CHPH and National Disability Insurance Agency (NDIS) [2025] ARTA 2393 | Case summary

CHPH and National Disability Insurance Agency (NDIS) [2025] ARTA 2393 | Case summary | Zoe

[29]

As will appear, many of the key facts are not in dispute.
CHPH was accepted as a participant in the NDIS on 9 August 2018.
CHPH is 8 years old. CHPH has a complex neurodevelopmental disability which is probably related to an undiagnosed underlying genetic disorder. CHPH's condition has been described as quadriplegic cerebral palsy complicated by movement disorder and increased motor tone (hypotonia).[1] CHPH functions at a Gross Motor Function Classification Scale Level IV.
There is no dispute, and the evidence confirms, CHPH's condition is complicated by learning and intellectual disability, global developmental delay, dysphagia requiring percutaneous endoscopic gastrostomy (PEG) and feeding tube in August 2023, vision disorder (including left esotropia, left amblyopia and hyperopia), hip dysplasia, sleep-disordered breathing, (non-verbal) communication disability, sensory disorder, anxiety, constipation, Raynaud phenomenon, drooling and repetitive movement. CHPH's condition is described as lifelong and permanent.[2]
CHPH's disability is attributable to impairments which result in substantially reduced functional capacity in all domains, including communication, social interaction, learning, mobility, self‑care and self‑management.
CHPH has developmental and intellectual impairment, although the extent of the impairment is difficult to assess. CHPH is non-verbal and requires communication support using communication aids, including a pragmatic organisation dynamic display (PODD) device. CHPH requires active and assistive technology support to stand and walk. CHPH requires active support with all transfers.
CHPH has extensive disability support needs. These are detailed in evidence given by the mother,[3] the father,[4] CHPH's treating doctors[5] and allied health workers, including CHPH's physiotherapist,[6] speech pathologist,[7] psychologist,[8] registered nurse[9] and long-term occupational therapist who completed a detailed functional assessment on 8 October 2024[10] and a supplementary report on 26 and 30 April 2025.[11]
CHPH takes at least 9 medications daily, with additional medications as required. For CHPH's health and safety, detailed records are kept of CHPH's PEG feeding, bowel movements, vomit tracking and medications, as well as daily logs of incidents, activities, appointments and interventions.
CHPH requires care 24 hours per day. This includes active 1:1 support with all activities of life in domains of mobility, feeding, communication, personal care and to ensure safety. CHPH has significant issues with feeding, including oral aversion, poor bulbar function and high risk of choking, as well as use of the PEG feeding tube and related feeding pump machine. CHPH requires 1:1 supervision of behaviour and interactions as CHPH has oral sensory seeking behaviours which can lead to personal safety risks, such as choking or electrocution.
CHPH requires 2:1 support from time to time each day as there is a high risk of CHPH pulling out or dislodging the PEG device whenever it is exposed, such as during bathing, toileting and dressing, or during PEG feeding transfers. This has occurred on 20 occasions in 2024 and 21 occasions up to the date of the hearing in 2025. Re-insertion of the PEG device requires specialist training and skills, which both parents possess, although attendance at a hospital emergency department may be required if complications or delays reinserting the device arise. Two adults are required to manage heavier equipment, such as CHPH's wheelchair, during car transfers.
CHPH has a younger sibling (who I will refer to as 'KPHDJ') who also has severe physical and intellectual disabilities which have been attributed to the same undiagnosed genetic disorder. KPHDJ is a participant in the NDIS who requires active 1:1 support, 24 hours per day, with some 2:1 support. KPHDJ has a more severe breathing disorder than CHPH and requires oxygen. Like CHPH, KPHDJ requires feeding support using a PEG tube and has impairments across all domains of daily life. In combination, the requirement for high intensity support is increased by risks associated with dislodgement or damage to either of the children's PEG feeding tubes or KPHDJ's oxygen supply tube.
Three suitably trained carers or support workers are required at times during the morning and afternoon routines on school days: 1 adult providing high intensity 1:1 support to each child and a third adult to prepare, pack and stand-in to care for CHPH or KPHDJ while a parent showers, dresses and prepares for the day.
CHPH and KPHDJ have no other siblings. They reside with their parents in the community.
CHPH and KPHDJ attend a public primary school with the assistance of support workers and appropriately trained teaching staff. On school days, from 9:30am to 3:00pm, CHPH is provided with 1:1 high level support at school. This is funded through the public education system and the school.
The parents, particularly the mother, are primary carers for CHPH and KPHDJ.
The mother manages supports and dealings with the NDIA for both children.
The mother has part-time employment as an occupational therapist. Her capacity to engage in employment is reduced by caring and support management for her children.
The father is employed full-time. He is the primary income-earner. His capacity to earn in employment has been adversely affected by his role caring for the children, particularly during in the period from February 2025 when NDIS funding for supports was exhausted and not replaced.

[32]

The parents requested internal review of the SOPS, which they considered was insufficient to meet CHPH's disability support needs.
On 19 July 2024, an NDIA reviewer issued a decision under s 100(6) of the NDIS Act. The reviewer decided to vary the approved SOPS and include additional supports.[15]
The parents were not satisfied the additional supports were sufficient to meet CHPH's disability support needs and applied for review by the AAT (presently, the Tribunal).
During the Tribunal proceedings, expenditure on supports for CHPH exceeded the funding approved. The parents sought additional funding.
On 7 January 2025, the NDIA varied the SOPS approved for CHPH and provided additional funding for assistance with daily living and assistance with social, economic and community participation. A further plan document was issued with notice of the variation.[16]
On 9 January 2025, the mother sustained an injury which required surgery and a 6-week recovery period in which her capacity to provide support and care to the children was significantly reduced.
The parents sought approval of additional supports. I understand this was declined in February 2025 and NDIS funding for CHPH's daily supports was exhausted soon thereafter.
The family subsequently experienced a number of difficulties, including all family members contracting influenza, which required CHPH and KPHDJ to be hospitalised and it significantly reduced the parents', particularly the mother's, capacity to provide support. The father took unscheduled leave from his employment and the parents struggled to cope without adequate support. They requested an expedited hearing in the Tribunal, which was granted.
On 19 July 2025, shortly before the hearing of the application, the NDIA notified the parents CHPH's 'plan has been continued'.[17] I was informed the notice was issued consequent to a decision of a delegate of the CEO to vary the re-assessment date of CHPH's plan under s 47A(1A)(a) of the NDIS Act.
The hearing was conducted over 8 days, commencing on 17 July 2025 and ending on 27 August 2025.

[38]

(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. > > Note: For the purposes of paragraph (aa): > > (a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and > > (b) a participant's disability support needs arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements may be affected by a variety of factors, including environmental factors or the impact of another impairment in relation to which the participant does not meet either of those requirements. > > (2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

[45]

As can be seen, when preparing a participant's plan, including a SOPS for the participant, the role of families must be considered and the capacity of families to care for child participants should be strengthened and built as far as reasonably practical.
This is most significant in this case, where two sibling children with similar disability support needs reside in the same household and both children are participants in the NDIS. In this circumstance, the disability support needs of each child and related reasonable and necessary supports must be individually determined. This is not an abstract exercise. It is one which requires the relevant circumstances of the particular child participant to be taken into account in the real-life context of the family, household and community in which they live.
In the circumstances of CHPH's case, it is quite evident some efficiencies might be obtained from the synchronous provision of reasonable and necessary supports to both children, for example where in-home allied health supports are provided serially or concurrently to both children. Efficiencies might also be obtained from synchronous support coordination and respite management. These are matters for evidence.
Nevertheless, where duplication of funding for reasonable and necessary supports is likely to arise, this should be determined on relevant materials and taken into account when applying s 33(5) and s 34(1) of the NDIS Act.
The reasonable and necessary supports for each child participant will be funded where the requirements of s 33(5), s 34 of the NDIS Act and, where applicable, s 7(3) of the Miscellaneous Transitional Rules are satisfied.
Where a support is found to be a reasonable and necessary support for the participant which meets the thresholds in s 33(5) and s 34 of the NDIS Act, and the additional requirement in s 7(3) of the Miscellaneous Transitional Rules when applicable, the support must be fully funded under the NDIS: McGarrigle v National Disability Insurance Agency[18] (McGarrigle) and National Disability Insurance Agency v Foster[19] (Foster).

