication of supports and is prohibited by Rule 5.1(c).

1. Ms Middlebrook first recommended a Carrot 3000 car seat for the Applicant in her report dated 23 April 2024:

[The Applicant] displays severe behaviours of concern while traveling in the car such as unbuckling his seatbelt and moving around in the car, opening the car door, winding down windows, pressing buttons, pulling at the gear stick, and kicking, hitting, pinching, and spitting at others also in the car. For [the Applicant's] safety and the safety of others, it is vital [the Applicant] receive the necessary funding to provide him with 2 x Small Carrot 3000 Car Seats (one for his family car and the other for the school bus). Lower cost alternatives do not provide the required safety features and accessories needed for [the Applicant's] safety while in the car.333

1. In her oral evidence, Mr Middlebrook explained that the main reason for recommending the car seat was for postural support and not for behaviour.

1. Counsel suggested to Ms Middlebrook that there was no mention of postural support in her first letter dated 23 April 2024 regarding the car seat, which focused on the Applicant's safety arising from behaviours of concern. Ms Middlebrook insisted she referenced postural support in a letter prior to the 23 April 2024. She was unable to locate the document while giving her oral evidence. Ms Middlebrook was invited to send it to the Respondent's lawyers and the Tribunal; however this evidence was not forthcoming.

1. In her oral evidence, Ms Middlebrook confirmed the car seat would not address behaviours - he could still pinch, pull hair and kick. However, she insisted the car seat was for the Applicant's safety and the safety of those around him. She conceded that she had not considered a dividing screen to help mitigate the impact of behaviours on the driver.

1. Ms Middlebrook observed one attempt to use a Houdini harness on the Applicant and was of the view that a harness was not appropriate. She gave evidence the Applicant sat in the Carrot 3000 seat but they were unable to go for a drive for insurance reasons.

1. Ms Rutherford provided the following description of the Applicant's seated position:

During the assessment, [the Applicant] typically sat with significant posterior pelvic tilt, and in a twisted position with his knees rotated to left, and his feet under his thighs. This was observed both when sitting on a chair and on the floor. Clinically, this positioning is typically observed when a person requires a wider base of support to provide stability due to poor core strength... Providing seating with more postural supports may improve his sitting posture and comfort and subsequently enable him to sit longer, however, this would need to be trialled as it is likely this has now become his preferred sitting position, and he would resist the introduction of any positioning supports that impact his legs.334

1. When in the car, Ms Rutherford noted the Applicant requires a buckle guard to prevent him from removing his seat belt - a legal requirement for travel in a vehicle.

1. The parents informed Ms Rutherford that they had recently obtained a Houdini Harness. It has anti-submarining straps to prevent the Applicant from sliding down the seat. She noted

that while the Houdini Harness may not be ideal for positioning, it may have positive effects on behaviour and is unlikely to cause any harm given the amount of time the Applicant spends in the car. One model includes additional car tether straps, enabling easy and cost-effective use across multiple vehicles. Ms Rutherford acknowledged that putting on the harness may trigger behaviours of concern, particularly if the Applicant doesn't want to go somewhere.335

1. In relation to the Carrot 3000 car seat, Ms Rutherford noted this seat would inhibit the Applicant from adopting his preferred leg position, which could also trigger behaviours of concern. "He will need to cooperate to get into the seat and allow the 5-point harness to be secured.336 Ms Rutherford noted that Ms Middlebrook's reported dated 16 August 2024 did not state that a Carrot 3000 had been trialled with the Applicant. She thought it important to trial the seat to ensure he tolerates the seated positioning.337

1. The Father indicated to the Tribunal that he thought the Houdini Harness made the most sense in terms of being able to use it across multiple vehicles.

1. The Respondent submitted Ms Middlebrook had not worked through the options to ensure the least restrictive practice was identified. In the Respondent's submission, when assessing options, there needs to be a clear weighting of safety issues alongside the least restrictive practice.

1. The Tribunal is not satisfied on the evidence that the Carrot 3000 was recommended by Ms Middlebrook for postural reasons. The Tribunal is not satisfied that the Carrot 3000 is the least restrictive practice nor the most effective in terms of mitigating the Applicant's behaviours. It would seem a safety screen may prove to be a more effective measure in terms of creating a physical barrier between the Applicant and the driver.

1. Given the safety issues raised in this application, it is unclear why the minimum safety requirement to prevent the unbuckling of the Applicant's regular seat belt while travelling has not been implemented and included in the behaviour support plan.

1. The Tribunal is not satisfied the Carrot 3000 x 2 is effective and beneficial having regard to good practice which includes identifying the least restrictive practice. Section 34(1)(d) is not met. Further, to the extent that the request is premised on the Applicant's behaviours associated with severe emotional dysregulation, section 34(1)(aa) is not met.

