• Ms Leenane Lindsay, the continence nurse, in her report shows the significant differences between an RN and a high-skill support worker and the guideline practice.
• Finally, I stand by my statement on page 949 of the T bundle. On page 953, it shows the decrease in funds over the years, and with that I was managing it with guidance from the support coordinator, Robert, who also passed away in November 2024, which affected me as well, until it became unbearable as there were no funds to support the applicant's growing needs, which most times are urgent, with delays from NDIS every time.
• As a mother, I have been subjected to various false allegations and untrue claims about my personality, but I take it as life experience. However, it should not keep going; there is a limit to how much my mental stability can take.
• Most of the defence from the NDIS during this tribunal has been about me. Ms (name redacted) this, Ms (name redacted) that, which is uncalled for, since the hearing is about the wellbeing of the applicant, which the legislation is about. Since 2015, I have never once had any holiday or break, and I never complained, even when therapists and doctors said otherwise. I just want to be there for my son, yet I still get called names. I have the right as a mother to seek any intervention for my son - is that a crime? I have the right to seek a second opinion. I have a good relationship with the teams for my son, even though sometimes I might disagree with them, which is okay. I have never had any bad relationships, and I trust the over 8 to 10 teams in charge of FFNR.
• FFNR is actually saving the government by being cared for at home rather than in hospital, and Dr Has stated those facts. Dr Has as known the applicant and knows what could happen if any obstructions occur to the only thing, he uses to breathe to stay alive. Why reduce such services that have proven to be good for him, when taking away RN funding is leading to a decline in the care the applicant receives at home, more burden on the family, and more hospital admissions?
• All the timesheets are there for NDIS to calculate outstanding funds from December 2024 to date.
• The therapists' witness statements are very clear from the transcript of 26-28 November, and there is no need to repeat them. Grooming of the applicant, which requires two persons, includes second skin, and Ms Lee saying one person is enough is unrealistic in any way and misleading to the tribunal, unless Ms Lee can demonstrate how that can be achieved with the applicant's full-care needs. Ms Lee's statement that the applicant can move is also false.

1. I have been advised by the Tribunal's registry staff that subsequent to The Respondent providing its submissions, the Applicant's mother sent an email to the Tribunal purporting to respond to those submissions. My directions made at the end of the hearing made no provision for a right of reply to the Agency's submissions. For that reason, I have not read those submissions and will not record their contents here.

1. The various supports I am required to consider and then make findings as to whether they are reasonable and necessary are:

(i) 24/7 registered nursing care. > > (ii) Extra support worker hours (5 hours during the daytime, 5 hours at night: 10 hours per day in total); > > (iii) Payment of all outstanding invoices since July 2024 for physiotherapy, occupational therapy, wheelchair repairs, second skin, and "invoices for RN since December 2024 as the applicant continue [sic] to use 24/7 RN on minimal pay" > > (iv) a manual wheelchair (estimated at $27,008) > > (v) physiotherapy (hours unspecified); > > (vi) occupational therapy (hours unspecified); > > (vii) speech therapy (hours unspecified); > > (viii) dietician support 12 hours per year > > (ix) 3-4 weeks of respite; > > (x) Change in plan management > > (xi) Funding for a plan manager; > > (xii) two pairs of second skin replacement every 6 months; > > (xiii) $57,053.16 for consumables (nursing and incontinence consumables in the sum of $51 990.31 plus $5062.85 for feeding consumables).

2. Before I begin my consideration of the various contested supports, I believe it may be useful to make some overarching observations of all that was put before me, whether in the form of documents or the oral evidence from multiple witnesses.
3. Firstly, as I have previously noted, it is clear that FFNR's parents are both devoted and tireless in their efforts to act in what they consider to be their son's best interests. The same may be said of those clinicians and health workers who care for him.
4. Secondly it is also clear that FFNR's mother who is his primary carer is the driving force in determining what she considers is the appropriate level of support he requires.
5. However, in making my assessment, I must make an independent assessment of the objective evidence as to what is the appropriate level of support and who will be best placed to provide it. While the views of FFNR's mother should rightly carry some weight, those must be balanced against those of the health professionals many of whom have significant experience and expertise in what constitutes an appropriate level of care for a child such as FFNR with profound disabilities.
6. Also, as I previously noted, I will need to reach my own view on his level of awareness and capacities and any prospects of improvement he may have. This is an important consideration as this is a significant area of dispute, and it may be the case that some of the requested supports may provide little benefit in the longer term.
7. Finally, another important consideration is that there is a level of uncertainty of FFNR's prognosis. He is scheduled to have remedial surgery to address the progressive scoliosis which has some prospect of improving his posture and potentially reduce his needs for some of the requested supports. The second skin which currently addresses certain aspects of his disability is one such support.
8. In this regard it appears to me that while there are many requested supports I need to consider, my initial primary focus should be on the request for 24/7 support provided by registered nurses and the request for additional support worker hours. I will need to determine what should be the appropriate staffing levels to attend to a range of tasks such as repositioning (either manually or using a hoist) suctioning, attending to his hygiene and tracheotomy and monitoring of vital signs such as oxygen levels and possible seizures.
9. In making this decision, I am also cognisant in accordance with Rule 2.4 of the Rules to have regard to both the objects and principles of the Act and the need to ensure the financial sustainability of the Scheme.

