2. FWCS is primarily cared for by his mother, AM, who also experiences a range of health issues. On 12 April 2024, a delegate of the Agency's CEO affirmed an earlier decision to approve a new statement of participant supports (SPS) for FWCS. On 16 April 2024, the Applicant sought a review of this decision by the Tribunal. While the matter was before the Tribunal, the Agency approved further SPSs on 12 December 2024, 5 December 2025 and 12 December 2025. The Tribunal has jurisdiction to review the decisions to approve the original and subsequent SPSs in accordance with section 103 of the NDIS Act and section 12 of the ART Act.
3. A hearing was held by video on 10, 11 and 12 November 2025. FWCS did not attend the hearing. He was represented his mother, AM, and a disability advocate, Ms G Bye, from People with Disabilities Western Australia. The Agency was represented by a barrister, Ms J Flinn of Murray Chambers who was instructed by Ms M Sallehi from Moray & Agnew Lawyers. Both parties were provided with an opportunity to make written closing submissions. Final submissions were received on 23 December 2025.

1. The issues before the Tribunal are whether the following supports are reasonable and necessary to include in the Applicant's SPS for the purposes of sections 33 and 34 of the NDIS Act:

(a) Additional support worker hours for: > > > (i) 1:1 assistance with activities of daily living; > > > > (ii) 2:1 support worker assistance with community access; > > > > (iii) assistance with yard maintenance; > > (b) Additional therapy hours for; > > > (i) occupational therapy; > > > > (ii) physiotherapy; > > > > (iii) speech pathology; > > > > (iv) continence nursing; and > > > > (v) other professional supports. > > (c) Additional days for short-term respite; > > (d) Additional continence consumables; > > (e) A beach wheelchair; and > > (f) Level 3 transport funding.

1. The Tribunal was provided with a Joint Tender Bundle (JTB) by the parties, and this was accepted into evidence.[2] The JTB included:

(a) The T-documents;[3] > > (b) Reports from the following treating practitioners: > > > (i) Paediatrician (Dr RG); > > > > (ii) Physiotherapists (BP, RN, DM, and KE); > > > > (iii) Occupational therapists (MB, SS, JN, and CK); > > > > (iv) Neurodevelopment therapist and exercise physiologist (CT and DJ); > > > > (v) Speech pathologists (AB, KD, and KV); > > > > (vi) Dieticians (NS and AR); > > > > (vii) Orthotists (AT and MP); > > > > (viii) Behaviour support practitioner (SB); > > > > (ix) Continence nurse consultant (RD); > > (c) Letters from support workers, social worker (MD), and support coordinators (KP, DMc, and DB) > > (d) Statements from the Applicant's mother (AM); > > (e) Various quotes for consumables and assistive technology; > > (f) Videos of the Applicant; > > (g) Copies of the Applicant's NDIS plans; > > (h) Advice from the Agency's Technical Advice and Practice Improvement Branch (TAPIB); and > > (i) A report by an independent occupational therapist (BF).

(a) a Supplementary Tender Bundle (STB) provided 10 November 2025 containing: > > > (i) Various emails between the Agency and the Applicant's advocate; > > > > (ii) Further TAPIB advice; and > > > > (iii) Screenshots of various beach wheelchairs. > > (b) Photos showing the Applicant's yard and median area.

3. During the hearing, the Tribunal had the benefit of oral evidence from the Applicant's mother, occupational therapist (JN), physiotherapist (KE), support coordinator (DB) and an independent occupational therapist arranged by the Agency (BF).
4. Following the hearing I also accepted from the Applicant a schedule of supports. The need for this schedule was discussed at the hearing and was subject to a direction. I did not accept an additional schedule regarding AM's activities as this was additional evidence that had not been tested during the hearing.

OVERVIEW OF THE NDIS DECISION-MAKING FRAMEWORK[4]

1. Chapter 1, Part 2 of the NDIS Act sets the Act's objects and principles, including, for example, that reasonable and necessary supports should support people with disability to pursue their goals and maximise their independence,[5] the relationship between people with disability and their families and carers is to be recognised and respected,[6] and that decision-makers are to have regard to the need to ensure the financial sustainability of the scheme.[7]

1. With regards to children, section 5(f) also sets out:

if the person with disability is a child - the best interests of the child are paramount, and full consideration should be given to the need to: > > (i) protect the child from harm; and > > (ii) promote the child's development; and > > (iii) strengthen, preserve and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child.

2. Chapter 3, Part 2 of the NDIS Act deals with participants and their plans and includes further principles in relation to the preparation, variation, reassessment and replacement of plans. This guidance includes that the planning process should, so far as reasonably practicable, be directed by the participant,[8] and be underpinned by the right of the participant to exercise choice and control over his or her life.[9]
3. A participant's plan must include a statement of the participant's goals and aspirations,[10] as well as an SPS that includes the reasonable and necessary supports that will be funded by the Agency.[11] In deciding to approve an SPS, the Agency must have regard to the matters set out in section 33(5), including applying the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Support Rules), and be satisfied that each support meets the criteria in section 34. The criteria in section 34(1) are that:

(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 ... > > (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.

4. The phrase 'NDIS support' in section 34(1)(f) is defined in section 10 which further provides that rules may be made to declare whether a support is (or is not) an NDIS Support. The Minister has made the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Transitional Rules). The Transitional Rules specify supports that are an NDIS support unless otherwise provided (Schedule 1) as well as supports that are not NDIS supports (Schedule 2).
5. Section 7 of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (Miscellaneous Transitional Rules), also requires that a support is most appropriately funded or provided through the NDIS, and not more appropriately funded or provided through other general systems of service delivery or support services. This is equivalent to section 34(1)(f) as it was prior to the commencement of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No.1) Act 2024 (Back on Track Act).
6. NDIS Operational Guidelines also assist in making decisions in accordance with the NDIS Act. Operational guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[12] I will refer to these guidelines where relevant below.

Impairments which meet the disability requirements - section 34(1)(aa)

1. Section 34(1)(aa) of the NDIS Act was introduced by the Back on Track Act and requires that, for a support to be considered reasonable and necessary:

(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)

2. In addition to the summary provide by Dr RG above, FWCS' occupational therapist, MB, also reports that:

[FWCS] is primarily non-verbal however does use vocalisations to indicate and demonstrate when he is happy, sad, or excited. [FWCS] is currently trialling a LAMP device to assist in development of his independent communication. [FWCS] demonstrates autistic traits, as well as presenting with severe hypermobility and hypotonia. As a result of [FWCS'] diagnoses, he has had multiple surgeries in the past including two eye correction surgeries, fundoplication, peg insertion and removal, urethral reimplantation and hypospadias repair. [FWCS] has also previously fractured his left leg which resulted in a period of immobility. > > ... [FWCS] does have a hearing impairment and hearing aids however he does not tolerate wearing them. [FWCS] requires an amplification system in the classroom to ensure that he can hear the teachers' instructions.[13]

3. The Agency does not contend that any of the supports requested by the Applicant arise from impairments in relation to which FWCS does not meet the disability requirements. The Agency does contend that Applicant's need for assistance with gardening may relate to his mother's health concerns rather than FWCS' impairments. I will return to this issue later.
4. Having considered the information before me, I am satisfied that FWCS' disability is attributable to permanent intellectual, cognitive, neurological, sensory and physical impairments which result in a substantially reduced functional capacity for communication, social interaction, learning, mobility, self-care, and self-management. These impairments affect FWCS' capacity for social and economic participation and FWCS is likely to require NDIS supports for his lifetime.[14]

FWCS' goals and aspirations - section 34 (1)(a)

1. Section 34(1)(a) of the NDIS Act requires decision-makers to consider whether a support will assist a participant to pursue their goals and aspirations. I will return to this with regards to the specific supports requested below. FWCS' goals as set out in his most recent plan are to:

(a) Develop his communication skills so he can express his needs and wants effectively to others; > > (b) Increase his strength, mobility and endurance to assist across all areas of daily life; > > (c) Actively participate in community activities with his peers, and > > (d) Develop independence in completing daily activities at home, school and in the community.

Support request (a): additional support worker hours

1. The Applicant is seeking additional support worker assistance for:

(i) Activities of daily living at a 1:1 ratio, 24/7, with inactive overnight support; > > (ii) Community access at a 2:1 ratio for 2 hours per day on weekdays during the school term and on public holidays, and 5 hours per day on weekends; and > > (iii) Gardening and yard maintenance, for 3 hours per week.

Support request (a)(i): support worker assistance with activities of daily living

1. The Applicant is seeking 24/7 support worker assistance with activities of daily living, at a 1:1 ratio, with inactive overnight support. The Applicant relies on recommendations made in several reports, including from social worker (MD),[15] specialist support coordinator (DMc),[16] and occupational therapist (JN).[17] The Applicant also submits that the need for this level of support was confirmed by the independent OT (BF).[18]
2. In their closing submissions, the Agency advises that current plan, which commenced on 5 December 2025 and was updated on 12 December 2025, includes funding for:

(a) Assistance with self-care activities - standard 1:1 support; > > > (i) Weekday daytime - 4 hours per day for 252 days; > > > > (ii) Weekday evening - 4 hours per day for 252 days; > > > > (iii) Public holiday - 8 hours for 9 days (public holidays which fall on a weekday); > > > > (iv) Public holiday - 4 hours for 2 days (public holidays which fall on a weekend); > > > > (v) Saturday - 4 hours for 37 days; > > > > (vi) Sunday - 4 hours for 37 days; and > > > > (vii) Night-time sleep over - 5 nights per week.