[50]

CHPH is seeking approval of 5.5 hours high intensity 1:1 support for each school holiday weekday, totalling 60 days per year. CHPH argues this is reasonable and necessary as the parents do not reasonably have capacity to provide the high intensity support CHPH requires from 9:30am to 3:00pm on weekdays during each school holiday. In CHPH's submission, the mother is required to provide high intensity 1:1 support to KPHDJ as the NDIA has not adequately funded supports for KPHDJ during school holidays and she would like to continue part-time work in her career as an occupational therapist. CHPH alleges the father is in full-time employment and he does not have sufficient leave entitlements to take 60 days off each year in addition to the time he is required to take off to attend to incidents and unforeseen support needs for each of the children. As CHPH does not have access to informal supports with capacity or ability to provide high intensity care, CHPH contends additional funding is required for suitably trained support workers to assist with all care tasks, including on any outings or programs, for 5.5 hours per weekday during school holiday periods.
The NDIA asserts that 12 weeks additional high intensity 1:1 support at the rate of 5.5 hours per weekday during school holidays is not reasonable and necessary for CHPH. In the NDIA's submission, as KPHDJ is funded for high intensity 1:1 support on weekdays during 8 weeks of school holidays, the mother would have commensurate capacity to care for CHPH on those days.
The NDIA argues the additional support during school holidays does not represent value for money as the alternative is for the parents to provide the support to CHPH. This, the NDIA contends, is reasonable to expect as most parents are required to make arrangements for care of their children during school holidays.
CHPH's daily routine broadly follows the pattern described in T18 (school weekdays), T19 (weekends), T26 (school holidays) and T27 (school terms). The parents gave written statements and extensive oral evidence addressing elements of CHPH's daily routines and disability support needs which I accept. The parents' evidence is supported by the evidence of allied health workers who consult CHPH at home.
The daily pattern of CHPH's self-care and participation supports includes high intensity 1:1 'vigilant'[20] supports:

[52]

Viewed from this perspective, the request for additional support from 9:30am to 3:00pm on weekdays during school holidays can be understood as extending the 1:1 supports provided for CHPH during school terms through the education system.
CHPH's disability support needs relating to self-care and participation are not fundamentally different on school holidays than during the school terms. CHPH requires high intensity 1:1 support from 9:30am to 3:00pm on all, including on 60 weekdays during school holiday periods.
I am satisfied this is a reasonable and necessary support for CHPH.
I am also satisfied, and there is no dispute, the support meets the criteria in s 34(1)(aa), (b) and (d) of the NDIS Act.
With regard to the value for money threshold in s 34(1)(c), when determining if the costs of the support are reasonable, the benefits achieved are to be considered in relation to the costs of alternatives. The matters to be considered are set out in s 3.1 of the Supports Rules.
The only alternative to the reasonable and necessary support during school holidays is for the parents to provide the high intensity 1:1 support to CHPH themselves. On its face, this would be a reasonable and cheaper option than funding 5.5 hours of high intensity 1:1 supports for 60 days of school holidays under the NDIS. I accept, however, that this alternative might have hidden costs, particularly if the mother or the father struggle or are unable to support CHPH and KPHDJ without adequate support, in which case CHPH's safety might be compromised at a time when 3 adults are required.
Additionally, each parent gave evidence of the stress and emotional or psychological symptoms they experience. The evidence of the mother's treating general practitioner and treating psychologist is that she, at least, is on the verge of carer burnout and the parents' marriage is at risk. I accept the parents are at the limit of their capacity to provide the level and kinds of support CHPH and KPHDJ require. Nevertheless, the additional 5.5 hours support sought for CHPH on weekdays during school holidays is not for the purposes of respite.
Pausing at this point, it is necessary to address the materials I was given during the hearing in respect of supports approved for KPHDJ under the NDIS. The funding of supports for KPHDJ is a relevant matter to consider when determining reasonable and necessary supports for CHPH, not least to ensure there is no unnecessary overlap in supports and also to consider the combined support load and the capacity of the primary carers, the parents, to provide high intensity and other supports to CHPH.
On 25 February 2025, a plan was issued for KPHDJ.[21] The inference to be drawn is that the CEO approved a SOPS for KPHDJ which, when combined with KPHDJ's statement of goals and aspirations, was instrumental in giving effect to the plan. No documentation of such an approval decision, including the calculations on which the funding for supports was determined, has been given to the Tribunal.
I understand on 18 July 2025 the NDIA issued an internal review decision which confirmed the SOPS approved on or about 25 February 2025. KPHDJ has lodged an application for review of this decision by the Tribunal. A tentative application was considered to join KPHDJ's proceedings with these proceedings, but this was not pressed as it would cause very significant delay in finalising CHPH's application.
The plan for KPHDJ sets out broad categories of supports and related amounts of funding. It does not provide sufficient detail to enable a reader to understand what is included or excluded in the 'Core Supports' 'Assistance with Daily Life' ($571,232.76) and 'Assistance with Social, Economic and Community Participation' ($8,770.80) categories, or how these amounts were calculated. The information provided by Maddocks on instructions from the NDIA in response to Tribunal questions about these matters is of little assistance and questionable reliability. Further opportunity was offered for the NDIA to explain the information provided, but this was declined.
Doing the best with the available materials and information, I understand a 'step down approach' was applied to enable adjustment to 'the new reduced model of funding'. Under the 'step down approach', funding would continue at the previous level from 25 February 2025 for 6 months and then reduce for the remaining 6 months of the approved SOPS underlying the plan. On the information provided by the NDIA, 1,850 hours of high intensity weekday daytime support for assistance with self-care activities was approved for a 12-month period commencing on 25 February 2025. Under the NDIA's explanation of the 'step down approach', the total hours funded for all self-care supports in the first 6 months was 3,416 hours, which reduced to 2,663 hours in the remaining 6-month period. With regard to 'weekday daytime' supports for self-care, the NDIA explained that 1,330 hours were approved for the first 6 months of the plan, which reduced to '4 hours per day excluding public holidays x 52 weeks' (996 hours) for the remaining 6 months of the plan.
On this information, it is probable from 25 August 2025, KPHDJ has funding approved for daytime self-care supports at the rate of 4 hours per weekday (excluding public holidays, when the rate increases to 6 hours per public holiday). As I understand this, the 4 hours per weekday applies to all weekdays (except public holidays), including school holiday weekdays.
On the NDIA's information, KPHDJ's self-care weekday daytime supports included 162 hours assistance during school holidays.[22] The NDIA explained it was considered reasonable to fund 8 weeks of school holiday support for 'Assistance with Social, Economic and Community Participation' at the rate of $67.56 per hour for 6.5 hours per day, 5 days per week 'in line with the information provided regarding the days of the mother's work schedule'.
An immediate difficulty arises as the calculation is based on '30 hours per week x 8 weeks' 'Totalling 240 hours per year' and the following explanation is given:

[54]

Furthermore, the calculation based on 162 hours at $67.56 produces a result of $10,994.72.
It will be clear by now there is a great deal of uncertainty about KPHDJ's approved supports. These are not matters capable of resolution by the Tribunal in these proceedings.
It is not at all clear to me how the explanation given leads to the $8,770.80[24] included in KPHDJ's plan for 'Assistance with Social, Economic and Community Participation' for the 12-month period of the plan.
Working back from this amount, it would cover approximately 130 hours of support at the rate of $67.56. If this is applied to 8 weeks of school holiday weekdays as the NDIA contends, it would cover little more than 16 hours per week or 3.25 hours per school holiday weekday. On this assumption, it is possible, but far from certain, KPHDJ is prospectively funded for approximately 7.25 hours of high intensity 1:1 supports during school holiday weekdays (4 hours per day under self-care and 3.25 hours under participation support categories) during the remaining period of the plan which commenced on 25 February 2025.
Conversely, CHPH is funded for 7.5 hours of high intensity 1:1 supports during school holiday weekdays, from 6:30am to 9:30am and from 3:00pm to 7:00pm.
If these calculations are correct, with synchronous management of the supports for each child, there could be an overlapping period of 1.5 hours in which each child is funded for the high intensity 1:1 supports they need. On days where the father is working, this would mean the mother could have a 1.5 hour break in supporting CHPH and KPHDJ. This takes no account of each child's need for 2:1 supports with activities such as dressing, feeding, toileting, changes and bathing.
To my mind, this is not a reasonable or sustainable alternative. The father's evidence that the mother is available to provide support to CHPH or KPHDJ does not mean that the mother has capacity to provide high intensity support to both children simultaneously or serially without a reasonable time to undertake other activities, including managing the coordination of supports for the children, undertaking activities of daily life, running a household and personal time.
The benefits to CHPH of high intensity 1:1 support from 9:30am to 3:00pm during school holiday weekdays include that CHPH will be assisted with self-care and participation in a manner which is safe, particularly where the mother is required to provide high intensity 1:1 care to KPHDJ. There is likely to be a long-term benefit to CHPH if the mother is not relentlessly over-burdened in providing support to CHPH and KPHDJ, noting the mother is carrying a heavy support coordination load. On the evidence of the mother's treating psychologist, she is on the verge of carer burn-out, her marriage is at risk and she is suffering from psychological conditions which adversely affect her capacity. In the psychologist's opinion, it would be beneficial for the mother to be able to have more time to look after her own needs and to engage in work as an occupational therapist and this would likely benefit CHPH as the mother would have greater capacity for positive sustainable engagement with CHPH. I accept that CHPH would benefit from the mother engaging in such activities.
I am also satisfied CHPH would benefit, long-term, from the father being able to continue in his employment, without over-reaching his leave entitlements to meet CHPH's disability support needs during school holiday weekdays. I accept the father's evidence, which was compelling and at times emotional, that his children will benefit if both parents are not over-burdened by their support responsibilities for both children, particularly at a time when both parents are experiencing significant physical, emotional, psychological, marital and financial stress as a result of all the difficulties associated with caring for two children with severe disabilities.
It is unlikely the additional support will reduce the long-term cost of supports for CHPH, although, over time it is possible the support might increase CHPH's independence as it will provide continuity of supports for activities involving self-care and communication without commitments, distractions and other factors which are likely to bear upon the parent's availability, engagement and capacity if the support is not approved.
Considering these matters, an additional amount of 5.5 hours of high intensity 1:1 support for CHPH from 9:30am to 3:00pm on weekdays during school holiday periods represents value for money. I am satisfied the threshold in s 34(1)(c) of the NDIS Act is met.
With regard to the question of what it is reasonable to expect families to provide, the threshold in s 34(1)(e) must be met and the matters set out in s 3.4 of the Supports Rules must be considered, particularly those in s 3.4(a) in respect of a child.
I am satisfied that CHPH's parents carry a very heavy load supporting CHPH and KPHDJ, well beyond what might be considered 'normal' for the purposes of s 3.4(a)(i) of the Supports Rules. CHPH's disability support and care needs are substantially greater than those of other children of the same age.[25]
Despite this, the father works in full-time employment and the mother works as a part-time occupational therapist when she is able. On the father's evidence, which I accept, he has changed his role in order to have greater flexibility to support his children, including working from home and minimising interstate or international travel. He has exhausted the goodwill of his employer, taking additional leave. I also accept his evidence it may be in his best interests, psychologically, to attend his workplace and engage with peers.
CHPH's mother has relief from providing direct 1:1 support to CHPH or KPHDJ from 9:30am to 3:00pm on school days. I accept her evidence that it does not follow she has free time to herself as she is on-call for both children and she bears the load of managing and coordinating supports, medications, supplies, appointments, interventions and activities for both children. Additionally, when possible, she works in part-time employment. I accept the mother's psychologist's evidence that the mother would benefit from undertaking her work as an occupational therapist and undertaking personal activities to improve her health and wellbeing.
As desirable as it may be for all participants to develop informal supports and networks within their communities, there is no compelling evidence CHPH's family supports and informal networks are able to contribute to provide the additional high intensity support sought.[26] Only people with the knowledge, experience and training to provide high intensity supports of the kinds CHPH requires can safely do so. There is simply no evidence members of CHPH's extended family and informal support networks are sufficiently trained, able and willing to provide such supports.
Considering these matters, it is not reasonable to expect CHPH's family, carers, informal networks to provide high intensity 1:1 supports for 5.5 hours per weekday during school holiday periods.
I am satisfied the requirements of s 34(1)(e) of the NDIS Act are met.
With regard to s 34(1)(f) of the NDIS Act, the additional support sought for self-care is not within the meaning of 'babysitting services' in item 14(e) or 'vacation care' or 'school holiday program' in item 16(a) of Schedule 2 of the NDIS Supports Transitional Rules. I am satisfied the support is not within the terms of Schedule 2. The additional supports sought are within the terms of item 14 of Schedule 1. I am satisfied the additional support is an 'NDIS support'.
With regard to s 7(3) of the Miscellaneous Transitional Rules, I am satisfied the additional 5.5 hours of high intensity 1:1 support for CHPH during school holiday weekdays is most appropriately funded under the NDIS and it is not most appropriately funded under another general system or service. No alternative source of funding was raised by the parties. I am satisfied the support is unlikely to be funded under the education or health systems, or any other general system.
In conclusion on this point, I am satisfied the additional 5.5 hours high intensity 1:1 support for CHPH per school holiday weekday (330 hours over 60 days per year) is a reasonable and necessary support which will be funded under the NDIS.
Noting the uncertainty of information in respect of KPHDJ's approved supports to which I have referred above, insofar as it is relevant, the provision of this support and related funding can be taken into account in the context of KPHDJ's approved supports when they are reviewed or reassessed.