1. The current funding model for equivalent supports is the following:
   • 1:1 support 24/7 by a High Intensity Support Worker (HISW), including 1:1 active overnight; and
   • Additional support of HISW on a 2:1 ratio for 6 hours per day.
   • Delivery of health supports by a Registered Nurse for 168 hours per year which according to the Agency's closing submission is part of the delegated care model where the RN delegates to and supervises the HISW.
2. FFNR's parents consider that the current level of support is inadequate, that HISW's lack the necessary expertise and that he requires 24/7 registered nursing support to address the following needs:
   • Suctioning every 15-30 minutes;
   • Application of eye ointment every 15 minutes;
   • Changing his tracheostomy and to assist with coughing
   • Replacement of the tracheostomy tip and the monitoring and checking of his cuff, three times per day;
   • Seizure management.
3. FFNR's parents assert that this level of care can only be provided by a RN and is beyond the expertise and training of general or specialised support workers.
4. The evidence which appears to support the need for the provision of a registered nurse 24/7 was provided by FFNR's mother, Dr Gunasekera, Ms McPherson (RN) Ms Cook Physiotherapist) and Ms Lindsay (Continence Nurse).
   • Dr Gunasekera, in his evidence said that FFNR required nursing care at home, to manage all the other complexity of his care with his eye issues and his tracheostomy and general care in terms of avoiding bed sores and getting pneumonias.
   • Ms McPherson's evidence was similar to that of Dr Gunasekera in that she believes the Applicant requires an RN due to his complex care needs, and requires full assistance with tracheostomy care, seizure management, care of the gastrojejunostomy tube, pressure area care and eye care.
   • Ms Cook indicated in her report that FFNR's medical and care needs are complex. He requires a minimum of two nursing staff at all times to provide adequate and safe care.[14] He also requires two nursing staff to transfer him via a hoist.[15]
   • Ms Lindsay in her report dated 24 April 2025 stated that FFNR requires 24/7 RN support and is currently funded for 15 hours which is inadequate given his extreme complex needs. I have reviewed Ms Lindsay's oral evidence before the Tribunal. She did not provide a formal opinion on the reasons why 24/7 RN support was required. However, in the course of her evidence it was evident she had amended her original report which outlined why she considered that level of RN support was required. That report had not been provided to the Tribunal or to the Agency but was submitted after she gave her evidence. It was not possible due to time constraints to recall her so she could respond to further questions concerning that amended report.
5. In response to this evidence the Agency in its closing submission noted the following:

• The doctor conceded that the Applicant needs a carer 24/7, not necessarily a nurse, who is trained and is capable in eye care;
• He conceded that the question of the appropriateness of using HISW was not within his domain.
• His opinion was based on his understanding of the reports provided by others;
• He had not seen FFNR in his home environment however assessed the level of care he was receiving at as very high;
• He was reliant upon the information provided by FFNR's mother and had not seen a copy of his daily care plan.

• Ms MacPherson has not directly provided FFNR with nursing support
• She has had limited time observing FFNR at home including 3 hours when she assessed him on 18 February 2025 and again briefly in September or October 2025;
• For the purposes of conducting her assessment in February 2025, she was not provided with any other reports or notes by his mother. Therefore, she was limited to what she observed herself or what FFNR's mother told her.

• Ms Cook conceded in cross examination that this was not her area of expertise.
• She had been provided a copy of Ms Davids' report (in particular Ms Davids' view that 24/7 RN care was not necessary) and had not contradicted that view in her report.

• The Tribunal should not give Ms Lindsay's amended report any significant weight due the lateness of its submission and the inability to ask further questions of her.
• Her assessment was to assess the Applicant's continence support needs and not to assess the Applicant's broader support needs;
• She assessed FFNR for less than two hours and in that limited time, the only care she observed was suctioning;
• She is not qualified to provide an opinion as to whether the Applicant requires either 24/7 RN support or alternatively HISW support because she has not worked in an ICU as a registered nurse, has not worked as an RN in a children's hospital, has not worked on a paediatric ward in a general hospital, has not cared for a child of the Applicant's level of disability in a home setting; and has not worked with a HISW
• She did not take into consideration the NDIS Practice Standards: High Intensity Support Skills Descriptors in preparing her report.