The Agency acknowledges that the Applicant requires a high degree of 1:1 formal support with his activities of daily living while he is with his mother at home. In summary, the Agency submits that:

(a) The requests for formal supports during school hours is inconsistent; > > (b) The request does not take into account what is reasonable for families to provide; > > (c) There is no evidence with regards to the capacity of the Applicant's father to provide care; > > (d) The carer burnout risk for AM is reduced due to the hours that FWCS spends at school and the provision of short-term respite; > > (e) The current level of funding is reasonable and necessary.

With regards to the opinions relied on by the Applicant, I am not persuaded that these opinions support the need for 24/7 paid care at all times. For example, in her report MD states that:

[FWCS] requires 24/7 care including inactive overnight sleepover supports. [FWCSs] weekday daytime supports are slightly lower during the school term as he attends school consistently. However, it is essential that [FWCS'] time spent at home during school holidays is accounted for and that he is funded for minimum 1:1 support for all hours that he is at home. [FWCS] requires a support ratio of 1:1 for all in home supports and a ratio of 2:1 support for all community access. Please see below for breakdown of line items, hours of support provided, ratios of support required and rationale.[19]

The breakdown that MD then provides states that:

[FWCS] requires 4 hours of weekday daytime in-home support during the school term and 10 hours of weekday daytime in-home support during the school holidays. This level of support will ensure that [FWCS] is appropriately supported with all activities of daily living throughout his morning and afternoon routine. ... > > [FWCS] requires 2 hours of weekday evening support during the school term and during school holidays. This level of support will ensure that [FWCS] is appropriately supported with all activities of daily living throughout his evening routine. ... > > [FWCS] requires 2 hours of weekday night support during the school term and during school holidays. This level of support will ensure that [FWCS] is appropriately supported with all activities of daily living throughout his night and bedtime routine. ... > > [FWCS] requires a total of 11 hours of in-home support every Saturday. This level of support will ensure that [FWCS] is appropriately supported with all activities of daily living throughout his morning, evening and night routine. ... > > [FWCS] requires a total of 11 hours of support every Sunday. This level of support will ensure that [FWCS] is appropriately supported with all activities of daily living throughout his morning, evening and night routine. ... > > [FWCS] requires a total of 14 hours of support every Public Holiday. This level of support will ensure that [FWCS] is appropriately supported with all activities of daily living throughout his morning, evening and night routine. ... > > [FWCS] requires inactive, sleepover shifts every night of the year which is inclusive of up to 2-hours of active support. As outlined in [FWCS'] daily routine, he often wakes between the hours of 2am-4am and requires significant support to keep himself safe. Overnight wake periods are a high-risk time for behaviours of concern including property damage and faecal smearing. [FWCS'] overnight support needs are significantly higher than what would be typically expected for a parent of a 13-year-old child. As such, [FWCS] requires support from a trusted person every night, to alleviate burden on [AM].[20]

In my view, MD is appropriately distinguishing FWCS' support needs during school terms other times. MD is recommending 4 hours of weekday 1:1 daytime in-home support on school days. This distinction is also made in the recommendations of JN and DMc who both state:

It must be noted that [FWCS] requires support 24/7 for weekends, school holidays and term breaks, and public holidays due to not having the hours at school in which a support worker is not required.[21]

During his oral evidence BF was asked by counsel for the Agency, "Do you think that FWCS needs 1:1 support at all hours of the day, 24/7?" and BF responded:

I think he does but whether that's the role of an additional support worker or parent. There would have to be someone there whether it's support worker or parent.[22]

The schedule of supports provide by the Applicant after the hearing confirms that support workers are not required during school hours. The schedule of support does indicate that support workers would assist with house cleaning between 8:00am and 10:00am each morning, which is after FWCS has left for school on the school bus. Additionally, the schedule of support indicates that support workers would assist with house cleaning for a further two hours while FWCS is at school on each Tuesday and Thursday. The schedule also indicates that FWCS finishes school at 1:30 each Tuesday, Wednesday and Thursday to attend therapies. 9. Taken together, I consider that the evidence indicates that FWCS does not require 1:1 support worker assistance with his activities of daily living when he is at school or travelling to and from school. The evidence does support a finding that FWCS requires 1:1 assistance with his activities of daily living at all other times.

What is reasonable for FWCS' family to provide?

1. Section 34(1)(e) of the NDIS Act requires that decision-makers must be satisfied that:

(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

2. The Support Rules also need to be applied. Rule 3.4 provides that:

Reasonable family, carer and other support > > 3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters: > > (a) for a participant who is a child: > > (i) that it is normal for parents to provide substantial care and support for > > children; and > > (ii) whether, because of the child's disability, the child's care needs are > > substantially greater than those of other children of a similar age; and > > (iii) the extent of any risks to the wellbeing of the participant's family members > > or carer or carers; and > > (iv) whether the funding or provision of the support for a family would improve > > the child's capacity or future capacity, or would reduce any risk to the > > child's wellbeing; ... > > (c) for all participants - the desirability of supporting and developing the potential > > contributions of informal supports and networks within their communities.

Is the support something we would reasonably expect your informal supports, like family or friends, to provide? > > ... > > Most of us get some kind of help and support from friends and family. In our society, we expect that friends, family and our community will support each other and help each other out when they need it. > > A good example is families who have young children. In our community, we expect families will provide most of the support a young child needs. They will care for the child, make sure they're safe and drive them around places. > > Grandparents, uncles and aunties often have a role to play in supporting young children as well. Neighbours and friends might also help care for the child. > > As a child gets older, our society's expectations of the role of the family and community in caring for the child changes. For example, we expect schools to provide a child's learning needs. > > We also usually expect the role of family in providing personal care for a child would reduce as they get older and develop new skills and independence. But families are usually still responsible for things like food, emotional support, decision-making and providing a safe home. > > ... > > NDIS supports won't ever replace the support people like your friends and family provide to you. This support is given freely because people care and is often quite different to supports bought with NDIS funding. > > You have a special bond with your friends and family that's different from your relationship with paid carers. And there are potential risks and problems for you if your friends and families become your paid carers. > > We also must consider the benefits you may get from your informal supports. For example, your family and friends may be better at helping you meet other people, or helping to build your social skills, than paid supports. > > We consider if we can help these relationships so that you get the support you need. For example, we may be able to fund training for your informal supports, so they can help you build your skills. > > We also think about the capacity of your informal supports to continue caring for you, for example if they're ageing or sick. > > There are different things the law for the NDIS says we need to consider for adults and children. > > If you're under 18, we consider what support is reasonable to expect parents to provide at your age. It's normal for parents to provide substantial care and support for children. We consider that it's usual for parents to provide almost all the care and support that young children need. > > For example, it's reasonable to expect parents or other family members to provide transport to and from their child's after-school activities. Of course, the amount of care and support for a child without a disability would typically reduce as they get older. > > For children under 18, we consider: > > • if your needs are substantially greater because of your disability, compared to other children the same age. This means you need much more disability support > > • any risks to the wellbeing of people providing informal support to you > > • if including funding for the support will help build your skills and capacity in the future or reduce any risks to you. > > For example, we consider any health, safety or other impacts resulting from what's involved in meeting your disability support needs.[23]

4. It is not in dispute that FWCS' care needs are substantially greater than other 14-year-olds. The information before the Tribunal indicates that AM is experiencing carer burnout. FWCS' occupational therapist, JN, reports that:

The KCSS [Kingston Caregiver Stress Scale] was completed to gain an understanding of the impact that caring for [FWCS] and managing the broader social issues has had on [AM] due to concerns of caregiver burnout. [AM] scored as follows: > > Domain Score > > Care Factor 34/35 (two standard deviations above the mean - significant) > > Family Factor 10/10 (two standard deviations above the mean - significant) > > Financial Factor 5/5 (two standard deviations above the mean - significant) > > The scores reflect [AM's] extreme stress relating to care giving, managing familial conflicts, and managing financial difficulties relating to providing care for [FWCS]. Additionally, [AM] also reportedly has diagnoses of Fibromyalgia, Lyme Disease, Chronic Fatigue, Arthritis in her neck and sacrum, nerve pain in her leg(s), and mental health difficulties resulting from complex trauma and burnout. These collectively impact [AM's] capacity to meet the disability-specific needs of [FWCS], on top of the fundamental needs he has as a 12-year-old boy.[24]

5. I would note however, that this assessment was conducted in April 2024 and was made in the context of FWCS receiving less supports than are funded in his current plan. At that time JN reported that:

[DWCS] currently receives consistent support two days per week from two private support workers, [D] and [G]. [D] provides support on one day 4.30pm - 8.30pm and overnight on another day. [G] provides support from Friday 4.00pm - Saturday 4.00pm. This support work arrangement does not meet what [FWCS] needs as more hours of support need to be covered.[25]

6. During her oral evidence JN identified that, due to AM's degree of burnout, there were risks with regards to AM providing care to FWCS without support worker assistance, including with making sure FWCS' space is kept clean and that his medications are administered correctly. When I asked JN whether she considered that AM had residual capacity to safely provide unassisted care for FWCS (for example for 2 hours per day) JN responded:

.. the truth is, I don't know. All of the recommendations that I provided are solely on the basis of how a typically developing 12- to 13-year-old wouldn't require support for all of those ADLs which I listed, which he would be performing outside of school hours. ... > > But I also don't know how it would go if [AM], say, were to provide the two hours of support which you brought up as an example. And, you know - only 22-7 it was needed, because we haven't been through that. Realistically, I'm not sure how that would go functionally.[26]

7. I note that there is limited information before the Tribunal with regards to AM's health conditions. However, I accept that AM is experiencing significant carer burnout. There are risks to her wellbeing as well to FWCS' safety if FWCS is not able to access a substantial number of support worker hours. However, I do consider that some of the risks are reduced by the additional supports included in FWCS' current plan. I have some concern that FWCS receiving 24/7 paid support workers has the potential to negatively impact his bond with AM and increase his dependence on paid supports.[27] I am concerned that this might not be in FWCS' best interests.[28] I consider that retaining some degree of direct 1:1 care from AM develops the potential contribution of FWCS' informal supports.[29] In my view, it is reasonable to expect AM to provide two hours of 1:1 care for FWCS per day.
8. In reaching this conclusion, I have also considered what level of care is reasonable for the Applicant's father to provide. I do not accept the Agency's submission that:

The Tribunal cannot be satisfied on the evidence that the applicant's father is either unwilling or unable to continue to care for the applicant at least 4 nights a fortnight. This appears to be [AM's] choice, even if she believes she has good reasons to make that choice. It is not for the Agency, nor the Tribunal, to make an assessment of what are family law issues regarding parental responsibility and parent alienation.