Request for an apology and compensation from the Respondent

1. The Respondent submits that the Tribunal has no jurisdiction to consider these matters because under section 103 of the NDIS Act, the decision before the Tribunal relates to a decision about the Applicant's SOPS made pursuant to section 33(2) of the NDIS Act.

1. The Tribunal understands the Mother may find parts of this decision confronting. The Tribunal acknowledges that there are a range of stressful factors impacting the Mother's life and does not seek to diminish the love, care and support that she has provided to the Applicant and her other children over many years. The Tribunal hopes that the end of these proceedings combined with the funded supports will enable the family to move forward in a way which promotes Applicant's continued development, independence, wellbeing, and safety.

22 - 25 June, 1 August and 4 September 2025 - by video

Amendments to the National Disability Insurance Scheme Act

1. The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Amending Act) came into force on 3 October 2024. Significant changes includes the following:

(a) Section 10 introduced a definition of NDIS support.

(b) Section 34(1)(aa) provides that a support must be necessary to address needs arising from an impairment in relation to which the participant meets the disability or early intervention requirements.

(c) Section 34(1)(f) stipulates a support must be a NDIS support.

1. Item 129(1) of Schedule 1 of the Amending Act specifies that changes to sections 33, 34 and 35 apply in relation to a statement of participant supports included in an old framework plan for a participant if the statement is approved or varied on or after commencement.

1. The Minister also made transitional rules which accompany changes to the NDIS Act and take effect from 3 October 2024.

1. The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Transitional Supports Rules) outline supports that are and are not considered NDIS supports for the purposes of section 10 of the NDIS Act. Section 10(2) of the NDIS Act provides that when making rules for the purposes of declaring what are considered NDIS supports, the Minister must be satisfied that the support is appropriately funded or provided through the NDIS.

1. Further, the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Transitional Miscellaneous Rules) require the decision-maker to also be satisfied that the support is most appropriately funded or provided through the National Disability Insurance Scheme and not another service system.
2. The Amendment Act does not provide for any changes to the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Supports Rules) and they continue to apply.

1. There are a range of other rules which may apply to an application for review and will be discussed where relevant in the reasons for decision.

National Disability Insurance Scheme Act 2013

1. The NDIS was established under the NDIS Act. Section 3 sets out the objects of the Act and Section 4 identifies the general principles guiding actions taken under the Act.

1. For example, sections 3(1)(c), (e) and (g) relevantly state the objectives of the Act are to support the independence and social and economic participation of people with disability, enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.

(a) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development (section 4(1));

(b) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability (section 4(2));

(c) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime. (section 4(3));

(d) ...

(e) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation (section 4(6));

1. A person must meet the access criteria to become a participant of the NDIS (section 21) which includes that the person was aged under 65 when the access request was made (section 22), that they meet the residence requirements (section 23) and either meet the disability requirements (section 24) or early intervention criteria (section 25).

1. Under item 126 of Schedule 1 to the Amending Act, the amendments to section 24 and 25 apply to access requests that are made to the NDIA by a prospective participant on or after 3 October 2024. This means these amendments will only apply to access matters that are before the Tribunal if the prospective participant made an access request on or after 3 October 2024.

(1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(i) communication;

(ii) social interaction;

(iii) learning;

(iv) mobility;

(v) self-care;

(vi) self-management; and

(d) the impairment or impairments affect the person's capacity for social or economic participation; and

(e) the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

(4) Subsection (3) does not limit subsection (2).

Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).

Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

1. If the Applicant does not meet the disability requirements, the Tribunal must consider whether the Applicant meets the early intervention requirements set out in section 25 of the Act:

(1) A person meets the early intervention requirements if:

(a) the person:

(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or

(iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self-care or self-management; or

(ii) preventing the deterioration of such functional capacity; or

(iii) improving such functional capacity; or

(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer; and

(d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).

Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

1. Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Section 27 of the Act provides that the NDIS rules may prescribe criteria to be applied in assessing the disability requirements and early intervention requirements of the Act. The relevant rules are the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth) ('the Access Rules').

1. In relation to the question of permanency of an impairment, the Access Rules state:
   • 5.4 An impairment is, or is likely to be, permanent (see paragraph 5.1(b)) only if there are no known, available and appropriate evidence-based clinical, medical or other treatments that would be likely to remedy the impairment.
   • 5.5 An impairment may be permanent notwithstanding that the severity of its impact on the functional capacity of the person may fluctuate or there are prospects that the severity of the impact of the impairment on the person's functional capacity, including their psychosocial functioning, may improve.
   • 5.6 An impairment may require medical treatment and review before a determination can be made about whether the impairment is permanent or likely to be permanent. The impairment is, or is likely to be, permanent only if the impairment does not require further medical treatment or review in order for its permanency or likely permanency to be demonstrated (even though the impairment may continue to be treated and reviewed after this has been demonstrated).
   • 5.7 If an impairment is of a degenerative nature, the impairment is, or is likely to be, permanent if medical or other treatment would not, or would be unlikely to, improve the condition.