[55]

CHPH is seeking an additional 66 hours (5.5 hours x 12 days per year) of high intensity 1:1 support for hospital outpatient appointments. The basis of the request is that CHPH and KPHDJ consult 14 medical specialists across 21 kinds of appointments and their appointments are scheduled concurrently or consecutively on the same day to minimise the number of hospital outpatient visits.[27] In CHPH's submission it is not practically feasible or safe for the mother, who is the primary carer in these circumstances, to provide high intensity support to both children when attending concurrent or consecutive specialist appointments on hospital outpatient days. CHPH observes that the mother cannot safely push two wheelchairs and, where appointments are consecutive, she cannot provide support to both children in different places at the same time.
The NDIA asserts this additional support does not represent value for money. In the NDIA's submission, it is within what is reasonable to expect CHPH's family to provide and it is not an NDIS support.
The support sought is 66 hours of high intensity 1:1 support for CHPH on days when the children attend medical appointments concurrently or consecutively on the same day.
I am not persuaded, and I do not accept, the mother can safely and reliably provide high intensity 1:1 support to both children at the same time. This is no criticism of the mother. I accept her evidence of circumstances in which this occurred and the consequential difficulties which then arose.
There is no evidence KPHDJ's plan includes funding for additional support to attend concurrent or consecutive specialist appointments with CHPH.
The alternative value for money proposition appears to be that the parents are able to provide the support, scheduling the appointments on days when they are both available and, if the father is unable to schedule leave from employment, to schedule the appointments separately for each child on different days so that the mother can provide the support required.
There are flaws in this proposition.
It may be possible for the father to take leave from his employment to assist the mother to support both children to attend concurrent or consecutive medical appointments relating to their disabilities. As any parent with young children knows, it can be difficult to juggle work and other commitments to support a child to attend necessary medical appointments. In the case of this family, the difficulty is substantially increased by the disability support needs of both children. I accept, furthermore, that calls may be made on the father's leave entitlements in the event the mother becomes unwell and she is incapable of providing high intensity support to either child, as occurred in January and March 2025. I am mindful that 12 days spent assisting the mother to support the children to attend medical appointments concurrently or consecutively, would significantly reduce the father's leave entitlements and the flexibility this allows to respond to unforeseen circumstances and emergencies involving CHPH or KPHDJ which might arise, as they have in the past. It also reduces his capacity to take time off work for personal reasons which might benefit his physical, psychological, emotional health and wellbeing, and his marriage.
It is probable, on the evidence of the mother, the father and CHPH's long-term occupational therapist, scheduling appointments is a logistical exercise in which parental choice is limited and the particular doctor plays a key role, specifying the frequency of appointments, whether the children are to attend together or separately and the available times and dates for the appointments.
In the circumstances of this family, it can readily be accepted that minimising the number of hospital outpatient visits is desirable. This is for two rather obvious reasons. Firstly, to minimise the logistical difficulties, the time required and the costs of supporting two severely disabled children to attend such appointments. Secondly, to minimise disruption to family routines and commitments, and school attendance for each of the children.
Scheduling separate appointments for each child on different days would mean doctors would not be able to consult the children together. On the evidence of Dr Pincus, there are likely to be medical and therapeutic benefits from medical specialists seeing the children together. This is particularly so in the context of the rare undiagnosed suspected genetic disorder afflicting these children. I am satisfied CHPH derives medical, therapeutic and practical benefits from the scheduling of concurrent or consecutive specialist appointments with KPHDJ which might improve CHPH's life stage outcomes and be of long-term benefit.
I am satisfied the additional high intensity support will reduce risks to CHPH's safety and wellbeing. While it is hoped attending such appointments might improve CHPH's future capacity, much is uncertain and unknown about the cause and likely course of the condition which afflicts CHPH. What can be said is that by safely attending specialist appointments concurrently or consecutively with KPHDJ, greater medical understanding might lead to therapeutic interventions or treatments with some prospect of mitigating symptoms, improving functional capacity and managing impairments. These are matters which bear directly on CHPH's wellbeing, functional capacity and independence which, if successful, might reduce the cost of funding supports for CHPH in the long term. I do not read pt 3.1(c) of the Supports Rules as an invitation to engage in such speculation, however. On the evidence of Dr Antolovich (CHPH's treating paediatrician) and Dr Pincus (a consultant paediatrician), CHPH's impairments and disability are likely to be life-long, albeit the likely course of the condition and CHPH's prognosis is not presently understood.
Should the mother attempt to convey CHPH and KPHDJ to attend concurrent or consecutive medical appointments without additional high intensity 1:1 support, she would place herself and CHPH at risk.
I am not persuaded the alternative value proposition is made out relative to the benefits CHPH is likely to derive. These include the benefit of concurrent appointments with KPHDJ and reduced risks to CHPH's safety and wellbeing on hospital outpatient days. I am satisfied the threshold in s 34(1)(c) is met.
With regard to the reasonable expectation of family contributions, as I have said, the care the parents provide to CHPH is substantially greater than what might be considered 'normal' as CHPH's care needs are very substantially greater than those of a child of comparable age.
In the circumstances of this case, I am not persuaded it is reasonable to expect the father to take 12 days further leave from his employment in order to support CHPH to attend concurrent or consecutive appointments with KPHDJ. It is not presently established that the father has sufficient leave credits with his employer to enable him to do so and, even if he has such credits, the weight of relevant evidence suggests other calls are likely to be made on his leave entitlements in the case of unforeseen events, emergencies and in order to obtain some respite or to attend to personal matters, not least his marriage.
It is probable funding the support will reduce any risk to CHPH's wellbeing and there is some prospect funding the support might improve CHPH's functional capacity, although that is dependent upon the progress of the underlying condition and the efficacy or therapeutic benefit of further treatment.
I am satisfied the threshold in s 34(1)(e) is met.
With regard to the question whether the additional support is an NDIS support for the purposes of s 34(1)(f), I am satisfied it is.
The additional high intensity 1:1 support is for CHPH to safely access and attend concurrent or consecutive specialist appointments with KPHDJ. The support is not within the terms of item 12 in Schedule 2 to the NDIS Supports Transitional Rules relating to 'Health'. The support is not a treatment or an assessment, and it is not within the meaning of 'health transport services'. I am satisfied the support is not within the terms of Schedule 2.
I am satisfied the support is within the terms of item 6 relating to transport assistance and item 14 relating to daily personal activities in Schedule 1 of the NDIS Supports Transitional Rules. It is also likely to be within the terms of item 21 to the extent that the support relates to enteral feeding and management, within the defined meaning of the term 'high intensity daily personal activities' in s 4 of the NDIS Supports Transitional Rules.
With regard to s 7(3) of the Miscellaneous Transitional Rules, I am satisfied the support is most appropriately funded under the NDIS and not under another general system or service. I have not been taken to any other relevant general system or service under which the support might be funded.
From this it follows, I am satisfied the additional 66 hours of high intensity 1:1 support over 12 days for the purposes of attending concurrent or consecutive hospital outpatient appointments with KPHDJ is a reasonable and necessary support which will be funded under the NDIS.