1. The witnesses who gave evidence on behalf of the Agency were Dr Warwick Butt and Ms Lee Davids.
2. Dr Butt's evidence in his report as it related to who was best placed to provide care for FFNR, said the following:
   • Properly trained HISW's are capable of providing tasks such as physiotherapy, bowel care, pressure care, positioning, and care of a tracheostomy.
   • The only task required to be performed by an RN is accessing the portacath. This occurs monthly at the Children's Hospital Westmead.
   • He did not consider there were any other regular tasks that should be performed by a registered nurse other than to check that all is well, check on carer standards and accuracy of observations.[16]
   • In his oral evidence Dr Butt stated that a HISW was capable of changing the Applicant's tracheostomy tube and any emergency changes of the tube and also attend to seizure management.[17]
   • While he acknowledged that medical emergencies could still take place for FFNR, they would in many cases be progressive rather than instantaneous and in the unlikely event of a sudden onset medical emergency a nurse would struggle and more intensive assistance such as calling an ambulance and paramedics would be necessary.[18]
3. In her report Ms Davids' stated:
   • Suctioning, medication administration, replacement of tracheostomy tip, monitoring of the tracheostomy cuff, and management of continuous feeds are all tasks that can be performed by a suitably trained support worker; The Applicant's care needs can be provided by trained support workers with RNs visiting for specific tasks.[19]
   • The Applicant can be supported overnight by a HISW.[20]
   • He does not require two support workers performing active overnight shifts.[21]
4. In her oral evidence Ms Davids said:
   • She said she would defer to Dr Butt's opinion that all tracheostomy care could be provided by a trained HISW and that the only task that should be performed by a registered nurse was accessing the portacath.[22]
   • She considered that carers can be trained to provide tracheostomy care without the need for a health professional being present.[23]
   • She had seen people without health professional qualifications managing tracheostomy care many times safely and a suitably trained HISW could provide tracheostomy management and care.[24]
5. In the circumstances I consider the evidence of Dr Butt and Ms Davids should be given greater weight. Both provided straightforward and unequivocal opinions that the range of tasks currently being performed by registered nurses can be performed by high intensity support workers provided that have the necessary training. I also considered that both witnesses are highly qualified and experienced in both hospital and community care of children with severe disabilities.
6. The evidence provided from the Applicant's witnesses was less compelling. In many cases such as that provided by Dr Gunasekera and Ms Cook, they freely conceded that the issue was outside their area of expertise. In the case of Ms McPherson and Ms Lindsay's evidence they had both had limited time observing FFNR's care needs or were expressing opinions beyond their qualifications and areas of expertise.
7. For completeness' sake I find that the tasks such workers could perform include suctioning, medication administration, replacement of tracheostomy tip, monitoring of the tracheostomy cuff, and management of continuous feeds.
8. Based upon these conclusions I cannot approve the requested funding for registered nurses on a 24/7 basis. I consider the current funding for 168 hours per year for a registered nurse per year should be sufficient for training, assessment, and monitoring purposes.

Support 2 (10 extra support worker hours per day)

1. The current funding for support workers is the following:
   • 1:1 support 24/7 by a HISW, including 1:1 active overnight;
   • In addition, support of HISW on a 2:1 ratio for 6 hours per day.
2. FFNR's parents initially requested an additional HISW for a total of 10 hours per day comprised of 5 hours during the day and a further five hours at night.
3. The basis for the additional support worker is the contention that in order for FFNR to be transferred using a mobile hoist, three people are required to perform this. This consists of one person to operate the hoist, one to support the child's lower limbs and the third to support his head and protect his eyes and his tracheostomy.
4. During the course of the hearing FFNR's mother appeared to vary the number of hours being sought at one point indicating that an additional six hours would be sufficient and then revising this figure to 12 hours per day.
5. Regardless of the actual number of hours being sought, it is clear that the parents believe that as three people are required to perform hoist transfers, an additional support worker is required.
6. That would be on the basis that having regard to the request to have a registered nurse for 24 hours per day, and the existing 24/ /7 funding for one support worker with an additional 6 hours funded for a second support worker.
7. Evidence in support of the need for a three-person transfer was provided by FFNR's mother, Ms Cook Ms Moodley and Ms McPherson.
8. I do not propose to outline these witnesses' evidence in detail suffice, to say that in essence what they said reflects what I have written in paragraph 157 above.
9. Both the Agency's witnesses, Dr Butt and Ms Davids gave evidence that three people are not required to conduct hoist transfers and that two people could perform the task safely.
10. In particular, their evidence was that by using low-cost solutions such as a cervical collar or neck brace and eye goggles which would obviate the need to a third person to support his head and neck.
11. Various objections were raised as to the safety or suitability of the cervical collar and goggles or other forms of eye protection, principally by Ms Moodley however I accept the evidence of Dr Butt and Ms Davids that the proposed solutions will be both safe and effective.
12. I believe the weight of evidence indicates that FFNR can be transferred either manually or using a hoist by two adults. In my view that ratio may also be required when changing FFNR's continence pads or removing and replacing his second skin.
13. Having reached that conclusion I must then address what is an appropriate number of high intensity support workers and the hours they are available.
14. At present there will be a HISW present 24/7 with a second available for an additional six hours. I take proper account of the availability of both FFNR's parents to also assist with his transfers, however, also note the evidence concerning his mother's own health issues in part arising out of the physical impact providing his care has had upon her. I also take proper account of the need for both parents to have adequate time for sleep and their other family responsibilities.
15. For this reason, I consider having an additional HISW available to perform transfers and other caring responsibilities will be essential.
16. Under the current plan there is funding for two HISW's for six hours each day. Taking account of my observations in paragraph 166 I consider that six hours of 2:1 is inadequate.
17. I consider an additional six hours for funding HISW would be an appropriate amount which his parents can use flexibly in terms of FFNR's daily and nightly schedule.
18. I therefor approve an additional 6 hours for a second high intensity support worker.