9. I agree that there is no direct evidence before the Tribunal that the Applicant's father is prevented from caring for FWCS by a court order. However, there are several reports and other information that refer to concerns relating to care provided by FWCS' father. The first reference to these issues in the JTB appears to be correspondence between a specialist support coordinator, KP, and AM in September 2023 in which KP encourages AM to raise her concerns about FWCS' safety with the police or other family violence services.

1. In her April 2024 assessment, JN (occupational therapist) reported that:

[AM] and [FWCS'] father, [AF], are separated due to a complex history of reported abuse of which she is in the process of organising a Violence Restraining Order (VRO) for with support from a social worker. [AM] is seeing an abuse counsellor and is also undergoing several crucial processes relating to the family's finances and ownership of property. This has added an immense burden of responsibility onto [AM] on top of the consistent support and care for [FWCS] that she is required to uphold as his mother.[30]

2. In May 2024, DMc (specialist support coordinator) reported that:

[AM] has recently been granted an interim family violence [restraining order against AF]. [AM] and [AF] are separated due to a complex history of reported abuse and coercive control which [AM] is receiving support from a social worker and abuse counsellor. ... > > Challenges/Barriers & Mitigation Strategies > > - Instability of caring arrangements; Alleged 'counter-parenting' strategies being implemented by father [AF] to undermine and manipulate mother [AM]. Active domestic violence case with legal involvement presenting complexity for [FWCS'] supporting team. This was previously further complicated as [FWCS] is currently in his father's care while mother [AM] recovered from carer burnout. [AM] now has [FWCS] back in her care. [FWCS'] father is no longer involved in his care due to the family violence restraining order. > > -Inconsistent support; Father [AF] reportedly (from [AM] and therapists) not following therapist recommendations regarding assistive technology, therapy strategies, mealtime management etc. This has not been observed to place [FWCS] at risk but requires ongoing monitoring. [FWCS'] father is no longer involved in his care due to the family violence restraining order.[31]

Social Factors > > There is a highly complex and intersectional dynamic between all social factors including family and domestic violence, lack of informal supports and strained family dynamic, trauma, housing, parent health and mental health and [FWCS] as a child with complex medical, disability and behavioural support needs. > > [FWCS] has a complex family network and dynamic, including experiences of family violence and coercive control perpetrated by his dad towards his mum, [AM]. [AM] disclosed extensive experiences of domestic and family violence, including severe coercive control, across the span of the 30-year relationship with [FWCS'] dad. [AM] separated from [FWCS'] dad in 2022, however, has experienced ongoing abuse and control throughout legal and property disputes. As such, there is a currently active Violence Restraining Order in place that prevents [FWCS'] dad from contacting [AM], outside of discussions directly related to [FWCS'] care and support needs.[32]

4. In my view, there is sufficient secondary information before the Tribunal for me to accept that FWCS is presently in AM's sole care. With the background of alleged family violence, it sems to me that a cautious approach is in FWCS' best interests. I note that these are not newly raised issues. I consider that the Agency has had a reasonable opportunity to request further supporting information or make direct inquires with FWCS' father in order to clarify the current arrangements. I also note that the Agency's most recent TAPIB advice says:

It is considered reasonable and necessary to increase overnight inactive support from 4 to 7 nights per week to ensure continuity of care and safety across all nights the Applicant resides in the primary home. > > Whilst 4 nights were previously recommended in recognition of the Applicant's fortnightly stays with his father, the available evidence indicates that the Applicant's overnight support needs are consistent throughout the week.[33]

5. With respect to overnight supports, I also note that BF's oral evidence was that, if FWCS was no longer staying with his father for some nights per fortnight, that FWCS would require six nights per week of inactive overnight support. On balance, I consider that the evidence before the Tribunal is that FWCS' overnight support needs are consistent and that seven night per week of inactive overnight supports is reasonable and necessary. I do not consider that it is reasonable for AM to provide inactive overnight support. I will return the overall number of support workers hours required after considering the other request hours.

Support request (a)(ii): support worker assistance with community access

1. The Applicant seeks support worker assistance for community access at a 2:1 ratio for:
   • 2 hours per day on weekdays during the school term and on public holidays; and
   • 5 hours per day on weekends.
2. The Agency's advises that the Applicant current SPS now includes funding for support worker assistance for community access for:
   • 5 hours per week at a 2:1 ratio during the day on weekdays;
   • 4 hours per week at a 2:1 ratio on Saturdays; and,
   • 4 hours per week at a 1:1 ratio on Sundays.
3. The Applicant relies on AM's lived experience, the experience of FWCS' support workers, and the opinions of occupational therapists CK and JN, and behaviour support practitioner SB. CK reports that:

• Wandering is a significant risk, particularly when a support worker may be momentarily engaged in a care task or environmental demand. > > • Without 2:1 support, the only practical alternatives to manage these behaviours, such as physical restraint or environmental restriction, would likely be considered restrictive practices, which are not recommended and are inconsistent with a least-restrictive, person-centred approach.[34]

In order to successfully participate and maintain engagement with the community, [FWCS] requires increased Community Support Worker assistance in the form of 2:1 to implement Positive Behaviour Support strategies that will reduce the likelihood of [FWCS] wandering in the community, reduce the risks associated with his behaviours and maintain the dignity of those who access the community with him. > > Without this support, [FWCS] may place others and himself at risk of physical or psychological harm and have reduced access to the community, which will hinder his ability to achieve the above NDIS goals.[35]

The Applicant [may] require 2:1 support for supervision whilst he transported in the community in a private vehicle. He may also require 2 people to address toileting needs in the community. The Applicant's parents could assist a support worker complete these tasks if required during community access. The Applicant is 13 years of age. It would not be unreasonable that a parent provide some support accessing the community at this age.[36]

6. Based on the expert opinions, the Agency concedes that a 2:1 ratio of support is appropriate for community access. I also consider that a 2:1 ratio is necessary to reduce the risk of harm to FWCS and others during his community access. However, the Agency submits that:

The applicant's statement of participant supports now includes funding for formal support to access the community during the week for 5 hours a week at a ratio of 2:1 (or 10 hours at a ratio of 1:1). The Agency now contends that this level of funding meets the reasonable and necessary criteria, taking into account:

(a) it would be reasonable for a 14 year old child to be socialising independently with their peers after school; and

(b) there will be some weeks where the applicant goes swimming after school less than 3 times a week, and there will be some days where it is not possible to take the applicant to the park due to factors such as bad weather.

...

The Agency contends that [BF's] recommendation of funding for 4 hours of formal support on a Saturday at a ratio of 2:1, and 4 hours on a Sunday at a ratio of 1:1, meets the criteria of a reasonable and necessary support. This level of support, which is provided for in the applicant's current statement of participant supports:

(a) will assist the applicant undertake activities so at to facilitate his social participation; and

(b) is more likely to be effective and beneficial for the applicant, taking into account the likelihood of fatigue; and

(c) takes into account what is reasonable to expect families to provide, which includes that parents will accompany their children on social activities. The recommended level of support provides [AM] with additional support while she is participating in an activity with the applicant one day on the weekend, and also providing additional respite for [AM] on the other day, where the applicant can be supported to access the community by two support workers.[37]

1. The Applicant submits that, during his oral evidence, BF acknowledged that travel time may need to be considered. The Applicant's advocate asked BF, 'Do you see there being any clinical or substantial difference between four or five hours of formal support to access the community on a weekend?'. BF responded:

No, I think it gives satisfactory time. In my experience most people can undertake a decent amount of community engagement within between three and four hours. Of course there may be some travel component depending on where the person lives to incorporate in. I think once it starts to get longer than that, my concerns exist around fatigue for the participant, whether it's likely then to result in further dysregulation later in the day if you've worn the child out. But generally, I would consider three to four. Probably closer to four would be more realistic access - a decent time for community access.[38]

2. That Applicant submits that BF's opinion that 3 to 4 hours of community access is appropriate does not take into several factors including:

(a) Preparation time (toileting, dressing, equipment, regulation)

(b) Transport time

(c) Continence management including frequent accident management (requires 30 minutes per episode to clean, change and re-toilet)