1. In relation to substantially reduced functional capacity the Access Rules provide:
   • 5.8 An impairment results in substantially reduced functional capacity of a person to undertake one or more of the relevant activities - communication, social interaction, learning, mobility, self-care, self-management (see paragraph 5.1(c)) - if its result is that:

(a) the person is unable to participate effectively or completely in the activity, or to perform tasks or actions required to undertake or participate effectively or completely

in the activity, without assistive technology, equipment (other than commonly used items such as glasses) or home modifications; or

(b) the person usually requires assistance (including physical assistance, guidance, supervision or prompting) from other people to participate in the activity or to perform tasks or actions required to undertake or participate in the activity; or

(c) the person is unable to participate in the activity or to perform tasks or actions required to undertake or participate in the activity, even with assistive technology, equipment, home modifications or assistance from another person.

1. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal, unless there is good reason not to do so.338

1. In Mulligan v National Disability Insurance Agency [2015] FCA 544, Mortimer J held that the legislation pertaining to the access criteria requires "a relatively high degree of precision by decision-makers... in assessing what a person can or cannot do. The assessment to be undertaken is avowedly functional and multifaceted".339 The Full Court of the Federal Court of Australia in National Disability Insurance Agency v Foster [2023] FCAFC 11 also explained that the legislation requires a functional, practical assessment of what a person can and cannot do.340

1. A participant's plan comprises a statement of goals and aspirations, which is prepared by the participant (section 33(1)) and a statement of participant supports (SOPS), which is prepared with the participant and approved by the Agency (section 22(2)).

1. The SOPS must specify, amongst other things, the reasonable and necessary supports that will be funded under the NDIS (section 33(2)(b)).

1. In deciding whether to include the requested supports in the participant's SOPS, the Tribunal must have regard to the matters set out in section 33(5) of the NDIS Act which includes consideration of section 34(1) of the NDIS Act.

338 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

1. The Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act when deciding what supports to include in a SOPS.341 The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.342

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

(aa) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

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

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

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

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

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

(f) the support is an NDIS support for the participant.

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

(b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental

factors or the impact of another impairment in relation to which the participant does not meet either of those requirements.

341 National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201].

342 For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

1. The term 'reasonable and necessary support' is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308, Mortimer J made the following observations at [91] (prior to the amendments):

Whether a support is "reasonable" requires a different assessment to whether a support is "necessary". Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports".

1. The Full Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79, considered the meaning of reasonable and necessary supports:

[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.343

1. Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary including whether they represent value for money, are effective and beneficial having regard to good practice and take account of what is reasonable to expect families to provide.

1. Rule 3.1 regarding value for money (section 34(1)(c)) states:
   • 3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost;

(b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d) for supports that involve the provision of equipment or modifications:

(i) the comparative cost of purchasing or leasing the equipment or modifications;

(ii) whether there are any expected changes in technology or the participants circumstances in the short term that would make it inappropriate to fund the equipment or modifications;

(e) whether the cost of the support is comparable to the cost of supports of the same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care).344

1. Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:
   • 3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include:

(a) published and refereed literature and any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

• 3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

1. Rule 3.4 outlines the matters to be considered when assessing what is reasonable to expect families, carers, informal networks, and the community to provide under section 34(1)(e).
   • 3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

(a) for a participant who is a child:

(i) that it is normal for parents to provide substantial care and support for children; and

(ii) whether, because of the child's disability, the child's care needs are substantially greater than those of other children of a similar age; and

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

(iii) the extent of any risks to the wellbeing of the participant's family members or

(iv) whether the funding or provision of the support for a family would improve the child's capacity or future capacity, or would reduce any risk to the child's

(b) for other participants:

(i) the extent of any risks to the wellbeing of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community; and

(ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as:

• (A) the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and
• (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and
• (C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and

(iii) the extent to which informal supports contribute to or reduce a participant's level of independence and other outcomes;

(c) for all participants - the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

1. Part 5 contains general criteria regarding supports and supports that will not be funded. Rules 5.1 and 5.2 provide:
   • 5.1 A support will not be provided or funded under the NDIS if:

(a) it is likely to cause harm to the participant or pose a risk to others; or

(b) it is not related to the participant's disability; or

(c) it duplicates other supports delivered under alternative funding through the NDIS; or

(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs.

• 5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

(b) costs that are ancillary to another support that is funded or provided under the participant's plan, and which the participant would no otherwise incur.

• 5.3 The following supports will not be provided or funded under the NDIS:

(a) a support the provision of which would be contrary to:

(i) a law of the Commonwealth; or

(ii) a law of the State or Territory in which the support will be provided;

(b) a support that consists of income replacement.