1. FFNR's parents in their submission wrote the following in response to the Agency's SOI:

The NDIS must take immediate action to clear all outstanding invoices for services provided since July 2024, when a funding shortfall first occurred. This shortfall created significant challenges for the participant's care and well-being, as essential services, including nursing care and support workers, were not adequately funded.

Despite repeated requests and communication from the participant's representatives, the NDIS failed to act promptly to address the funding gap. This delay not only jeopardized the participant's access to critical care but also placed undue financial and emotional strain on the participant's family and service providers. The participant's mother undergo surgical procedure in which NDIS was informed beforehand with no response from NDIs even during this critical procedure where the Participant's mother was in ICU, during this time it is with the help of physiotherapist, the nursing staff and support workers who have been caring the participant without pay.

Service providers have continued to deliver essential care and support despite the lack of timely payments, further highlighting the urgent need for the NDIS to fulfill its obligations. Outstanding invoices have accumulated over several months, and this unresolved issue continues to impact the ability of providers to sustain services moving forward.

It is imperative that the NDIS rectifies this situation by clearing all outstanding invoices and ensuring that future funding aligns with the participant's complex care needs. Delays of this nature are unacceptable and contradict the principles of fairness and timely support that underpin the NDIS framework

1. I note that there was little or no evidence provided that addressed this requested reimbursement. Neither party addressed this except perhaps obliquely in their closing submissions.
2. In the absence of any guidance from the parties I will make my own assessment on what is being sought.
3. In essence FFNR's parents are seeking reimbursement of the shortfall in funding after the Agency varied the amount of funding in July 2024. In effect the Applicant's parents are asking the Agency to reimburse the difference between the amount funded prior to July 2024 and that provided after that date. It also appears from the Applicant's submissions that the bulk of that shortfall relates to nursing and support worker hours which were either not approved or reduced.
4. However, that position presupposes that the Tribunal reinstates the previous level of funding to pre-July 2024 levels. As I have already determined at least as it relates to the requested funding for 24/7 registered nursing care and additional support worker hours I have not done so.
5. Therefore, I consider this request is misplaced and cannot be approved.

1. FFNR's parents provided the following response to the Agency's submissions concerning the need for a manual wheelchair:

The funding request for a manual wheelchair amounting to $27,008.00 was denied by the NDIS. A manual wheelchair is essential as a backup when the participant's power wheelchair requires repairs or is unavailable. This need is particularly critical given the participant's condition as double incontinent. If the power wheelchair becomes dirty due to stool contamination, there is currently no alternative wheelchair available for immediate use.

Renting a wheelchair is not a viable option, as rental wheelchairs would need to be customized to meet the participant's specific needs. The cost of renting a customized wheelchair exceeds the cost of purchasing one outright. Additionally, the participant's Occupational Therapist (OT) has submitted an Assistive Technology (AT) report recommending the provision of a new manual wheelchair.

The OT's report outlines the following key points:

• The participant is growing, and the old wheelchair, which is more than seven years old, is no longer appropriate or functional for their needs.

• The old wheelchair cannot be further modified or adjusted to accommodate the participant's current requirements.

• A manual wheelchair is a necessary replacement to ensure the participant has access to mobility and care at all times.

Refusing this funding not only limits the participant's independence and mobility but also places the participant at increased risk of unmet care needs during periods when the power wheelchair is unavailable. The funding for a manual wheelchair is both a practical and cost-effective solution to ensure the participant's needs are consistently met.