(d) Meal support and hygiene whilst in the community. There is also an issue with safety with swallowing and avoiding choking risks. There is a large routine involved with toileting and hygiene and feeding and safe swallowing (up to an hour each time which means it must come out of his travelling/activity time)

(e) Post activity regulation and fatigue management to prevent escalation[39]

1. The Agency submits that, in her oral evidence, JN agreed that fatigue would be an issue for FWCS. The Agency asked JN, 'Do you see there [CK's] given an opinion that FWCS's likely to fatigue quickly due to reduced muscle strength and low muscle tone, particularly after engaging in fun activities which often take place in a community environment. Do you agree with that?'. JN responded:

I do agree with that, yes. FWCS is very hypotonic, and he would fatigue very quickly should he not be supported well.[40]

2. I note that, the part of CK's report that JN was taken to (page 457 of the JTB) is in support of FWCS requiring 2:1 support worker assistance. In context, this reference to fatigue is with regards to increased risk of falls when fatigued. I do not consider this risk of falls would be present during transport to and from and activity. I also note that JN's oral evidence above includes the caveat that this fatigue would be present if FWCS 'was not supported well'. I do not consider this evidence demonstrates that JN agreed with BF's opinion that more than four hours of community access would not be reasonable due to fatigue. I also consider that BF was open to factoring in additional hours for travel. The information before the Tribunal indicates that the weekend community access activities for FWCS do involve more than an hour of travel. On balance, considering travel and preparation time, I consider that 5 hours for community access on the weekends is required.
3. I also do not accept the Agency's submission factors such as bad weather should reduce the calculation of community access hours. I consider that it reasonable to assume to support workers will arrange weather appropriate alternative activities as needed.
4. However, the schedule of support provided by the Applicant does not indicate that two hours of community participation is required each weekday during school terms. This schedule indicates that two hours of community access is proposed after school on Monday and Friday. As indicated above, FWCS finishes school at 1:30 each Tuesday, Wednesday and Thursday to attend therapies. On Tuesday, it is proposed that FWCS receive 1.5 hours of 2:1 community access support. On Wednesday and Thursday, it is proposed that FWCS received 1 hour of 2:1 community access support. Based on the Applicant's schedule, 7.5 hours per week of 2:1 community access support is proposed, rather than the 10 hours per week requested in the Applicant's submissions. This also means that the Applicant's current SPS, which includes 5 hours per week at a 2:1 ratio during the day on weekdays, is 2.5 hours per week less that what is outlined in the Applicant's proposed schedule of supports.
5. There was no specific evidence provided to me about the typical time commitment per week for a parent of a 14-year-old without FWCS' disability for community activities. I expect it would be quite common for the time a parent spends transporting and accompanying a 14-year-old to sporting, recreation or other community activities to equate to 7.5 hours per week. I note that, during his oral evidence, BF acknowledged that AM may need additional 2:1 support on Sundays if FWCS' father was not assisting on some weekends.[41]
6. I also note that the schedule of proposed supports already indicates that AM transports FWCS to therapy appointments on Tuesday, Wednesday, and Thursday. This travel time is 5 hours in total. The evidence before the Tribunal is that safely transporting FWCS in a car requires two people. Behaviour support practitioner, SB, identifies risks such as FWCS throwing his shoes while been driven.[42] BF agrees that 2:1 supervision is required for transport in a private vehicle.[43] With additional 1:1 support worker hours, I expect that a support worker will need to accompany AM and FWCS for this travel and therapy. For AM, this is a significant additional time commitment and is beyond what would be required for a teenager without FWCS' disability.
7. On balance, I consider it would be reasonable to expect FWCS' family to assist in the role of a second support worker for 2.5 hours of community access per week on a weekday. Taking in account what is reasonable for families to provide,[44] I am not satisfied that FWCS requires more than the currently funded 5 hours per week per week of support worker assistance for community access at a 2:1 ratio on weekdays. I am however satisfied that the community access hours on the weekend should be increased from 4 to 5 hours at a 2:1 ratio on Saturdays and Sundays.

Support request (a)(iii): assistance with yard maintenance

1. The Applicant is seeking three hours per week of support worker assistance for gardening and yard maintenance. In summary, the Applicant submits that this is necessary because:

(a) It will reduce the risk of FWCS being harmed by falls; > > (b) AM is unable to undertake these tasks; > > (c) A teenager without FWCS disability would often assist with these tasks; and > > (d) FWCS' needs for a safe environment are higher due to his disability.

2. In summary, the Agency submits that this support is not necessary as:

(a) NDIS funding is concerned with the Applicant's impairments, rather than AM's; > > (b) Additional supports for FWCS will allow AM additional time to complete household task; > > (c) A teenager without FWCS impairment would not be expected to complete these tasks; > > (d) Three hours per week is excessive and does not represent value for money; and > > (e) The behaviour support practitioner has approved restricting access to the yard areas without direct supervision.

3. I have considered the submissions of the parties and the information before the Tribunal, including the pictures provided of the Applicant's yard and median areas. On balance, I am not satisfied that three hours per week for gardening and yard maintenance is a reasonable and necessary support to be included in the FWCS' SPS. The Applicant's yard is not particularly large, and some areas are paved or have artificial grass. I do not consider that three hours per week would be required to maintain a safe environment. I agree that a tidy up is required and that this may need to be done from time-to-time. I note that FWCS will have additional support worker hours and support coordination in his update plan. The support worker hours can be used flexibly. In my view, there will be sufficient hours for occasional yard maintenance within FWCS' SPS.

1. Having considered all of the information before the Tribunal, I find that the support worker hours in the Applicant's SPS should be increased to allow sufficient funding for:

(a) Assistance with self-care activities at 1:1 ratio: > > > (i) During school term, weekday daytime rate, for 32.5 hours per week; > > > > (ii) During school holidays, weekday daytime rate, for 65 hours per week; > > > > (iii) For public holidays which fall on a weekday, 14 hours for 9 days per year; > > > > (iv) For public holidays which fall on a weekend, 14 hours for 2 days per year; > > > > (v) Saturdays, 9 hours for 37 days per year; > > > > (vi) Sundays, 9 hours for 37 days per year, and > > > > (vii) Night-time sleep over, 7 nights per week. > > (b) Assistance with community, social and economic participation at a 2:1 ratio: > > (viii) Weekday daytime rate, for 5 hours per week; > > (ix) Saturday rate, for 5 hours per week; and > > > (x) Sunday rate, for 5 hours per week. > > (c) Assistance with personal and domestic activities - 4 hours per week.

2. This level of support worker assistance is necessary to address needs arising from impairments in relation to which FWCS meets the disability requirements.[45] This will support his goal of participating in community activities and improving his ability to complete daily activities at home.[46] This in turn will improve his social participation.[47] Support worker assistance is effective and beneficial as supported by evidence of good practice from appropriately qualified allied health practitioners.[48] The support workers are value for money relative to the benefits achieved.[49] I am not satisfied that there are alternatives that would achieve the same outcome at a substantially lower cost.[50]
3. I consider that it is reasonable for AM to continue to provide informal support:

(a) With activities of daily living, without assistance from a support worker, for two hours each evening. This removes the need for funding at the evening rate prior to the start of the sleepover support; > > (b) To continue to provide transport for FWCS to attend therapies, accompanied by a support worker; and > > (c) To assist with community access, accompanied by a support worker for 2.5 hours per week on weekdays.[51]

4. I consider that it is in FWCS' best-interests as a child to have both a high level of formal supports while also spending time with his family. This balance is achieved by some community outings being with a support worker and his mother, and also by his mother providing some 1:1 support in the home on a daily basis.[52]
5. Support worker assistance are NDIS supports under items 14, 23 and 27 of Schedule 1 of the Transitional Rules. They are not excluded under schedule 2 of the Transitional Rules.[53] Support worker services are most appropriately funded under the NDIS as they relate directly to the Applicant's disability needs and are not more appropriately provided under another system of support.[54]

Support request (b): additional therapy hours

1. The Applicant seeks the following capacity building supports:

• 50 hours per year for direct work with FWCS on his occupational therapy related goals;
  • 10 hours per year for complex home modification assessments;
  • 30 hours per year for block therapy (intensive program);

(ii) Speech Pathology ‑- 52 hours per year; > > (iii) Physiotherapy - 108 hours per year;

• 52 hours per year for weekly clinic-based sessions;
  • 26 hours per year for fortnightly school term and hydrotherapy sessions;
  • 30 hours per year for physio block therapy (intensive program);

(iv) Dietician - 10 hours per year; > > (v) Continence Nursing ‑- 10 hours per year; > > (vi) Other Professional (Social Work or Podiatry) - 12 hours per year; and > > (vii) Positive Behaviour Support - 90hrs per year.

2. The Agency outlines that the Applicant's most recent SPS includes funding for the following capacity building supports:
   • Behaviour supports - 90 hours per year (no longer in issue);
   • Occupational therapy - 50 hours per year;
   • Speech therapy - 40 hours per year;
   • Physiotherapy - 60 hours per year;
   • Podiatrist - 6 hours per year;
   • Other professional - 10 hours per year;
   • Continence nurse - 3 hours per year;
   • Dietitian - 10 hours per year (no longer in issue); and
   • Support coordination (level 3) - 100 hours per year.