[58]

This statement and the 'third criterion' refers to groups who might gain access to the then prospective NDIS. Clearly, if access to the NDIS was to be decided 'loosely' it could pose a risk to the financial sustainability of the scheme. A similar argument might be made in respect of any decision to fund a support for a participant who has met the access criteria, but there is a quantum difference between deciding the funding of a particular support for a participant and injudiciously or 'loosely' applying criteria to grant a cohort of potential participants access to the NDIS. Furthermore, in XNTW and National Disability Insurance Agency[29] the Tribunal observed that 'the early vision of the Productivity Commission and the principles it applied in thinking about the scheme in the abstract are unlikely to provide much assistance in determining the meaning of particular provisions of the NDIS Act'. I agree some caution is required drawing upon the Productivity Commission's report, although the assertion in this case that decisions in respect of supports for participants should be made judiciously, with an eye to any adverse risk to the financial sustainability of the NDIS, can readily be accepted.
In the NDIA's submission, taking account of CHPH's age, CHPH's history of separation anxiety and the routine periods in which the parents are not providing direct high intensity support to CHPH and KPHDJ, when the children are at school for example, no more than 16 days respite per year is justified.
The NDIA argues that respite exceeding 16 days per year would not meet the value for money threshold and the threshold of what it is reasonable to expect families to provide.
The NDIA issued a Short Term Accommodation or Respite Operational Guideline[30] (Respite Guideline) which sets out the following considerations:
- - the need for Short Term Accommodation is related to your disability
- - it helps you pursue your goals
- - it helps you to participate in the community
- - it's value for money
- - how much support your family and other informal supports provide.
The reference to 'short term accommodation' expressly includes respite for carers of a participant.
Both parties referred to 28 days respite per year as the maximum which CHPH could apply for. This is incorrect. The Guideline relevantly states:

[60]

The request for approval of 28 days respite per year is squarely directed to the benefits to CHPH of sustaining the parents' capacity to provide care and high intensity support to CHPH. The question is the amount of respite that is appropriate in the circumstances, considering on the one hand the amount of time reasonably required to sustain the carer's capacity to provide high intensity 1:1 supports and, on the other hand, any adverse effects on the participant and the NDIS. These are not abstractions which can be decided without relevant evidence or arbitrarily: a balance is to be struck on the basis of relevant material of probative value which addresses what is most appropriate in the specific circumstances of the particular case.
It is not clear whether the respite would involve CHPH utilising short term accommodation away from the family home, or the parents spending time away from the family home and their support and carer responsibilities for their children.
The request for short term accommodation or respite is to be viewed through the lens of CHPH's disability support needs in the context of the family circumstances, including KPHDJ's disability.
If approved, the respite sought is likely to assist CHPH pursue the goals and aspirations stated in the plan. In particular, it would assist CHPH's goal 'to continue to support CHPH achieve all CHPH's NDIS goals & for both parents to sustain and maintain the ongoing care of CHPH and KPHDJ'.
CHPH has experienced significant separation anxiety related to attachment to the mother. The evidence of the treating paediatric psychologist and occupational therapist supports the evidence of the parents this has reduced with pharmacological and psychological treatment.
On the evidence of the mother, the father and the occupational therapist, the support is likely to assist CHPH's independence and community participation by expanding experiences independent of the parents, particularly in the event CHPH uses short term accommodation away from home. In the longer run, if the parents' capacity to support CHPH in community activities and interactions is improved or rendered more sustainable by the respite support, this is likely to assist CHPH participate in the community and activities with peers.
On Dr Pincus' evidence, short term respite is likely to benefit CHPH as this will enable the parents to rest, recover and recharge, in accordance with current good practice. The doctor explained the amount of respite in any case is not a medical question but it is one which requires a balance between the need for carers to have a break and the stress which might be caused to the child by separation and, potentially, relocation to a new environment for a short period, particularly where the child is non-verbal.
Considering the evidence of the parents, the allied health workers, particularly the occupational therapist, the mother's treating doctor and psychologist and Dr Pincus, I am satisfied the requested support is a reasonable and necessary support for CHPH, and the thresholds in s 34(1)(aa), (a), (b) and (d) are met.
With regard to value for money for the purposes of s 34(1)(c) of the NDIS Act, the value for money proposition turns on whether the costs of the support are reasonable relative to the benefits achieved and the cost of alternative support.
As I comprehend the NDIA's value proposition, it is that a lower annual frequency of respite (up to 16 days per year) is likely to achieve the same benefit but at a lower cost. The NDIA asserts that there is insufficient evidence to justify more than 16 days respite and any benefit from additional respite would not meet the value for money threshold.
There are three key difficulties with this.
Firstly, the basis on which 16 days per year was selected is opaque. No cogent rationale addressing the value proposition in s 34(1)(c) of the NDIS Act has been given for the selection of 16 days per year, other than to suggest 16 days per year is reasonable, appropriate in the overall NDIS context and it is likely to be sufficient.
The cost of the support has not been quantified in detail. It can be accepted however that it would involve short term accommodation and additional high intensity 1:1 support for CHPH during periods not already covered each day, as well as overnight support. Proceeding on this basis, the weight of the relevant medical and allied health evidence supports provision of 28 days per year short term accommodation or respite, as requested.
Secondly, the value proposition should take account of alternatives. The alternative the NDIA raises is that up to 16 days respite per year would either provide the same benefits as 28 days per year but at a lower cost or additional benefits are not. The NDIA asserts CHPH experiences anxiety on separation from the mother, and the risk of harm is likely to increase with the frequency or duration of the separation. If 16 days per year is allowed, this would mean CHPH is separated from the mother or possibly both parents every 6 or 7 weeks, whereas under the requested support, CHPH could be separated from the mother or both parents for 14 weekends per year (every 3 weeks), depending on the frequency, duration and nature of each occurrence.
This might be correct, but on the evidence of the mother's treating psychologist, CHPH's separation anxiety might be amenable to therapeutic intervention whereas if the mother's mental health declines for want of substantial respite, her capacity to care for and support CHPH is likely to be adversely affected. There is clear evidence the parents' marital relationship is under significant stress and there is a real risk this might increase to breaking point without relief. On the basis of this evidence of the mother, the father and the mother's treating health practitioners, I accept the request is akin to a cry for help. The risk of the alternative scenario is clearly foreshadowed in the evidence of the mother's treating general practitioner and psychologist, and it is supported by the evidence of Dr Pincus. Should the risk be realised, the cost of meeting CHPH's disability support needs would likely increase substantially. This is especially so, if the stresses on the parents' marriage result in the parents separating or in the event either parent is unable to continue to provide support to CHPH. The parents gave compelling evidence on this point.
Thirdly, the weight of relevant evidence suggests more than 16 days respite per year is justified in the circumstances of this case. CHPH's treating occupational therapist, the mother's treating doctor and psychologist recommend 28 days of respite per year is required. Dr Pincus was broadly supportive of the request for respite at 28 days per year, although he explained 28 days is a comparatively substantial period in his experience. He acknowledged he did not meet the parents or CHPH, and his evidence is drawn from materials he was given, including transcripts of the evidence given by the parents and CHPH's long-term occupational therapist.
I am satisfied the requested support, 28 days per year of short-term accommodation or respite, meets the threshold in s 34(1)(c) of the NDIS Act.
I am also satisfied the support meets the threshold in s 34(1)(e) to the extent that it takes account of what it is reasonable to expect the family, carers, informal networks and the community to provide. Even if the additional 5.5 hours support on school holiday weekdays is approved, I am satisfied the parents will continue to provide substantial support to CHPH during school holidays. On their evidence, they are vigilant, engaged in providing supports other than 1:1 support and on call to assist when 2:1 support is required.
There is no dispute the support is an 'NDIS support' for the purposes of s 34(1)(f) of the NDIS Act or that it is most appropriately funded under the NDIS and not under another general system or service for the purposes of s 7(3) of the Miscellaneous Transitional Rules.
Consequently, I am satisfied the support is a reasonable and necessary support which will be funded under the NDIS.
Once again, it may be desirable to consider this support, insofar as it is relevant, in the context of review or reassessment of supports for KPHDJ.

[61]

CHPH is seeking approval of 45 hours per year for new support workers to attend Royal Children's Hospital high intensity Homecare Training Program (RCH Program). Support workers require training on CHPH's specific care requirements, CHPH argues, and their competency to provide high intensity care for CHPH needs to be assessed. CHPH contends that, presently, training for new support workers is provided informally by current support workers and the parents, and the only alternative method is to fund new workers to undertake the RCH Program. CHPH alleges, as there is a high turnover of CHPH's support workers, provision should be made for the training of 5 new support workers each year. In CHPH's submission, it is reasonable and necessary to fund each new support worker to attend the RCH Program, with a 6-month reassessment. CHPH asserts the training and re-assessment requires 9 hours per support worker.
CHPH alleges 20 hours of registered nurse support under the delegation and supervision model does not fund support workers to engage in such training. In CHPH's submission, a concentrated training program in which support workers are funded to participate and focus on the training is required to ensure safe and appropriate support is provided to CHPH. This, CHPH argues, can best be met under the RCH Program which is a reasonable and necessary support for CHPH in the circumstances.
The NDIA disagrees. In the NDIA's submission, the RCH Program support sought does not meet the threshold in s 34(1)(c) of the NDIS Act and it is within the terms of s 5.1(c) of the Supports Rules. The NDIA argues CHPH's support workers are funded at the high intensity rate on the expectation they have the training required to provide support at that level, and NDIS providers are responsible for ensuring high intensity support workers have the training, skills and knowledge at the required high intensity level. The NDIA contends documentation of support worker training and regular auditing of support worker competencies are the responsibilities of NDIS providers.
In the NDIA's submission a delegation and supervision model of care is appropriate, under which a registered nurse would provide training specific to CHPH's needs and delegate key tasks to support workers, while retaining oversight and clinical responsibility. This model, the NDIA argues, does not provide training in the general skills high intensity support workers require to work at the high intensity support level. To the extent support worker training is sought for CHPH's school support team, the NDIA asserts this is the responsibility of the Department of Education.
By agreement, approval has been given to fund 26 hours per year of registered nurse supports under a delegation and supervision model, comprising:

[68]

On this evidence, I am satisfied funding 9 hours for 5 new support workers to attend the RCH Program per year in addition to the 26 hours support of a registered nurse under the delegation and supervision model is not reasonable and necessary for CHPH. I accept, nevertheless, that training specific to CHPH's disability support needs is reasonable and necessary. Dr Pincus explained this can be obtained through the RCH Program, but it can also be obtained from experienced support workers and the parents, particularly the mother, in the home.
I am satisfied under the delegated and supervision model, training that is specific to CHPH's particular routine and disability support needs, including in respect of the specific PEG device, is likely to be provided by the registered nurse with assistance from the parents and experienced support workers. I accept this may place a burden on the mother, who is not a doctor or a registered nurse.
I note the parents' preference to use the RCH Program is informed, in part at least, by their previous experience using RCH high intensity training for KPHDJ's support workers. KPHDJ has more complex support needs than CHPH as KPHDJ requires assistance breathing, using oxygen and a BPAP device.
Even though the mother's evidence in respect of the difficulties encountered recruiting suitable support workers for CHPH can be accepted, the evidence of support worker turnover suggests the rate of turnover is substantially attributable to 'unsuitable fit'.[33] I am not persuaded this is likely to be addressed by requiring new support workers to attend the RCH Program in addition to the support of a registered nurse under the delegation and supervision model.
The support provided under the delegation and supervision model provides funding for a registered nurse, but it does not provide funding for support workers to undergo the training. As I understand this, the registered nurse training is provided 'on the job'. Inevitably, on the job training of this kind is likely to be less intensive than training provided off-site in the RCH Program, however the 'on the job' training is likely to be highly focused on CHPH's health, safety and disability support needs in the context of the daily routine. I do not accept the proposition that support workers would be unable to provide the high intensity 1:1 support CHPH requires during 'on the job' training by a registered nurse.
Considering these matters, I am satisfied the additional 45 hours of support sought for new support workers to attend the RCH Program is likely to duplicate support provided under the delegation and supervision model and training within the responsibility of NDIS providers. Duplication of this kind is within the exclusive terms of s 5.1(c) of the Supports Rules and it does not meet the value for money threshold in s 34(1)(c) of the NDIS Act.
Consequently, I am satisfied the RCH Program support sought is not a reasonable and necessary support for CHPH and it will not be funded under the NDIS.

[73]

In the NDIA's submission, any additional hours of occupational therapy support, particularly in respect of travel, would not meet the thresholds in s 34(1)(c), (d) and (e) of the NDIS Act and s 5.1(c) of the Supports Rules. I note there is some confusion about this as in oral submissions the NDIA initially explained it relied on s 34(1)(d) and then later referred to the additional occupational supports not meeting the threshold in s 34(1)(e), and it withdrew reliance on the exclusion in s 5.1(c) of the Supports Rules. On this, I simply observe that each of the thresholds in s 34(1) must be met and where s 5.1(c) of the Supports Rules is engaged it has exclusive effect.
The key issue in dispute is the allowance for travel time. The parties agree, correctly, that some level of travel time is reasonable and necessary in the provision of occupational therapy support to CHPH.
It is probable that the occupational therapist maintains close and frequent communication with other allied health workers and support workers who support CHPH. On her evidence, she provides the parents and other support workers extensive and detailed notes. Where there is turnover in CHPH's support workers and where new assistive technology or occupational therapy strategies are introduced, it is likely the occupational therapist would contribute to training support workers. Nevertheless, it does not follow that such training would be conducted only during school holiday periods. In the continuum of multidisciplinary supports, it is probable some training of this kind could be conducted on-the-job in a timely manner. On the occupational therapist's evidence, I am satisfied the requirement for training can be accommodated with 26 hours per year of face-to-face interventions. I am also satisfied, and there is no dispute, this amount of occupational therapy support is reasonable and necessary for CHPH and it meets each of the thresholds in s 34(1)(aa) to (f) of the NDIS Act and s 7(3) of the Miscellaneous Transitional Rules.
In all likelihood, some supports relating to assistive technology, such as CHPH's wheelchair, communication and second skin device, and related training could be undertaken within face-to-face interventions with CHPH and support workers. I accept, however, that additional time would likely be required with the configuration and introduction of the second skin and the eye gaze devices, and related liaison or training with support workers or allied health providers. This represents value for money, and it takes account of what it is reasonable to expect CHPH's family, carers, informal networks and the community to provide. It does not contravene pt 5.1(c) of the Supports Rules.
Considering these matters, I am satisfied, and I understand the parties agree, 6 hours of occupational therapy supports to address additional assistive technology and liaison needs are reasonable and necessary and these meet each of the thresholds in s 34(1)(aa) to (f) of the NDIS Act and s 7(3) of the Miscellaneous Transitional Rules.
With regard to travel time and related costs, the support sought relates to occupational therapy provided in CHPH's environment. It is to be distinguished from the claimable amount under the NDIS Pricing Arrangements and Price Limits 2025-26[34] (Price Guide). Nevertheless, there is no reasonable basis on which funding which exceeds the Price Guide policy can be approved.
For this reason, the relevant policy set out in the Price Guide is a relevant consideration:

[75]

I accept the evidence of the occupational therapist that face-to-face occupational therapy interventions with CHPH are scheduled synchronously with KPHDJ's interventions where possible. Sometimes these are conducted concurrently, with some longer sessions, and others are conducted serially, back-to-back, depending on the number of support workers at the particular time. She explained that some occupational therapy interventions are conducted at the children's school and related costs are funded through the school. I understand efforts are made by the occupational therapist to streamline interventions with other client appointments in surrounding areas.
Nevertheless, I accept CHPH's occupational therapy interventions are not and should not be dependent on such synchronous arrangements, where separate interventions are required should one of the children be unwell for example. That being so, travel for 12 face-to-face interventions and 6 other attendances relating to assistive technology, training or liaison is a reasonable and necessary support for CHPH.
In these circumstances, any apportionment of travel time and related costs should be made between CHPH and KPHDJ under the Price Guide policy. Of course, payment of travel time is to be determined under the Price Guide, whereby the facts of any intervention will determine the amount payable. Where interventions are conducted concurrently with CHPH and KPHDJ, the travel time and cost would be halved. On the occupational therapist's evidence, she also schedules CHPH's interventions with other client appointments in the area. This, too, could reasonably be expected to produce savings in attributable travel time and related costs. The occupational therapist explained that the 26-hour estimate was based on her understanding the NDIA expected full travel time to be included for each intervention.
On the available materials, it is not possible to determine the number of concurrent or consecutive interventions the occupational therapist is likely to conduct each year.
Considering these matters, I am satisfied that the 26-hour estimate cannot be accepted. On the basis of the Price Guide policy, 30 minutes travel time is allowable for each intervention. Provision is made for 12 one-hour interventions during school terms and 6 interventions relating to assistive technology, training or liaison. Consequently, this amounts to 18 interventions at 30 minutes travel time for each intervention: a total of 9 hours.
I accept the NDIA's assertion that the 6.5 hours of travel is not intended to be a precise calculation, and that some flexibility should be allowed for the occupational therapist to travel to respond to unforeseen circumstances, such as where KPHDJ is unwell or unavailable, or in respect of assistive technology adjustments between interventions for example.
As it is likely that a proportion of interventions will be conducted concurrently or consecutively with CHPH and KPHDJ, I am satisfied that 9 hours of travel time for occupational therapy support provides sufficient flexibility and it is reasonable and necessary.
This quantum of travel time does not fall within the exclusion in s 5.1(c) of the Supports Rules and it meets the value for money threshold in s 34(1)(c) of the NDIS Act. Furthermore, I am satisfied that this amount of travel for face-to-face occupational therapy support for CHPH reflects current good practice and it is likely to be effective and beneficial for CHPH, and it takes account of what it is reasonable to expect families, carers, informal networks and the community to provide.
In conclusion, I am satisfied that 43 hours occupational therapy support (in addition to the supports approved in the 2 September 2025 partial decision) is reasonable and necessary for CHPH, namely:

[82]