1. FFNR's parents also submitted that a manual wheelchair was necessary to provide an alternative when FFNR may have soiled his powered wheelchair.
2. In response the Agency made the following observations:
   • FFNR is scheduled to have remedial back surgery to correct the scoliosis in his back. This surgery was scheduled to have taken place in late 2025, however it had to be postponed due to FFNR suffering a fractured femur in August 2025.
   • It anticipates, based upon Dr Gunasekera's evidence[25] that this surgery would most likely take place in the first half of 2026.
   • Dr Gunasekera anticipates that the outcome of this surgery is that FFNR's back should be permanently straightened.[26]
   • It further submitted that it should not assumed that the proposed manual wheelchair (a Quikie Iris tilt in space wheelchair) trialled with the Applicant by Ms Moodley in April 2023 will continue to be suitable (and therefore, effective and beneficial) for FFNR following his spinal surgery.
   • Based on the above, it submitted that it is current good practice for the prescription and funding of a manual wheelchair await the outcome of the spinal surgery.
   • Addressing the issue of the need for an alternative wheelchair in the event of his powered wheelchair becoming soiled, the Agency noted the continence nurse, Ms Lindsay's oral evidence that the Applicant's current continence aids were reported to her to be sufficient to contain accidental leakage.
   • If, however, the soiling of the wheelchair was an ongoing issue, this could be addressed by the purchase of washable chair pads for the wheelchair or reviewing his continence pads and ensuring they are put on properly.

1. I accept that there may be circumstances when a manual wheelchair may be required in the event of his powered wheelchair breaking down or requiring maintenance. I also note his parent's concerns about the need to have a hired wheelchair customised however that may be less of an issue once the proposed remedial surgery for FFNR has taken place.
2. In any event I am not satisfied that a strong enough case has been put before me that would lead me to approve an additional manual wheelchair in addition to the existing powered wheelchair.
3. This requested support is not approved.

1. I note that FFNR's current plan provides funding for 66 hours per year for physiotherapy. The agency's position is that this amount remains adequate.
2. As noted by the Agency in its final submissions, this current funding is stated in the plan to be for a physiotherapist to develop a program to manage the Applicant's range of motion, complete a manual handling program and provide training to the Applicant's supports.
3. The principal evidence on behalf of the Applicant was provided by his current physiotherapist Ms Cook:
   • Since she commenced treating the Applicant in 2020, she has not observed any improvement in the Applicant's physical function.[27]
   • Physiotherapy will not improve the Applicant's physical function[28] and he will not make functional gains.[29]
   • The purpose of physiotherapy is to maintain where the Applicant is now in terms of function and prevent decline in his function.
   • Physiotherapy focuses on maintaining the Applicant's respiratory function and muscle length and joint range; and monitoring his standing program.
   • This entails establishing the stretching program, training the family and carers in the program and periodic review of that program once per fortnight monitoring his standing program which requires periodic review once per fortnight of his use and positioning in the standing frame.
4. Ms Cook in her report dated 5 December 2024 made the following recommendations:
   • FFNR have three sessions of chest physiotherapy per day which could be provided either by a physiotherapist or his mother.[30]
   • When he is unwell, he should have chest physio three times daily provided by a physiotherapist.
5. The need for regular physiotherapy was also addressed by Dr Gunasekera and the Agency's witnesses, Ms Davids and Dr Butt. My assessment of their evidence is that such therapy can be provided by suitably trained adults who are not health professionals.
6. The Agency in its closing submission stated the following:
   • Physiotherapy intervention provided when the Applicant is unwell is "clinical treatment of a health condition" and is, therefore, not an NDIS support pursuant to item 12(a) of Schedule 2 of the Transitional Rules.
   • The records produced by the Westmead Children's Hospital demonstrate that on several occasions between January 2021 and September 2022 the Applicant received Hospital in the Home physiotherapy delivered by the physiotherapists at the Children's Hospital Westmead for chest physiotherapy to treat chest infections.
   • If the Applicant requires chest physiotherapy in the home to treat chest infections, it is the responsibility of NSW Health to provide that treatment and the evidence before the Tribunal establishes that NSW Health has provided that treatment.
   • On this basis the Tribunal should find that the currently funded 66 hours per year of physiotherapy meets the Applicant's support needs and is a reasonable and necessary support for the Applicant.
7. While it is clear that regular chest physiotherapy should continue to be a regular part of FFNR's daily routine, I am satisfied that this does not need to be provided by a physiotherapist and can be provided by a family member or suitably trained support worker. I am also satisfied that in the event FFNR does become unwell, additional physiotherapy can be provided by the Westmead Children's Hospital's Hospital in the Home program.
8. For these reasons I do not approve the requested increase in physiotherapy hours.

Support 6 (Additional occupational therapy hours)