1. The Applicant relies of the reports of occupational therapists CK, JN and MB, and social worker MD. CK recommends fortnightly, in-home occupational therapy sessions. The funding requested includes travel time and costs, report writing, meetings, and resource creation.[55] JN recommends the following:

1. Occupational Therapy (40hrs) - Community, to improve [FWCS'] functional capacity in: > > a. Self-care skills (toileting, dressing, sleep) > > b. Sensory Interventions for mealtimes and other settings > > c. Assistive Technology assessment and prescription (Power-assisted Device for Manual Wheelchair, toileting and showering aids) > > 2. Occupational Therapy (Beach wheelchair-specific), to improve [FWCS'] mobility over sand in a meaningful context for the family. Hours required as recommended in the relevant OT report. > > 3. Occupational Therapy - Intensive Program, to improve [FWCS'] personal mobility skills and gross-motor functioning. Hours required as recommended in the relevant OT report. > > 4. Occupational Therapy - Complex Home Modifications, to improve access to [FWCS'] bathroom and toilet for [FWCS] and the supports that he receives. Hours required as recommended in the relevant OT report. > > 5. Building Works Project Management - to liaise with the CHM OT and builders to carry out and monitor the building process. Hours required as recommended in the relevant OT report.[56]

2. The intensive occupational therapy blocks are combined with physiotherapy and recommended by MB, RN and KE.[57] The Applicant also relies on the oral evidence of JN who supported the combination of regular in-home and intensive therapy blocks, saying that:

So the intensive therapy then would be working through a bottom-up approach of addressing the impairment specifically and trying to improve the impairment. So, say for example trying to improve his fine motor skills at the fine motor skill level. So how the fingers are actually moving and how he uses his hands and his wrists and how he carries and transports different objects. Whereas the community-based therapy so kind of the ongoing therapy that [CK] would provide would be context dependent so a top-down approach looking at the different activities within the different settings that FWCS does them in and trying to specifically build the skills in a task-specific way. So for example how he's holding the shower handle while he's showering as opposed to how [LB] would do it within their intensive therapy blocks. > > ... should he not actively engage in all the different skills that he's trying to build he would likely regress because he wouldn't be able to ... actively work on them out of his own volition. > > ... the nature of his impairment is quite complex and so there's tremendous benefit to doing it in an intensive way, again to harness neuroplasticity but in leaving that carryover outside of the intensive therapy blocks in regular community-based settings.[58]

3. I note that the schedule of supports provided by the Applicant states that the intensive blocks involve one hour with an occupational therapist (and one with a physiotherapist) for 5 days per week, 3 times per year. This would be 15 hours per year for intensive blocks of occupational therapy, rather than 30 hours as requested. This is inconsistent with the quote provided by LB at page 302 of the JTB. This quote states that it is for '3 x 10-day intensive blocks' of occupational therapy. This is in addition to 30 hours for intensive blocks of physiotherapy. I will base my consideration on the recommended number of hours.
4. These intensive blocks are separate from the fortnightly, in-home occupational therapy session recommend by CK. I would however expect that the fortnightly occupational therapy would not occur at the same time as the intensive therapy.
5. The Agency relies on the opinion of BF. BF agrees that fortnightly, in-home occupational therapy sessions would be beneficial for FWCS, however his opinion was also that:

I expect the intensive program requested may assist the Applicant make quicker gains in his selfcare abilities. I am not convinced however that these intensive sessions would achieve a substantially better long term outcome in the Applicant's functional abilities compared to a well run program consisting of fortnightly occupational therapy with daily support worker assistance. > > Some Applicants may benefit from intermittent intensive therapy provision and it may be appropriate that this is a process undertaken for the Applicant. I would support either fortnightly occupational therapy 1:1 support OR intensive program but not both supports.[59]

6. The Agency also relies on the oral evidence of JN and submits that:

[JN's] evidence was that the applicant was able to achieve functional gains from the 15 sessions of occupational therapy that [JN] provided over a period of 12 months. A barrier to the applicant achieving his therapy goals was not the number of therapy sessions attended, but rather the turnover in support worker staff.[60]

7. In my view, this submission somewhat overstates what JN's evidence was. With regards to the 15 sessions that JN provided to FWCS, JN said that:

He was making some gains however it was made a bit difficult because there was some turnover of support worker staff and so we couldn't maintain, I suppose, adequate trajectory of improvement because there were periods in which progress remained stagnant while some different support workers were familiarising themselves with FWCS. But then as this happened, you know, he continued to improve. But he didn't achieve full independence with any of those goals, as I wouldn't expect him to because they take a much longer time than that.

8. Overall, I took from JN's evidence that regular in-home occupational therapy sessions were likely to be beneficial if they could be provided over an extended period with regular practice being supported by a stabile support worker team. I also understood JN to be saying that the combination on intensive blocks with in-home sessions and regular skills practice with support workers was most likely to achieve and consolidate functional gains.

1. With regards to clinic based and intensive physiotherapy, the Applicant relies on the reports provides by RN, BP and KE of LB therapies.[61] With regard to fortnightly in-school physiotherapy, the Applicant also relies on the report of DM,[62] as well as the report of JN.[63]
2. In addition to the oral evidence of JN above, the Applicant also relies on the oral evidence of physiotherapist KE, who said that:

FWCS responded very well to both weekly therapy and intensive therapy blocks. For FWCS and his complex needs and conditions, weekly therapy is necessary to help maintain and improve his functionality as we go. ... So physiotherapy weekly will help FWCS promote and encourage his independence in activities of daily living and participation in the community. Due to FWCS's complex nature, without weekly therapy, he is at increased risk of significant deterioration in his physical capacity which will then hinder his participation in activities of daily living and achievement of his goals in the future. Due to his condition and many of the impairments that he has, regular therapy and physiotherapy is necessary to maintain FWCS's current physical capabilities. > > And without the following, FWCS is at a higher likelihood of further secondary complications such as falls, contractures, musculoskeletal deformities and then a premature loss of ambulation. As a result of either of those occurring, there is a higher long-term cost that will be associated with his care, including equipment, prescription, surgical intervention and an increased need for other therapy hours. > > Now, weekly therapy for FWCS, given his condition, it provides him input - consistent input and motor learning support through repetition, task-specific practice as well as hands-on facilitation to help maintain and improve his gross motor skills. Specifically, lately we've been working to build on his walking endurance, for community ambulation, stair climbing, balance, all of which are essential for FWCS to be independent and safe within the community. > > Now, the difference between weekly therapy and intensive therapy is an intensive therapy block, as requested, allows for focused skill integration and activity development for the neuroplasticity driven gains. Now, there's plenty of research and evidence out there which highlight that children with complex needs such as FWCS need intensive therapy blocks to help build and reaffirm these skills.[64]

3. The Agency relies on the opinion of BF. During his oral evidence, BF clarified his opinion to be that intensive blocks may be more beneficial than weekly sessions saying:

... my preference would be for intensive blocks as, you know, daily for a number of you know two weeks perhaps. So ten sessions in a row over the Monday to Friday as opposed to fortnightly. I just find that's more targeted. You address errors. There's less risk of miscommunication. The strategy seems to be achieved - not just myself - it seems to achieve good results in the hospital system. > > ... research is showing that it should be short, sharp interventions. It's not the role of the therapist to become part of the life of the weekly setting or fortnightly setting. I think that the therapists themselves are at risk of, you know, burnout. They need downtime across the course of a year as well and that's typically why I'm not - I'm reluctant to pursue the weekly, fortnightly, 52 weeks in a year protocol. For one it doesn't make practical sense to me whenever I've managed occupational therapists or in my own practice to schedule a weekly or a fortnightly ongoing session. It aids the burnout of the therapist and burnout of the applicant, from my experience.[65]

4. I would note here that I found the written report of RN and BP particularly helpful in identifying the specific physiotherapy goals and measurement of progress towards these goals. KE was also able to provide several practical examples of how the intensive and regular physiotherapy worked together to achieve functional gains for FCWS. As with occupational therapy above, I do not consider that the weekly physiotherapy would be required while the intensive therapy blocks were being delivered.
5. I found that the information provided by DM with regards to fortnightly in-school physiotherapy to be comparably less comprehensive. I also note that the oral evidence from support coordinator, DB, was that physiotherapy hours were increased temporarily while speech pathology was unavailable.[66] In my view, it is reasonable to infer that, when speech pathology recommences, physiotherapy hours can be reduced.

1. The Applicant relies on the opinion of JN,[67] speech pathologists AB, KD, and KV, and social worker MD.[68] The information before the Tribunal with regards to speech pathology is more limited and not as up to date as compared to occupational therapy and physiotherapy.
2. The dysphagia and mealtime management plan prepared by AB was completed in September 2023. The plan does not include recommendations for regular speech pathology services, other than indicating that the plan should be reviewed in 12 months.
3. The report prepared by KD in October 2023 says that monthly, in-clinic, one-hour sessions were being provided at that time. KD recommended that this be increased to 80 hours per year comprising:
   • Weekly 1 hour, 1:1, session at clinic, home or school - 50 hours;
   • Annual eating, drinking an swallowing review - 5 hours;
   • Non face-to-face support (reports, liaison, programming) 15 hours; and
   • Travel - 10 hours.[69]

1. The rationale for KD's recommendations were that therapy would:

• Train [FWCS'] communication partners to support his communication, social interaction and learning in all environments. > > • Support [FWCS'] communication development through 1:1 therapy. > > • Complete AAC [Augmentative and Alternative Communication] programming and maintenance. > > • Complete relevant support letters and applications as required. > > • Work jointly with other professionals. > > • Complete an eating and drinking assessment and provide recommendations. > > • Provide information, programs and reports as requested from family and NDIS.