In the NDIA's submission any additional hours of speech pathology support would not meet the thresholds in s 34(1)(c) and (d) of the NDIS Act.
There is no dispute that 26 hours for face-to-face interventions, with 2 hours for report writing is reasonable and necessary for CHPH. I am satisfied this is correct.
On the speech pathologist's evidence, therapy liaison with CHPH's support workers and other allied health practitioners is an important component of her support for CHPH which requires an allocation of 10 hours per year. In the context of CHPH's approved SOPS (which does not include express allowance for speech pathology therapy liaison), the speech pathologist agreed that this has been occurring in CHPH's speech pathology interventions.[35] The Speech pathologist explained the basis on which 10 hours therapy liaison was estimated.
Considering the speech pathologist's evidence, I am satisfied that part of the therapeutic liaison can be accommodated within the 26 hours of face-to-face interventions. I am also satisfied that an additional 30 minutes each month, 6 hours per year, would likely enable the speech pathologist to engage in case conferences/care team meetings for coordination, problem-solving and reviewing progress with other allied health practitioners, CHPH's carers and support workers. This strikes a reasonable balance which avoids duplication and represents value for money when the benefits of such meetings to CHPH are weighed against the additional cost.
On the speech pathologist's evidence, the estimate of 13 hours travel time aligns with the Price Guide, which allows 30 minutes travel time for each face-to-face intervention. I accept the proposition that CHPH's speech pathology interventions should not be dependent on KPHDJ's availability and, as accurate scheduling cannot be determined in advance, budgeting for 30 minutes travel for each fortnightly intervention is reasonable and necessary. The amount which is payable under the Price Guide where interventions are conducted concurrently or consecutively with CHPH and KPHDJ will fall to be determined on the particular facts of each intervention.
With regard to the 8 hours speech pathology recommended in relation to CHPH's PODD communication book, this is calculated on the basis of 1 hour collection of vocabulary and 7 hours customisation of the PODD communication book. It can readily be accepted that CHPH's PODD communication book requires progressive updating and customisation as CHPH's life experiences and communication capabilities change. On the speech pathologist's evidence this has occurred during face-to-face interventions. I note her evidence that while fortnightly interventions are scheduled for 1 hour, there is some flexibility. I am satisfied there is sufficient flexibility and scope to accommodate progressive updating and customisation of CHPH's PODD communication book within the 26 hours allowed for face-to-face interventions or the 6 additional hours allowed for therapy liaison.
With regard to the 10 hours recommended for CHPH's new eye-gaze device, this is to allow time for programming the device, customisation of page set, aided language displays and topic displays on the device. I do not accept the proposition that, as the assessment work for this device was undertaken by the speech pathologist within session times, the same approach should apply with regard to setting up the device. I accept the speech pathologist's evidence of the time required to configure the new device and find that an additional 10 hours of speech pathology support to do this is reasonable and necessary. I am satisfied this will benefit CHPH's participation and it represents value for money as the benefits to CHPH outweigh the cost-saving of compressing this work into or sacrificing face-to-face interventions. Appropriate configuration of the eye gaze device to address CHPH's particular disability communication needs and capacities will improve the effectiveness of the device and related benefits to CHPH, consistent with current good practice.
Consequently, I am satisfied that 57 hours of speech pathology is a reasonable and necessary support for CHPH, namely:

[89]

In the NDIA's submission any additional hours of physiotherapy support would not meet the thresholds in s 34(1)(c) and (d) of the NDIS Act.
There is no dispute 12 hours of face-to-face physiotherapy interventions is reasonable and necessary for CHPH.
The issues in dispute relate to the time recommended by the physiotherapist in respect of school holiday carer training, travel and the new manual wheelchair.
The physiotherapist has been working with CHPH from a very young age for almost 8 years, and by her own account, she is very familiar with CHPH's needs, progress, ongoing challenges and future concerns.[36] I accept the physiotherapist's evidence that CHPH's physiotherapy support needs are complex and exceed monthly physiotherapy interventions. The level of physical support and the number of assistive aids CHPH requires[37] underscores the importance of training all support workers in safe manual handling and use of equipment. The level of need increases with the turnover of support workers.
The physiotherapist gave detailed evidence addressing the need for and benefits of training for CHPH's support workers and other allied heath practitioners from a physiotherapy perspective. I accept the training sessions can be efficiently scheduled in 2-hour blocks during school holidays with CHPH's participation. They are scheduled serially with sessions for KPHDJ. It is not clear if any of these sessions are conducted concurrently.
As with the occupational therapist and the speech pathologist, in the context of the multi-disciplinary team approach which is clearly evident, it is probable that the physiotherapist interacts and engages in elements of training with CHPH's support workers and other allied health practitioners progressively in face-to-face interventions. The physiotherapist referred to CHPH's support workers in the context of a community team, a school team and a hospital team. Clearly, CHPH's disability support needs are complex and there are a number of people involved in providing supports to CHPH in addition to family carers.
I accept that allowing time for physiotherapy-oriented support worker training during school holidays is reasonable and necessary in the context of CHPH's changing disability support needs and related strategies and assistive technologies. The physiotherapist agreed that some school holiday training sessions might not occur, depending on needs and circumstances.
Taking this and the likelihood that some elements of physiotherapy training occur progressively in monthly interventions, I am satisfied that a provision of 6 hours for training additional to the 12 hours allowed for face-to-face interventions is reasonable and necessary. This avoids any duplication of supports and it represents value for money, where the benefits to CHPH outweigh the alternative of not undertaking the training, the cost of which might be measured in harms caused to CHPH or support workers. The support is likely to be effective and beneficial for CHPH, taking account of what it is reasonable to expect the family, carers and the community to provide.
There is no dispute that 2 hours for report writing is reasonable and necessary. I agree.
The issue of travel time raises the similar considerations to which I have referred above in respect of the occupational therapist and the speech pathologist. The physiotherapist schedules interventions with CHPH synchronously with interventions for KPHDJ and other clients within the same area where possible.
On the physiotherapist's evidence, the recommendation is for 30 minutes travel per monthly session (6 hours). With regard to the school holiday training program travel, 1 hour has been recommended for each program: a total of 4 hours. No more than 2 hours related travel time is consistent with the Price Guide policy.
The NDIA suggests 6.5 hours would be reasonable and necessary, albeit not a precise calculation. No sound basis or rationale has been given for this figure, although I note it aligns with the NDIA's approach to travel for the occupational therapist and the speech pathologist.
Considering these matters, I am satisfied 8 hours of travel for physiotherapy support is reasonable and necessary. This avoids duplication which would engage pt 5.1(c) of the Supports Rules and it represents value for money relative to the benefits CHPH derives from speech pathology interventions and the cost of the alternative, where interventions might be placed at risk should the travel funding be exhausted. As CHPH's physiotherapy interventions should not be dependent on KPHDJ's availability and accurate scheduling cannot be determined in so far in advance, I am satisfied 30 minutes travel for each fortnightly intervention strikes an appropriate balance and it is reasonable and necessary. The particular facts of each intervention will determine the amount which is payable for physiotherapy travel time under the Price Guide.
With regard to the time sought in respect of updating carer training manuals and videos (3 hours) and equipment support (6 hours), it is possible that some updating of manuals is likely to occur progressively in the context of face-to-face interventions or training. I accept the physiotherapist's evidence that the additional provision of 3 hours for updating manuals and 6 hours for equipment support, as requested, would be reasonable and necessary for CHPH.
The benefits to CHPH of ensuring that physiotherapy training manuals and videos are frequently updated, and equipment is adjusted when required, outweighs the cost of alternatives. The alternatives include not doing these things or delaying them and addressing them within intervention times. This is likely to increase risks to CHPH's safety and wellbeing. I am not persuaded the cost saving of the alternatives outweighs the benefits CHPH is likely to derive from training manuals being regularly updated and equipment issues being addressed in a timely manner.
I am satisfied that 3 hours for updating physiotherapy training manuals and videos, and 6 hours equipment support, are reasonable and necessary supports for CHPH which meet each of the thresholds in s 34(1)(aa) to (f) of the NDIS Act and 7(3) of the Miscellaneous Transitional Rules.
With regard to the 12 hours recommended to support an application for acquisition of a new manual wheelchair for CHPH, I note the evidence given by Dr Pincus in respect of the centralised selection procedure which applies in Queensland. No equivalent procedure applies in Victoria.
I accept that the physiotherapist is an expert and very experienced in her field, and she has a long history working with CHPH which assists her detailed understanding of CHPH's disability support needs. There is no dispute CHPH requires a new manual wheelchair as the previous wheelchair is at the end of its serviceable life and has been outgrown. I do not accept that because the physiotherapist was involved in the selection of the old wheelchair a number of years ago, and she has a detailed understanding of CHPH's current needs, the time required to source, trial, select, specify and obtain funding for a new wheelchair is likely to be reduced. Dr Pincus' evidence on this point, that the physiotherapist might have a good understanding of the 2 or 3 wheelchairs which might be most suitable for CHPH, is somewhat speculative. Nevertheless, I accept that the physiotherapist has a detailed knowledge of CHPH's disability support needs and the current old manual wheelchair. Having heard the physiotherapist's evidence, it appears to me the detailed information she laid out about the steps involved and the estimates of the time required is informed by her knowledge of CHPH.
The NDIA's suggestion 6 hours would be sufficient is not supported by relevant material of probative value. Dr Pincus gave evidence that in his experience 6 hours would be a generous offer, but he acknowledged this was informed by his experience of the procedure in Queensland and he had no knowledge of the procedure in Victoria. The doctor was of the opinion that 12 hours to select and trial a manual wheelchair was more than he would expect of a physiotherapist with detailed relevant knowledge and experience.
On this point, I prefer the evidence of the physiotherapist who gave a detailed account of the time required. The recommendation of 12 hours is not confined to the selection and trialling of a wheelchair, it includes preparing materials to support an application to the NDIA to obtain approval and funding such a device. On the physiotherapist's evidence, 12 hours is a conservative estimate.
Current good practice in such a selection process is difficult to evaluate. Dr Pincus gave evidence of his experience and opinion in respect of good practice, which largely aligns with the approach recommended by the physiotherapist. The significant difference of opinion is in the time required, in respect of which Dr Pincus' opinion was informed by his experience in Queensland which does not translate directly to the procedure the physiotherapist described in Victoria. I am satisfied the procedure the physiotherapist set out to select and support an application for a manual wheelchair to meet the complex disability needs of a child such as CHPH aligns with current good practice. It is likely that a wheelchair selected under a rigorously applied procedure of the kind described will be effective and beneficial for CHPH over the expected life of the wheelchair.
I am satisfied that 12 hours physiotherapy support to source, trial, select and prepare materials in support of an application for approval and funding a new manual wheelchair is a reasonable and necessary support for CHPH. This represents value for money relative to the benefits CHPH will derive from a new wheelchair selected to meet her particular disability support needs and the costs of alternatives, which include spending half the recommended time to complete the wheelchair selection process and related supporting materials. The alternative increases the risk something might be missed and the wheelchair selected might not meet all CHPH's disability support needs over the expected life of such a device.
In conclusion on this point, I am satisfied 49 hours of physiotherapy support is reasonable and necessary for CHPH, specifically:

[93]

CHPH is seeking approval of 10 hours per year for orthotist support and $6,529.00 funding for 2 pairs of ankle foot orthoses. CHPH submits that 2 pairs of bilateral hinged ankle foot orthoses are required each year to accommodate changes in CHPH's growth. CHPH asserts the quote from Orthokids[38] should be accepted and the Tribunal should be satisfied two pairs of ankle foot orthoses per year are reasonable and necessary and they should be approved for funding under the NDIS.
The NDIA does not agree. The NDIA relies on the evidence of Dr Pincus that, generally, ankle foot orthoses would be replaced on a similar interval to a child's shoes as a result of growth of the child, roughly every 9 to 18 months. The NDIA observes that, as CHPH has funding for a pair of ankle foot orthoses which are presently in use, one further pair might be reasonable and necessary within the next 12-month period. For these reasons, the NDIA considers funding for a second pair on ankle foot orthoses within 12 months is not reasonable and necessary and it does not meet the threshold in s 34(1)(c) of the NDIS Act and, in part, s 5.1(c) of the Supports Rules.
Considering the 8 October 2024 Orthokids quote, it can be accepted that the orthotist requires 4 hours to assess, specify, fit and review each pair of ankle foot orthoses. The quote specifies one additional hour for 'NDIS P&O Application (if required)'. The cost of manufacturing each pair of ankle foot orthoses is $3,260. Applying this figure, 2 pairs of CHPH's orthotics would cost $6,520. It is probable the request for $6,529 is an error.
The orthotist reported that CHPH 'may require a second pair of AFOs during the year as growth can be unpredictable'.[39] This is consistent with the physiotherapist's evidence. Dr Pincus considered a replacement pair of orthoses for CHPH might be required in 9 to 18 months.
On this material, as CHPH has a pair of bilateral hinged ankle foot orthoses, it is probable CHPH is likely to require one replacement pair per year.
It possible CHPH might require a second replacement, but this is somewhat speculative and not established as likely. I am not persuaded 2 replacements per year would be reasonable and necessary for CHPH. In the event CHPH requires a second replacement pair of ankle foot orthoses within a 12 month period, application can then be made for funding under the NDIS to meet this requirement by way of variation to CHPH's plan under s 47A(1A)(1) of the NDIS Act and s 5.1(5)(b)(i) of the National Disability Insurance Scheme (Variation and Reassessment of Participants' Plan) Rules 2025. Approaching the matter in this way avoids any potential duplication of foot ankle orthoses supports under s 5.1(c) of the Supports Rules.
I am satisfied that one replacement pair of bilateral hinged ankle foot orthoses is a reasonable and necessary support for CHPH which meets each of the thresholds in s 34(1) of the NDIS Act and s 7(3) of the Miscellaneous Transitional Rules. From this it follows it is a reasonable and necessary support which will be funded under the NDIS.
As one set of bilateral hinged ankle joint orthoses will be funded each year under the NDIS, the additional hour the orthotist quoted for an application to the NDIA 'if required' falls away. Both parties agree, however, that the orthotist requires 5 hours for each pair of ankle foot orthoses. It can be accepted CHPH's rate of growth is uncertain and the additional hour will allow for the orthotist to prepare an application to the NDIA should an additional pair of orthoses be required in a 12 month period. Consequently, I accept the parties' submission that the amount of funding is to be calculated on 5 hours of orthotist time plus the cost of manufacturing the bilateral hinged ankle foot orthoses.

[95]

CHPH is seeking approval of funding for the gap costs of private swimming lessons relative to group swimming lessons - $400 per term. CHPH relies on evidence given by the treating physiotherapist and the occupational therapist that private swimming lessons are likely assist CHPH to benefit from water-based activity without the constraints of participating in swimming lessons with a group of much younger children. CHPH requires 1:1 support for all water-based activities and this means CHPH cannot participate in group swimming lessons like peers of her own age.
The NDIA submits that the gap between private and group swimming lessons is not a reasonable and necessary support for CHPH. The NDIA alleges this is a matter of choice and, to the extent that in water activity might benefit CHPH's mobility, this is an activity which can be met within the physiotherapy interventions funded under the NDIS.
Furthermore, the NDIA contends that private swimming lessons are not within the meaning of 'NDIS support'
I should immediately observe there is only scant material supporting this request.
There is no dispute CHPH requires full 1:1 adult support in the pool and it is unlikely CHPH will ever learn to swim. I accept CHPH enjoys water-based activity. On the evidence of the treating physiotherapist, CHPH is likely to benefit to CHPH from engaging in such activities with 1:1 high intensity support. I also accept there is likely to be a social participation benefit to CHPH engaging in swimming lessons in a group, albeit that it is probable other children in the group are likely to be much younger than CHPH.
On balance, I am not satisfied the gap cost of private swimming lessons for CHPH ($1,600 per year) is a reasonable and necessary support which will be funded under the NDIS. There is sufficient provision in the physiotherapy support to encompass in-water activities during interventions which might be beneficial to CHPH.
Additionally, it is probable that the gap cost of private swimming lessons would be within the terms of item 4(h) of Schedule 2 to the NDIS Supports Transitional Rules and, for this reason, it is not an NDIS support for the purposes of s 34(1)(f) of the NDIS Act.
This request must be refused.

[96]

CHPH is seeking approval of 150 hours of level 3 support coordination in addition to the 50 hours of level 1 support coordination in the current plan.
CHPH asserts the mother bears a heavy burden obtaining, administering, managing and coordinating supports for two children with severe disability and dealing with the NDIA. In CHPH's submission, this role requires more than 18 hours per week, during periods when the children are at school and often late at night. CHPH alleges the role and the time required equates to running a small business. CHPH observes if 200 hours is approved for support coordination, as requested, this will reduce the mother's support coordination commitment by 4 hours per week, meaning she will continue to spend at least 14 hours per week providing support coordination for CHPH.
CHPH contends the mother suffers from inattentive ADHD disorder which makes it more difficult and stressful for her to deal with the administrative burden. Furthermore, CHPH asserts the load of this work intrudes unreasonably on the mother's ability to undertake other activities of life, including her capacity to work and to attend to family, marital and personal matters.
The NDIA asserts it is reasonable to expect families to bear some of the burden coordinating supports for a family member child participant. In the NDIA's submission, the intensity and the administrative burden of support coordination is expected to reduce once a participant connects with support providers. The NDIA asserts the mother's documentation of hours spent undertaking 'disability management' tasks[42] is affected by the mother's inattentive ADHD, which she admits increases the time required. This document, the NDIA argues, includes items which are not support coordination tasks, such as time spent attending medical appointments, and it should not be relied upon. Furthermore, the NDIA contends if the mother requires additional support coordination assistance because of her ADHD, this is not support for CHPH, as required under s 46(1)(a) of the NDIS Act.
The NDIA contends 100 hours of level 3 support coordination support is reasonable and necessary for CHPH in the circumstances. Any additional support coordination would not meet the thresholds in s 34(1)(c) and (e) of the NDIS Act.
The NDIA has published information explaining 'support coordination'[43] in the context of a participant's plan, including:

[106]