1. There is currently funding for 50 hours of occupational therapy in FFNR's plan.
2. This is a stated support and in the current plan is stated to be for an Occupational Therapist to assist in implementing strategies aimed at improving daily independence, to complete a full functional capacity assessment, and to monitor the Applicant's assistive technology needs.
3. It is not clear from the Applicant's material how many additional occupational therapy hours is being sought. The agency in its closing submission noted that Ms Moodley, FFNR's current occupational therapist has not specified in her reports what if any additional hours are being sought.
4. In her evidence to the Tribunal Ms Moodley said that FFNR requires, in terms of occupational therapy, regular review of his equipment education of carers and support staff on postural management, undertaking of functional assessments and preparing reports; preparing manual handling guidelines and training staff.
5. She is not providing any regular 'hands on' therapy as that does not appear to be necessary.
6. In terms of how many hours she has undertaking in the 12 months from October 2024 to October 2025 Ms Moodley estimated she had claimed and been paid for 44-55 hours.
7. The Agency for its part submitted that there is insufficient evidence before the Tribunal for it to be satisfied that an increase in Occupational Therapy support would be effective and beneficial for the Applicant or that it represented value for money.
8. I am inclined to agree with that position. In order for me to approve additional hours I would require detailed evidence both as to the number of hours requested, how those proposed hours would be used and the suggested benefits to the Applicant from that increased support. None of this information is before me and therefore I cannot approve what I consider to be aa request lacking in detail.
9. The requested additional support is not approved however I consider there remains an ongoing role for occupational therapy and the currently approved hours appears to remain adequate for what is intended to provide.

1. FFNR's current plan provides funding for 25 hours per year for speech therapy support.
2. His mother is requesting such funding be increased to either one to two hours per week.
3. From the evidence before the tribunal, it does not appear that he has been engaging with regular speech therapy.
4. In order for me to find that speech therapy should be funded I need to be satisfied that FFNR has some degree of capacity to communicate preferably verbally or by some other means.
5. The weight of the evidence is that FFNR has little or no capacity to communicate. In this regard I consider the following evidence carries significant weight:
   • Dr Gunasekera in his evidence said that he had not observed any significant responsiveness, that FFNR has "minimal evident brain activity" and, concerning his degree of physical functional capacity there is "very minimal clear evidence of a determinative response. He further noted that he had not seen any significant change in the Applicant's level of interactivity or responsiveness since February 2021.[31]
   • Dr Gunasekera asked if it was possible that FFNR could develop some speech capacity said that that would depend on whether there has been a formal speech assessment determining that the Applicant had the ability to communicate.[32]
   • Dr Butt's considered opinion based upon the material he was provided is that has no capacity to interact with the outside world.[33] He also considers that he will most likely never speak.[34]
6. While there is other evidence addressing FFNR's capacity for communication whether verbally or otherwise I consider that Dr Gunasekera and Dr Butt are best placed to provide a professional opinion on this subject.
7. I note that the Agency in it closing submission stated that its revised position was that not only should the Tribunal find that the requested speech therapy support is not a reasonable and necessary support for the Applicant, but the Tribunal should also determine that there is insufficient evidence for it to be positively satisfied that any speech therapy would be a reasonable and necessary support for the Applicant.
8. I do not consider that would be appropriate.
9. The Agency in its own submission noted that FFNR has not had any speech assessments conducted or engaged in any therapy.
10. While the evidence strongly suggests that FFNR has little or no capacity for communication, verbal or otherwise, there remains some element of uncertainty here. As Dr Gunasekera noted responding to a question concerning his capacity for speech, or capacity to make any functional gains with speech therapy, was that that would depend on whether there has been a formal speech assessment determining that FFNR had some capacity to communicate. To the best of my knowledge no such assessment has taken place and it seems appropriate that for all concerned that such an assessment take place.
11. For that reason, I do not consider it appropriate to remove all funding for speech therapy.
12. I consider it appropriate to approve a total of 20 hours for speech therapy for the express purpose of allowing a detailed assessment of his capacity to communicate.

1. I note that there is current funding in FFNR's plan for 12 hours support from a dietician. I further note that according to the Respondent's submissions that funding has not been utilised.
2. It appears from Dr Gunasekera's evidence that FFNR receives the services of a dietician through the hospital which has been managing his nutritional needs.[35]
3. The Agency in its closing submission (at paragraph 172) stated the following:

It was also the evidence of Dr Gunasekera that, as the Applicant's treading paediatrician, he had not identified the need for the Applicant to have any dietician services beyond those currently being provided by the Children's Hospital of Westmead. Nutritional screening of the Applicant had been undertaken recently at Dr Gunasekera's request, and he did not think there were any concerns.[36]

1. Based on the above considerations I do not approve the requested additional funding for a dietician as this need is being met through the Westmead Hospital, it is not necessary to approve any funding for a dietician.
2. The requested support is not approved.

1. It appears that the basis for the requested funding for respite funding is the prospect of FFNR's mother requiring a hospital admission and undergoing surgical procedures. It also appears that funding is requested to cover between 3 to 4 weeks.
2. In their submission the Applicant's parents stated the following concerning the need for respite funding:

The participant's mother underwent surgery and was admitted to the hospital, spending three days in the ICU due to a cardiac arrest (as evidenced by the surgeon's letter provided). Prior to the surgery, the NDIS was informed of the situation and provided with the surgeon's letter requesting 3-4 weeks of respite care for the participant.

This respite care was essential, as the participant's mother was unable to provide support during her recovery period. With additional surgeries already scheduled for next year, it is imperative that adequate funding for respite care is approved in advance to ensure the participant's care needs are met without interruption.