2. In May 2024, JN recommended speech pathology to 'continue supporting [FWCS'] mealtime management and communication skills through AAC. Hours required as recommended in the relevant SP report.'
3. The letter from KV, refers to FWCS being seen for a follow-up review in an outpatient clinic on 17 October 2024 and indicates that he did not, at that time, have a regular speech pathologist.[70]
4. I also note that the oral evidence of support coordinator, DB, was that FWCS had not been able to access speech pathology services for some time as there was a lack of paediatric providers in FWCS' area and that most had wait time of six to twelve months. DB advised that a speech pathologist had been recently engaged.
5. The Agency relies on the report of BF who states:

The Applicant has substantial communication challenges. He ... requires significant support to develop his verbal communication skills to support all aspects of his development. He has been provided with a communication aide but is yet to adequately acquire the skills to use the device effectively. > > The Applicant has also been diagnosed with dysphagia impeding his ability to chew and swallow efficiently. He requires a modified diet and slightly thickened fluids as a result of his dysphagia. > > I would be supportive of weekly speech therapy 1:1 support for 40 weeks a year (total 40 hours direct support) to assist FWCS improve his communication abilities and address challenges from his dysphagia.

6. BF maintained this opinion during his oral evidence but did not otherwise elaborate on how he arrived at this conclusion.[71]

1. The Applicant relies on the report of continence nurse consultant, RD, completed in March 2025, in which RD recommends:

To continue with monthly continence 60-minute sessions via teletherapy with Continence Clinician > > During these sessions, current toileting issues can be addressed and actioned > > Home, school or community visits as required including up to 30 minutes travel each way as per NDIS billing rules > > Phone calls and emails as required to support interventions and reduce travel cost where possible. > > Reporting as per NDIS requirements Recommendations for products and equipment related to [FWCS'] continence goals > > Resource development as required > > Liaison with key stakeholders[72]

2. I note that JN's recommendations regarding continence supports were for:

Continence Nursing Assessment (4 hours) - for recommendation of suitable continence products for [FWCS]. > > Continence Specialist Support (25 hours) - to assess and inform recommendations regarding [FWCS'] toileting regime and requirements as he continues to change in his diet and grow. This support is to work in partnership with OT services at home to improve [FWCS'] independence with toileting.[73]

3. BF was not asked to provide an opinion on continence supports. I note that the Agency's TAPIB recommended increasing continence nurse consultant supports to six hours per year.[74] The Agency maintains that three hours per year remains sufficient but does not otherwise provide a basis for this conclusion.

Support request (b)(v): other professional supports

1. The Applicant relies on the opinion of JN and MD with regards to seeking 12 hours per year to be used flexibly for other allied health service such as social work or podiatry. I was not able to locate a recommendation from JN with regards to social work. With regards to podiatry, JN recommended:

Podiatry (10 hours) - to liaise with PT services for [FWCS] Ankle and Foot Orthoses (AFOs) to support his mobility and independence.[75]

2. In her July 2025 report, MD (social worker) recommends 12 hours per year for other professional supports:

To be utilized flexibly for [FWCS] to engage with relevant and appropriate allied health supports such as Podiatry or Social Work. It is recommended that this support be written flexibly in [FWCS'] plan, to allow choice and control over which professionals he engages with dependent upon his circumstances and evolving needs over the plan period.[76]

3. MD does not otherwise elaborate on the basis for these recommended hours. I note the Applicant's most recent plan includes six hours for podiatry and ten hours for other professionals.
4. BF was not asked to provide an opinion on other professional supports. TAPIB recommended including six hours of funding for podiatry. The Agency maintains that the current level of funding is sufficient but does not otherwise provide a basis for this conclusion.

Weight of evidence and procedural fairness concerns

1. Both parties made submissions regarding the weight that should be given to the other party's experts. In summary, the Applicant submitted that the evidence of BF and TAPIB should be given less weight as these reports were:
   • not based on any direct observation of FWCS;
   • did not include any assessment instruments;
   • did not provide clinical reasoning for differing from the Applicant's treating practitioners; and
   • the experts did not have the relevant experience with FWCS' disability.
2. In summary the Agency submitted that:
   • BF was denied an opportunity to conduct an in-person assessment by AM;
   • Not accepting BF's evidence would encourage applicants to refuse in-person assessments;
   • BF has considerable experience as an OT including in assessing children with similar impairments to FWCS;
   • The evidence of FWCS' treating practitioners should be given less weight as:
     • supportive reports preserve their ongoing clinical relationship with a participant;
     • they do not have the experience required to provide expert evidence;
     • there is a financial interest in treatment being funded by the NDIS; and
     • the Applicant's experts were provided with written questions ahead of their oral evidence.
3. With regards to this last point above, the Applicant submitted that:

... no individual expert witness was coached by the Applicant. Sample questions were provided solely to assist witnesses to prepare for the hearing by understanding the possible lines of questioning that may be pursued by both the Agency and the Applicant. No responses were rehearsed, surveyed, suggested, or pre-prepared by the Applicant or her advocate. > > Sample questions provided to the witnesses included questions about occupation, qualification, accreditation and length of service working with [FWCS]. Any preparation undertaken was limited to permissible and routine matters, including reviewing relevant facts, past documents and an exchange of documents between experts related to [FWCS'] needs, and the witness's own prior letters of support or reports. > > Witnesses were also advised to seek clarification where a question was not understood before responding.[77]

4. During the oral evidence of the Applicants' treating practitioners, it was clear that they had prepared responses to written questions provided by the Applicant's advocate. However, each expert also confirmed that they had not discussed their answers with the Applicant's advocate. This does seem to me to go beyond what I would expect with regards to witness preparation. At the same time, I do not consider that the Applicant's advocate has overstepped to the extent that they have influenced the experts' responses, or that the experts provided input into the formulation of questions to be posed.[78] While this does detract somewhat from the weight I have given to this oral evidence, I do not consider that the Agency was denied procedural fairness. The Agency briefed experienced counsel who was able to test the opinions of the experts through oral questioning under an oath or affirmation.
5. Overall, I still found this oral evidence of the Applicant's experts helpful in clarifying some aspect of the written reports. I was satisfied that the opinions provided were genuinely held and were based on what was considered to provide the best outcomes for FWCS. I also consider that having direct therapeutic experience with FWCS strengthens the basis on which an opinion is formed and that this is a form of expertise which should be given weight before the Tribunal.
6. I found the evidence of BF helpful and accept that he has relevant expertise on which to provide this opinion. I do consider that this report having been made 'on-the-papers' also diminishes the weight that I give BF's evidence to a degree. I do not accept that the Agency is denied procedural fairness by AM refusing to allow BF to conduct an in-person assessment with FWCS. This is because I consider that the Agency has had a reasonably opportunity to present their case by BF conducting an 'on-the-papers' assessment and providing oral evidence at a hearing.[79] While I acknowledge the Agency's concerns regarding applicants potentially benefiting from refusing independent assessments, I also note that the Agency has powers under section 36 of the NDIS Act to request a participant undergo an assessment. Failing to comply with such a request can result in supports being suspended.
7. I also note that the Agency does not seek to rely on the TAPIB advice as expert evidence.

... it is proposed the applicant undertake a total of 568 hours of therapy per year (including school terms and school holidays combined). That amount of therapy is neither reasonable, nor necessary. > > As a 14 year old boy, the applicant needs sufficient time for recreation and relaxation during school terms and during school holidays, like any other child his age. The proposed schedule does not achieve that. According to the schedule, for the vast majority of the time that the applicant is not at school or asleep, he is outside of the home attending therapy, hospital appointments, or accessing the community. There is little rest and play time at home for the applicant in the schedule, which is required, given the applicant's tendency for fatigue when engaging in community activities,5which then leads to emotional dysregulation and behavioural issues. > > The amount of therapy proposed would also unreasonably result in the applicant not attending his usual educational classes at school for approximately 5.5 hours a week.[80]

2. In summary, the Applicant submits that:
   • Not all funded therapy is delivered directly to FWCS as some hours are delivered as education and training to AM and FWCS' support workers;
   • The proposed therapies include 4.5 hours per week of direct therapy and 5.5 hours putting the skills into practice with AM or support workers;
   • The proposed schedule of supports requires FWCS to leave school early at 1:30 pm, 3 days a week;
   • FWCS is not able to independently engage in social activities with peers; and
   • This level of therapy is required ensure progress and avoid regression.[81]
3. I am not persuaded by the Agency's submissions regarding FWCS missing school. If the Agency is seeking to satisfy the Tribunal that FWCS' school attendance is unsatisfactory, the Agency has had a reasonable opportunity to request further information from the school. In my experience, for children with complex disabilities such as FWCS, it is a fairly common practice for therapies to be completed during school hours, whether at school or offsite. The Agency pointing to a general school attendance policy is not persuasive.
4. I accept the Applicant's submissions that a substantial number of therapy hours are not provided on a 1:1 basis with FWCS. Considering the schedule of supports provided, I accept that a number of the hours identified by the Agency are not therapy hours but are instead support worker hours in which therapy skills are practiced by integrating these into FWCS' activities of daily living.

Conclusions regarding additional therapy hours

1. Having considered all of the information before me, I have reached the following conclusions regarding the additional therapy hours requested by the Applicant.