As can be seen, specialist support coordination is focussed on reducing complexity and overcoming immediate and/or significant barriers in plan implementation. The information includes the example of 'Aaron', which suggests that specialist support coordination might assist managing a change in participant circumstances, after which it will no longer be required.
Nevertheless, it can be accepted that level 3 support coordination is intended to provide specialist support in complex cases. I am satisfied this is such a case.
CHPH has complex disability support needs and the coordination of supports involves a multidisciplinary approach and a number of support workers trained in providing the high intensity support, including with enteral feeding, that CHPH requires.
The parents each gave extensive and detailed evidence addressing the support coordination tasks, including administration, recruitment and engaging with the NDIA and the Tribunal, about which they were cross-examined.
The mother's 'Bishop Disability Management - Time Commitment Overview May 2025' document[45] contains information about time spent on a variety of tasks and activities relating to the children. I accept this document provides an indication of the time the parents, particularly the mother, spend on the activities it describes for CHPH and KPHDJ. This appears to amount to more than 37 hours per week for both children. I do not consider the document to be an accurate summary of CHPH's support coordination tasks and the time required. Attending medical and health appointments is not a support coordination responsibility, although it is clearly a parental or carer responsibility. As scheduling, travel and appointments are bundled together, it is not possible to extract support coordination information from the document.
Nevertheless, I am satisfied support coordination for CHPH, including sourcing, selecting, vetting, acquiring, managing and coordinating supports to address CHPH's disability support needs, is complex and time-consuming. This is supported by the occupational therapist's evidence.
I accept the complexity and the time is increased by support worker training and turnover, as well as the scheduling of and communication with allied health practitioners and medical specialists, and the various interactions with and the documentary requirements of the NDIA. No doubt proceedings in the Tribunal add to the load.
Importantly, part of the complexity in CHPH's case arises from the nature of the household, in which there are two child participants with severe disability. This adds significantly to the complexity of arranging, orchestrating, coordinating and managing disability supports within the household.
In this context, progress towards the goals and aspirations stated in CHPH's plan, and CHPH's safety and wellbeing, are highly dependent on successful and sustainable coordination of the complex disability supports CHPH needs.
CHPH is non-verbal and unable to verbally communicate needs and requires close observation, documentation and communication between support workers, carers, allied health support providers and medical practitioners. This adds to the complexity and the time required, and to the importance of ensuring successful and sustainable support coordination for CHPH.
The evidence given by each parent in respect of the stress and complexity of managing consumable disability supports, including HEN products, hygiene and PEG feeding stocks and medications, as well as coordinating appointments, interventions and support workers is compelling. I accept both parents are experiencing high levels of stress and other emotional or psychological symptoms as a result of the circumstances in which they find themselves, and they are struggling to cope. The mother's treating general practitioner and psychologist each described this as the cusp of carer burnout. I accept that assessment and, having heard the father's evidence, consider it probably applies to him as well, albeit the father's psychological condition is not disclosed in medical or psychological evidence.
On the evidence of the mother's treating doctor and psychologist, it is probable the mother's psychological condition, particularly her inattentive ADHD, has an impact on the time and stress of coordinating supports for two children with severe disability. This must be viewed through the lens of CHPH's disability support needs. To the extent the mother's capacity for complex support coordination is adversely affected by her psychological condition, the question is how this should be addressed to ensure successful and sustainable coordination of CHPH's disability supports.
When evaluating whether additional support coordination is reasonable and necessary for CHPH, limits on the mother's capacity to successfully and sustainably meet CHPH's support coordination requirements should be taken into account. The same applies to the father's circumstances.
All these considerations are relevant to s 34(1)(c) and (e) of the NDIS Act and s 3.4(a) and (c) of the Supports Rules. The principles in s 31 of the NDIS Act are instructive.
The NDIA asserts 200 hours per years support coordination (150 hours at level 3 and 50 hours at level 1) does not represent value for money.
I do not agree.
The benefits to CHPH of ensuring successful and sustainable coordination of CHPH's complex disability support needs are clear. CHPH's safety and wellbeing depend upon this being delivered, and it is likely to be instrumental in supporting progress towards CHPH's stated goals and aspirations. The cost of the alternative, in which the parents, particularly the mother, would have less than 2 hours per week support coordination at level 3, could be great if the parents are not able to successfully and sustainably bear the load of coordinating CHPH's reasonable and necessary disability supports. Any deterioration of the psychological condition of the mother, and possibly the father, would likely adversely affect and reduce their capacity to coordinate the complex support CHPH needs. The prospect is not fanciful or remote.
I am satisfied that 200 hours per year support coordination, 150 hours funded at level 3 and 50 hours funded at level 1, represents value for money in the context of CHPH's family circumstances, and the likely reduced support coordination capacity of the mother. The likely benefits to CHPH from 150 hours level 3 support coordination and 50 hours level 1 support coordination include the sustainable and continuing provision of supports on which CHPH's safety and wellbeing depends, and which are reasonable and necessary to meet CHPH's disability support needs. It is also likely, as Dr Pincus and the mother's treating psychologist observed, CHPH is likely to benefit from reduction in the parents' stress and support coordination commitments, which can be expected to increase their capacity to be emotionally available and vigilant when supporting CHPH. Against this, the cost saving of providing 100 hours level 3 support, less than 2 hours per week carries attendant risks to CHPH's safety and wellbeing. I am satisfied this is outweighed by the likely benefits to CHPH of providing the support coordination sought.
I am satisfied the threshold in s 34(1)(c) of the NDIS Act is met.
I am also satisfied it is reasonable to expect the parents to meet a substantial part of the support coordination requirements for CHPH. In all likelihood, their contribution will far exceed the funded component of less than 4 hours per week. Even though there are difficulties with the mother's 'Bishop Disability Management' document, I accept the family, particularly the mother, is likely to provide a substantial ongoing contribution coordinating CHPH's disability supports.
I am satisfied the threshold in s 34(1)(e) of the NDIS Act is met.
In conclusion on this point, I am satisfied that 200 hours of support coordination (150 hours at level 3; 50 hours at level 1) is a reasonable and necessary support which meets each of the thresholds in s 34(1)(aa) to (f) of the NDIS Act and the requirement in s 7(3) of the Miscellaneous Transitional Rules.

[112]

As can be seen, 'usually' a plan for a participant child under 9 years old would run for 2 years unless the child participant's needs are likely to change or one of the four criteria for a 1-year plan apply.
The term 'intensive capacity building supports' is not given any special meaning in the Plan Guidelines, the Supports Rules or the NDIS Act. It is to be distinguished from 'high intensity supports' (such as enteral feeding) which are discussed in the Price Guide with reference to supports set out in Schedule 2 - Module 1 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018. Plainly read, the adjective 'intensive' refers to a high level or degree of intensity of the capacity building supports.
The capacity building supports approved for CHPH include regular or periodic occupational therapy, physiotherapy, speech pathology, psychology, orthoptist, dietetics, continence nurse specialist and orthotist supports, as well as weekly support coordination at level 3 and level 1; annual provisions for nursing supports under the delegation and supervision model of care; and provision for home and vehicle modification assessments. It is conceivable, as the NDIA argues, that these supports meet the 'intensive capacity building supports' threshold. The quantum of capacity building supports suggests this conclusion. The regularity or periodic nature of the capacity building supports suggests that these are not 'intensive' but are structured to meet CHPH's ongoing disability support needs.
Even if this is not accepted, the purpose of the 1-year plan policy guideline on this point is to monitor 'how the intensive supports are working', whereas the usual plan duration for a child under 9 years old is 2 years. From this it can be understood that the requirement for a shorter plan period for a child participant who is under 9 years old is not attributable to the child's growth, but to the efficacy of the intensive capacity building supports funded under the NDIS.
CHPH is almost 9 years old. On the evidence of Dr Pincus and Ms Wragg, it can be expected aspects of CHPH's development and functional capacity are likely to plateau by the age of 9 or 10. It is probable CHPH will require time to utilise the new eye gaze device and a new wheelchair in the context of other capacity building supports. It is not clear that a 1-year plan would be of sufficient duration to enable the efficacy of these devices and related capacity building supports to be assessed once CHPH has some experience using them.
In the NDIA's submission, the key reason a 1-year plan should be adopted relates to the previous over-utilisation of past plan funding.
The over-utilisation of approved funding in participant's plan is a serious matter. If participants over-utilise approved funding in their plans, the participant might not be able to obtain the supports they require and, if additional funding is approved, this raises a question about the financial sustainability of the NDIS.
CHPH argues that the over-utilisation was necessary as the NDIA under-funded reasonable and necessary supports for CHPH from October 2023. CHPH alleges the insufficiency of funding and the anticipated over-utilisation was discussed with the NDIA ahead of time, and this was squarely raised in the context of review processes under s 100 of the NDIS Act and in the context of these proceedings. In CHPH's submission, once appropriate levels of reasonable and necessary supports are determined, there will be no further need to over-utilise CHPH's plan funding. There is some force to this argument.
The Tribunal's decisions in these proceedings provide for a substantial increase in reasonable and necessary supports for CHPH, including substantially increased support worker hours each week.
This is not a case involving unauthorised or wanton expenditure of approved funds in a participant's plan without reasonable cause. I accept the parents are well aware of the requirement in s 46(1) of the NDIS. The parents communicated CHPH's complex disability support needs and their difficulties coping within the limit of approved funding to meet these needs to the NDIA. They foreshadowed the expected over-utilisation of CHPH's approved funding to the NDIA. I accept they understand the importance of ensuring that funding in CHPH's plan is managed and expended within the budget approved for the period of the plan.
I do not accept the proposition that a 1-year plan would avoid further over-utilisation. The monitoring of expenditure under CHPH's plan by the NDIA is not confined to a plan re-assessment. One would expect monitoring of expenditure under CHPH's plan would occur periodically as a matter of usual administration and good practice, regardless of the scheduled re-assessment of the plan. This is especially so, where the NDIA is concerned funds approved in a participant's plan might be over-utilised.
Clearly enough, should a problem arise which requires early re-assessment of CHPH's plan, provision is made in s 47A for a variation to be made or in s 48 for a plan re-assessment to be initiated. This can be instigated at any time by the NDIA or at the request of the participant.
On balance, I am satisfied that a 2-year re-assessment of CHPH's plan is most appropriate in the circumstances. This will allow sufficient time for CHPH to adjust to the new levels of support provided as a result of decisions in these proceedings, as well as new capacity building supports, prior to further assessment of the efficacy of such supports. It will also mean that CHPH will be 10 years old when the next plan re-assessment is undertaken. On Dr Pincus' evidence, this would be sensible as CHPH's support needs have stabilised to some degree and re-assessment would be appropriate before the next stage of CHPH's life and development.
For these reasons, I am satisfied the usual approach should be applied to re-assessment of CHPH's plan. This is consistent with CHPH's request. It is appropriate in the particular circumstances even if CHPH's capacity building supports are considered to be 'intensive'.
Thus, for the purposes of s 33(2)(c) of the NDIS Act, CHPH's plan is to be re-assessed 2 years from the date of this decision.
It is appropriate to observe, furthermore, it is sensible to synchronise plans for CHPH and KPHDJ as much as possible. As there is ongoing disputation between the parents and the NDIA in respect of reasonable and necessary supports for KPHDJ, and related proceedings in the Tribunal commenced in July 2025, a 1-year plan for CHPH might not be of sufficient duration to reasonably synchronise KPHDJ's plan following completion of the Tribunal proceedings.

CHPH and National Disability Insurance Agency (NDIS) [2025] ARTA 2393 (19 September 2025)

At a glance

Court

Decision date

Source

Judgment (130 paragraphs)

CHPH and National Disability Insurance Agency (NDIS) [2025] ARTA 2393 (19 September 2025)

Legislation Cited (11)