The participant's complex care requirements necessitate professional care during these periods, particularly given the mother's health challenges and inability to provide assistance. The failure to allocate funding for respite care would place an undue burden on the participant's family, jeopardizing both the participant's well-being and the mother's recovery.

Respite care funding is not only critical to maintaining continuity of care for the participant but also aligns with the NDIS's commitment to supporting both participants and their families in managing their long-term needs effectively.

1. I have noted the Agency's contention that if I were to approve 24/7 nursing care and the additional 10 hours a day for support workers it would not be necessary to also approve funding for respite as FFNR's care needs would already be adequately provided for. I also note that FFNR's mother in her evidence conceded that was the case.[37]
2. The Respondent for its part made the following observations regarding the requested respite funding:

It was the evidence of the Applicant's mother at the hearing that she cannot leave the Applicant, even with an RN and a support worker supporting the Applicant because she must supervise them.

It was put to the Applicant's mother in cross examination that if she cannot go out and leave the Applicant, what is the point of respite care. Her answer was that she could get another RN. She accepted that she would use the respite funding to pay for two RN's and a support worker. She would not be using the respite funding for respite, she would use it to pay for a second RN.

In the face of that evidence, the Tribunal cannot be satisfied that the requested respite support represents value for money. It must find that section 34(1)(c) of the Act is not met and that the requested support is, therefore, not a reasonable and necessary support for the Applicant.

1. In addition, the Agency further noted that there had been no evidence provided as to the timing and duration of the surgery and hospital admissions scheduled to take place in 2026.
2. It submitted that once the timing and duration of these procedures was known, this could be addressed by the parents making a section 48 change of circumstances application to the Agency for funding for respite.
3. In order for me to approve respite funding I would require some indication of the basis for this as well as the timing and duration.
4. I am entirely sympathetic for the need of parents of children with such high needs as FFNR to have some respite at the very least to avoid carer fatigue. However, in order to approve such funding, I would require more detailed evidence than what is currently before me.
5. For that reason, I cannot approve this requested funding.

1. FFNR's funding is agency managed. The Agency asserts that the change from plan management to agency managed was initiated due to the significant overspending and moneys not being spent in accordance with the plan.
2. The Tribunal notes that if a plan is agency managed all service providers must be registered with the Agency.
3. For their part FFNR's parents assert that the overspending on his plan was caused by a significant reduction in his overall NDIS funding stating in response to the Agency's

The plan has been exhausted because the required funding from the plan has been taken away without any reasonable evidence provided to the participant's family and this is the actual risk and threat to participant's wellbeing identified which is explained below with example and proof for your perusal.

1. The Agency in its closing submission expressed concern that if the management reverted to plan management such overspending would continue and noted further that FFNR's parents had continued to use his funding for the provision of registered nursing care despite such services not being approved, and would continue to do so despite whatever decision the Tribunal should make.
2. In such circumstances I would require a compelling reason to order a change in the category of plan management.
3. I do not consider such compelling reasons have been made.
4. Therefore, I do not approve the request to change the category of plan management.
5. Before leaving this topic, I note that the Agency made extensive reference in its closing submission to the contractual arrangement between Moonlight Healthcare and the Caring Way Pty Ltd and the payment of FFNR's brother for acting as a support worker as additional reasons why the management of funds should continue under Agency control. Given I have already determined this issue, I merely note these references for the record.

1. As a precondition of my consideration of, and potential approval for funding for a plan manager, I would firstly need to approve a change in the plan management from agency managed to either self-managed or plan managed.
2. For the reasons I have outlined in my consideration of that requested variation in plan management, I have not agreed to that change.
3. It is therefore not necessary to consider this request further and that request is therefore not approved.

Support 12 (two pairs of second skin replacement every 8-9 months)

1. This particular requested support raises a number of issues not the least of which is related to the proposed corrective surgery for FFNR designed to address his progressive scoliosis.
2. It is reasonably clear from the evidence that FFNR's current second skin is expressly cut and contoured to meet his current size and body shape. The current second skin was provided in March 2025 and the evidence indicates that it is now in poor condition.
3. However, he is scheduled to have the corrective surgery referred to in paragraph 237 sometime in the coming weeks or months.
4. As the Agency noted in its closing submission, assuming all goes well with the spinal surgery, it will change the shape of the Applicant's body and alter his posture. Dr Gunasekera's evidence is that the expected outcome of the surgery is that the Applicant has a "permanently straightened back".[38]
5. As the Agency noted in its closing submission there appears to be a range of opinions as to what the role of the second skin is, and what aspects of his disability it seeks to address.
6. Despite those differences of opinion, I am satisfied that it has been beneficial for FFNR. I also consider that the evidence does indicate that FFNR requires two sets of the second skin to allow for the fact that he is currently wears it throughout the day and night and that one set will need to be available when the other is being washed and dried.
7. I agree that there seems to be little benefit in approving a replacement second skin in circumstances in which if it is fitted now, with his current body shape and dimensions, it may no longer fit once the surgery has taken place and there is a change in the shape of his upper body particularly.
8. The Agency's position based on the medical evidence is that further prescription and funding of the second skin should await the outcome of the spinal surgery, and for the operating surgeon Dr Gray to review the Applicant and recommend whether the torso part of the second skin was required or not.
9. I am inclined to agree with that approach, however that will in large part on the timing of the proposed procedure. It is clear from the evidence I heard that FFNR will require a significant period of time to recover from the surgery and engage in post-surgery rehabilitation before the final outcome is known and the question of the ongoing need for the second skin can be determined.
10. It is also not clear if the New South Wales public health system can provide other forms of body or structural supports in the interim if it is deemed, they may be necessary.
11. Based upon this level of uncertainty I do not think it appropriate to approve the request for two sets of the second skin at the present time.
12. I note though that in the event Dr Gray or other health professional advise that a second skin or other forms of structural support are required and appropriate quotes are provided it would be appropriate to have two sets for the reasons previously outlined.
13. In conclusion I find that the requested funding for two sets of second skin cannot be approved by the Tribunal.