1. I am satisfied that it is reasonable and necessary to allow for 30 hours for intensive blocks of occupational therapy. It is also reasonable and necessary for fortnightly occupational therapy to continue at FWCS' home or school. I am persuaded that the combination of intensive and regular occupational therapy is more effective and beneficial and reduces the risk of regression though the application of skills in everyday environments.
2. However, I do not consider that 26 community-based occupational therapy sessions are required in addition to the intensive blocks, as well as 6 hours for reporting and resource creation. I do not consider that it is necessary for weekly occupational therapy to continue during the intensive blocks. I am not satisfied that additional hours are required for further assessments for the beach wheelchair and home modifications are required. These reports have already been funded and provided. However, therapist travel time does have to be accounted for.
3. On balance, I consider that funding of $7,500 per year for regular community-based occupational therapy is reasonably and necessary. This equates to approximately 38 hours based on CK's quoted costs for therapy, travel time, and to allow for 4 hours for report writing and resource creation. In combination with the intensive blocks of occupational therapy, I consider that 68 hours per year for occupational therapy is reasonable and necessary.
4. Funding for 68 hours for occupational therapy per year is necessary to address needs arising from impairments in relation to which FWCS meets the disability requirements.[82] This therapy will support his goals of participating in the community and developing his independence with activities of daily living.[83] Occupational therapy contributes to FWCS' capacity for social participation.[84] Occupational therapy is effective and beneficial as supported by evidence of good practice from appropriately qualified allied health practitioners.[85] This level of occupational therapy represents value for money relative to the benefits achieved.[86] I am not satisfied that there are alternatives that would achieve the same outcome at a substantially lower cost.[87] I do not consider that it is reasonable for occupational therapy to be provided by FWCS' informal supports.[88] Occupational therapy is a NDIS support, being a disability-related health support under item 16 of Schedule 1 of the Transitional Rules. Occupational therapy is not excluded under schedule 2 of the Transitional Rules.[89] Occupational therapy is most appropriately funded under the NDIS as it relates directly to the Applicant's disability needs and is not more appropriately provided under another system of support.[90] Occupational therapy is in FWCS' best interests.[91]

1. I am also satisfied that for 30 hours for intensive blocks of physiotherapy are reasonable and necessary. I also consider that the weekly in-clinic physiotherapy in combination with the intensive blocks has been demonstrated to be effective and beneficial. However, I do not consider that these weekly sessions should be provided during the intensive blocks. The quote from LB at page 302 of the JTB equates to 38 hours of non-intensive, in-clinic physiotherapy session per year. In my view this is appropriate. In total, I consider that 68 hours per year for regular physiotherapy and intensive blocks is reasonable and necessary.
2. I am not satisfied that fortnightly in-school physiotherapy is also reasonable and necessary. I do not consider that there is sufficient information to demonstrate that these sessions are effective and beneficial in addition to the intensive and weekly in-clinic sessions. I also consider that additional physiotherapy temporarily replaced in-school speech pathology. When this speech pathology recommences, I consider that the in-school physiotherapy can be reduced.
3. Funding for 68 hours for physiotherapy per year is necessary to address needs arising from impairments in relation to which FWCS meets the disability requirements.[92] This therapy will support his goals of participating in the community and developing his independence with activities of daily living.[93] Physiotherapy contributes to FWCS' capacity for social participation.[94] Physiotherapy is effective and beneficial as supported by evidence of good practice from appropriately qualified allied health practitioners.[95] This level of physiotherapy represents value for money relative to the benefits achieved.[96] I am not satisfied that there are alternatives that would achieve the same outcome at a substantially lower cost.[97] I do not consider that it is reasonable for physiotherapy to be provided by FWCS' informal supports.[98] Physiotherapy is a NDIS support, being a disability-related health support under item 16 of Schedule 1 of the Transitional Rules. It is not excluded under schedule 2 of the Transitional Rules.[99] Physiotherapy is most appropriately funded under the NDIS as it relates directly to the Applicant's disability needs and is not more appropriately provided under another system of support.[100] This level of therapy is in FWCS' best interests.[101]

1. I am not satisfied that more than 40 hours of speech pathology is required. FWCS has not been engaged with a regular speech pathologist for some time. It is sensible for FWCS' specific speech pathology needs to be assessed after a period of treatment. If the recently engaged speech pathologist assesses that FWCS requires additional hours, this request can be made after as part of the therapist's progress reporting.

1. I do not accept an additional 2 hours are required for other professional or allied health services. The Applicant submits that this would be required to cover social work or podiatry, as examples. The current plan includes 10 hours for other professionals and 6 hours for podiatry. This provides 16 hours for podiatry and other professionals. I am not satisfied that more is required.

1. I accept that 10 hours for continence nursing per year is reasonable and necessary. The information before the Tribunal does not indicate that 3 hours per year, as maintained by the Agency, is sufficient. There are recommendations before the Tribunal that up to 29 hours per year of continence nursing is required. The Applicant's request for 10 hours is less than this. Depending on the progress reporting from a continence nurse, it is possible that more than 10 will need to be included in FWCS' SPS in the future.
2. 10 hours for continence nursing per year is necessary to address needs arising from impairments in relation to which FWCS meets the disability requirements.[102] This will support his goals of participating in the community and developing his independence with activities of daily living.[103] Continence nursing contributes to FWCS' social participation.[104] Continence nursing is effective and beneficial as supported by evidence of good practice from appropriately qualified allied health practitioners.[105] This represents value for money relative to the benefits achieved.[106] I am not satisfied that there are alternatives that would achieve the same outcome at a substantially lower cost.[107] I do not consider that it is reasonable for continence nursing to be provided by FWCS' informal supports.[108] Continence nursing is a NDIS support, being a disability-related health support under item 16 of Schedule 1 of the Transitional Rules. Continence nursing is not excluded under schedule 2 of the Transitional Rules.[109] Continence nursing is most appropriately funded under the NDIS as it relates directly to the Applicant's disability needs and are not more appropriately provided under another system of support.[110] Continence nursing is in FWCS' best interests.[111]

1. The Applicant seeks funding for 44 days of accommodation for short-term respite, being 20 days on weekdays, 12 Saturdays and 12 Sundays. In summary, the Applicant submits that this is required because:

(a) FWCS' impairments are profound, and his behaviours create a high risk of harm; > > (b) AM is experiencing significant carer burnout and has been hospitalised due to mental health and fatigue symptoms; > > (c) AM and FWCS are at risk of homelessness due to family court and domestic violence matters; and > > (d) Rule 3.4 of the Support Rules should be applied to reduce the risk to the wellbeing of AM and FWCS.

2. In their closing submissions, the Agency states the following:

Following the plan reassessment, the Agency has now funded 14 weekends per year (a total of 28 STA days). This provides the applicant with choice and control to access respite on either weekends or weekdays. > > [AM] gave evidence that the applicant has a support worker come into the home by way of respite, to provide her with a break from her caring responsibilities. [AM] said this occurs 'every other week or every few weeks'. Her evidence was that, through her support co-ordinator, she was engaging with a facility, Harry's House, to offer the applicant STA on weekends outside of his mother's home. > > The extent of the risk to [AM's] wellbeing by way of carer burnout, as a consequence of her providing informal care for the applicant while he is in her home, is well managed by: > > (a) the applicant attending school on a full time basis for 40 weeks a year; and > > (b) STA being in place to give [AM] 28 days a year of respite; and > > (c) the applicant having the opportunity to stay with his father 4 days out of every fortnight; and > > (d) the applicant being funded for 8 hours a day for formal assistance with self-care activities while at home; > > (e) the applicant being funded for up to 10 hours (or 5 hours at 2:1 ratio) a week for formal support to access the community during the week; > > (f) the applicant being funded for inactive overnight support for each night while living with his mother (being 8 hours each overnight shift); > > (g) the applicant being funded for 4 hours of formal support one day each weekend at a ratio of 2:1, so that [AM] is not required to attend to activity with the applicant.[112]

3. In her July 2025 functional capacity assessment report, CK recommends:

24/7 Respite Care - 1:1 support. 12 days per year. > > [FWCS] requires a total of 12 Saturdays of respite support per year. Respite will allow [FWCS] to access an environment outside of his usual home, where he can engage in new learning and social opportunities not usually available to him. Respite will also support [AM] to have a break and reduce carer burden and high risk of burnout and relinquishment of care. > > 24/7 Respite Care - 1:1 support. 12 days per year. > > [FWCS] requires a total of 12 Sundays of respite support per year. Respite will allow [FWCS] to access an environment outside of his usual home, where he can engage in new learning and social opportunities not usually available to him. Respite will also support [AM] to have a break and reduce carer burden and high risk of burnout and relinquishment of care.[113]

4. CK identifies a high risk of carer burnout including the possibility that AM may need to relinquish care for FWCS. However, CK's recommendation is for a total of 24 respite days on weekends. CK is not recommending an additional 24 days on top of the 20 weekdays that had previously been funded in FWCS SPS. BF was not asked to provide opinion on short term accommodation for respite. There was very little oral evidence with regards to the amount of respite required. Overall, I do not see that the number of respite days requested by the Applicant is supported by a professional opinion.
5. I also note that Agency's position aligns with the most recent TAPIB opinion being that:

• As per the Operational Guidelines (OG - Short Term Accommodation TAS 2022-11-11 (3).pdf), "we fund up to 28 days of Short Term Accommodation per year". > > It is noted that the Applicant is currently funded 28 days per year of short-term respite to assist in sustaining informal supports and preventing carer fatigue. > > It would not be typical for a child to be spending more time away from the family home above the already funded 28 days of short-term respite per year. > > • It would be of low clinical risk to adjust the rates to Saturday and Sunday rates, should the Applicant wish to use the respite on weekends instead of weekdays, as long as the 28 days per year of short-term respite is not exceeded. > > This is given that weekends are likely the days the Applicant would use. This funding can be used flexibly.[114]

6. The guideline referred to in the TAPIB advice is not current as it was replaced recently by a new Short Term Respite Guideline. With regards to the number of days that can be funded, the current guideline says:

We generally fund up to 28 days of short term respite per calendar year, for up to 14 days at a time. You can choose how to use your funding. For example, you might want to use it in a block of up to 14 days at a time, or for one weekend a month. > > In exceptional circumstances, if your support needs mean you need more than 28 days of short term respite per calendar year, we may be able to fund this. We'll also look at other supports that might be more suitable for you. For example, if you need longer-term accommodation support, we may consider home and living supports. This could include supports like medium term accommodation, individualised living options or supported independent living.[115]

7. With increased funding to allow for 28 days of respite at the weekend rate, support worker assistance and support coordination, I consider that the carer burden on AM should be reduced. I recommend that AM allow a period for the increased supports for FWCS to be consolidated before considering whether further respite is still requested. At this time, I am not satisfied that there are exceptional circumstances which justify an increase above the 28 weekend days currently included in FWCS' SPS.