1. FFNR's parents have requested funding in the amount of $51,990.31 for consumables.
2. The amount requested is based upon the recommendation made by FFNR's continence nurse Ms Leeane Lindsay dated 24 April 2025.[39]
3. I also note that the report of Ms Julia Haydon, Dietician, dated 25 March 2025, requested $5,062.85 for feeding consumables
4. The current level of funding in FFNR's plan is $20,426.28.
5. The Agency submitted that the quantities of consumables requested by Ms Lindsay was excessive and therefore did not represent values for money.
6. It also submitted that certain categories of consumables were not NDIS supports as that term is defined in section 10 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (the Transitional Rules). It identified the following as falling within that definition:
   • Item 12(d) of Schedule 2 of the Transitional Rules ("pharmaceuticals ... biological medicines, vaccines, sunscreens, weight loss products, vitamins, sport and athletic supplements, and homeopathic medicines"), namely Microlax Enema;
   • Item 12 (b) of Schedule 2 of the Transitional Rules ("diagnostic assessments and screening services"), namely Multistix Urine Test Strips which are used to diagnose urinary tract infections and, therefore, are used as part of a diagnostic assessment;
   • Item 3(a) of Schedule 2 of the Transitional Rules ("groceries, including food, beverage, cleaning household and health products"), namely wipes, zip lock bags, paper towels and toilet roll.
7. Taking account of the above observations, the Agency stated that it would fund the amount of $25,202.30 for the consumables recommended by Ms Lindsay and a further $ 2,887.85 for those dietary consumables recommended by Ms Haydon. This amount totalled $28,090.15.
8. Having considered both parties positions, I consider that the amount recommended by the Agency is reasonable.
9. I therefore approve funding of $28,090.15 for consumables.

Respondent's recommendations for additionally funded supports

1. Ms Fisher in her submission noted that the Agency considered that the following additional supports should be removed from FFNR's existing plan taking account of the evidence before the Tribunal:
   • Funding for a dietician.
   • Funding for a speech therapist.
2. I accept that submission as it relates to there no longer being a need for funding for a dietician, however as noted in paragraph 261 above, I have approved 20 hours of speech therapy for the purposes I have outlined therein.
3. I have approved the following:
   • An additional six hours per day for a second high intensity support worker.
   • The sum of $28,090.15 for consumables.
   • 20 hours of speech therapy.

1. Taking account of the Agency's recommendations, pursuant to sub 105(b) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal varies the decision under review made on 4 March 2023 such that, under section 33 of the National Disability Insurance Scheme Act 2013 (Cth), the statement of participant supports specifies:

(a) The reasonable and necessary supports that will be funded include the cost of:

• An additional six hours per day for a second high intensity support worker.
• The sum of $28,090.15 for consumables.
• 20 hours of speech therapy.

(b) The date by which the CEO must reassess the plan is 12 months after the date of this decision (reassessment date).

(c) All other reasonable and necessary supports in the statement of participant supports are to be funded on a pro-rata basis until the reassessment date.

The Tribunal varies the decision under review pursuant to subsection 105(b) of the Administrative Review Tribunal Act 2024 (Cth) as it relates to the support referred to in paragraph 264 of this decision.

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

[1] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) ('TD').

[3] National Disability Insurance Scheme Act 2013 (Cth), subsection 4(1).

[4] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; Madelaine and National Disability Insurance Agency [2019] AATA 4025.

[5] National Disability Insurance Agency, 'Operational Guidelines: Overview of the NDIS Operational Guideline' .

[6] G v Minister for Home Affairs [2019] FCAFC 79 [18].

[8] [2018] FCA 1229.

[31] Transcript 28.11.25 p328.1-3/23-26/39-41.

[37] Transcript 25.8.25 p96.17-19; p96.31-32