Support request (f): additional continence consumables

1. The Applicant is requesting additional funding for continence consumables of 'at least $6438.03 and additional low-cost AT of at least $1500 per year'.[116] The Applicant relies on a January 2025 report prepared by the Continence Hub. The author of this report is not specified. The report identifies the following consumables:

ID slip pad small 14 pk 50-90 cm > > $23.56 per pk 10 per day $6142.43 > > To maintain comfort, dignity and containment from incontinence. 10 per day allows for [FWCS'] bowel inconsistency between loose stools or constipation > > Molicare barrier cream 200ml $17.71 > > 6 tubes per year $106.26 > > To maintain skin integrity and reduce risk of dermatitis. > > Swimwear Conni kids Togglz age 12-14 > > $85.09 1 per year $85.09 > > To allow for social water based activities with his family and friends. > > Gloves micro touch medium > > $24.26 10 pairs per day $885.49 > > To maintain hygiene needs following bowel evacuation. > > Wipes confident care > > $63.53 per carton 1 pack per day 1932.37 > > To maintain hygiene needs following a bowel evacuation. 1 pack per day allows for [FWCS'] bowel inconsistency between loose stools or constipation > > Molicare skin enzyme cleansing foam > > 16.26 per bottle 26 per day $318.24 > > Cleansing sticky stool off body without impacting skin integrity > > Bosistos Sensitive Laundry detergent > > $14.63 per kg 1 per 3 months $58.52 > > Increased washing due to bowel accidents > > Instrumax Pink Disinfectant 5 L > > $159.89 per 5 L 2 per year 319.78 > > Cleansing home environment from bowel accidents > > Total annual cost $9848.19 [117]

2. The information provided by continence nurse, RD, is however different. In his March 2025 report, RD identifies the following continence consumables:

ID Comfy Junior 8-15 6 daily $20.50 pp Carton $164 ($2.952 per year) > > Wet wipes 2 packs per week $5.06pp Carton $85.09 (24) $171 per year) > > Molicare Barrier Cream 1 week $18.43 Carton $222 ($222 per year) > > Conni Togs swim pants 2 per year $85.09 ($170.18)[118]

3. At the time of RD's report, the continence consumables identified would cost $3,515.18 per year. RD also notes that 'Surgical gloves and detergents cannot be purchased under continence consumables as per NDIS Guidelines'.
4. The Agency advises that the Applicant's most recent SPS include funding for:
   • Continence related equipment to the amount of $5,801.72; and
   • Low-cost disability related consumables to the amount of $3000.00.[119]
5. The Agency contends that:

The Tribunal cannot be satisfied the applicant's statement of participant supports should be amended to include additional funding for consumables. The description of continence products required by the applicant are set out in the Continence Related Assistive Technology Assessment. These can be purchased from the applicant's existing consumables budget in the current statement of participant supports.[120]

The requested $6,438.03 for continence consumables is under the mandatory TAPIB advice request. > > • The Delegate to make a delegated decision regarding consumables. > > However, the Advisor notes the following: > > • The Applicant opens his bowels multiple times per day (CNC [RD] 19/03/2025, Continence Hub, 06/03/2025).

• - The Advisor notes that the Applicant is reported to experience 'Dumping Syndrome' (OT [CK] 25/07/2025). It is unclear whether this has been further investigated by an appropriate Practitioner (e.g., astroenterologist).

• The NDIS will not fund PPE (e.g., gloves) to be used by formal supports as it is the responsibility of the service provider to provide a safe workplace for support staff and the provision of PPE is included in the hourly rate paid by the NDIS to the service provider (s34.1(f)).

• - It may be considered reasonable and necessary to include funding for a small amount of PPE if informal supports provide personal care.[121]

1. Item 9 of schedule 1 of the Transitional Rules states that 'Assistive products for personal care and safety' are NDIS supports unless otherwise provided. Supports in this item are described as:

Provision of assistive products for self-care activities and participation in self-care. > > This includes the following: > > ... > > (b) products to facilitate washing and drying the participant's body, caring for the > > participant's body and body parts, dressing and protecting the participant's > > body;

(c) modified or adaptive clothing;

...

(e) products to manage incontinence;

1. However, item 3(a) of schedule 2 of the Transitional Rules also states that the following 'Day-to-day living costs - food and groceries' are not NDIS supports:

(a) groceries including all food, beverage, cleaning, household and health products;

What types of continence supports do we fund? > > Continence products that are NDIS supports include products for urinary or faecal incontinence, such as: > > • pads or nappies > > • bedding or chair protection > > • liners or shields > > • anal plugs.[122]

3. With regards to children over five, the guideline says:

For children who are 5 years of age or older we may fund: > > • continence supports for use throughout the day > > • continence supports at night, like nappies, when they are toilet trained during the day > > • a bed wetting alarm which a continence nurse may recommend.[123]

4. The guideline also identifies the following mainstream programs for continence assistance:

What support can you get through the Continence Aids Payment Scheme? > > If you have permanent and severe incontinence, the Continence Aids Payment Scheme may help you pay for some of the continence products you use. If you're eligible for the Continence Aids Payment Scheme, you'll get a yearly payment to help you meet your continence support needs. Learn more and apply for this payment at Continence Aids Payment Scheme. > > If you have continence supports funded in your NDIS plan, you won't generally be eligible for funding under the Continence Aids Payment Scheme. > > You can also contact the National Continence Helpline for information, advice and support about incontinence from a nurse continence specialist. This free and confidential Helpline is run by the Australian Department of Health. > > What support can you get through Medicare? > > Medicare helps all Australians with the costs of their health care. This includes funding for services to test and diagnose incontinence, and continence supports while you're in hospital. Medicare may also fund some short term supports you get from allied health professionals. > > Learn more about Medicare. > > What support can you get through the Pharmaceutical Benefits Scheme? > > You may need medications to help you deal with your continence needs, including suppositories and enemas. The Pharmaceutical Benefits Scheme provides funding for most medications, so we don't fund them. If you need any medication, you should speak to your doctor or pharmacist. > > Learn more about the Pharmaceutical Benefits Scheme.[124]

5. I am not satisfied that an increase to $6438.03 for continence consumables is reasonable and necessary. Items such as gloves, detergent and disinfectant are prevented under item 3(a) of schedule 2 of the Transitional Rules. However, I consider that the RD's opinion as to the appropriate amount of funding for continence consumables should be accepted. RD has taken into account the items which are prevented from being funded under the Transitional Rules. RD's opinion is not challenged by any other professional opinion. In line with RD's recommendations, I consider that an increase from $3,000 to $3,750 for continence consumables is reasonable and necessary, including a small allowance for price increases that are likely to have occurred since the time of RD's report.
6. Continence consumables are necessary to address needs arising from impairments in relation to which FWCS meets the disability requirements.[125] This will support FWCS' goals of participating in the community and developing his independence with activities of daily living.[126] Continence consumables assist FWCS' social participation.[127] Continence consumables are effective and beneficial as supported by evidence of good practice from appropriately qualified allied health practitioners.[128] This level of continence consumables represents value for money relative to the benefits achieved.[129] I am not satisfied that there are alternatives that would achieve the same outcome at a substantially lower cost.[130] I do not consider that it is reasonable for these continence consumables to be provided by FWCS' informal supports.[131] Continence consumables are a NDIS support, being a disability-related health support under item 16 of Schedule 1 of the Transitional Rules. They are not excluded under schedule 2 of the Transitional Rules.[132] Continence consumables are most appropriately funded under the NDIS as the relate directly to the Applicant's disability needs and are not more appropriately provided under another system of support.[133] It may be that FWCS also seeks funding for products not covered by the NDIS under other mainstream programs. Continence consumables are in FWCS' best interests.[134]

1. The Applicant seeks $10,066 funding for a beach wheelchair. The Applicant relies on the recommendation of SS (occupational therapist). In her April 2024 assistive technology assessment report, SS states:

[FWCS] and his mother regularly walk from their home to the beach during the week and enjoy the time that they spend together in the community. However, it has become increasingly difficult for [FWCS] to participate in this activity, meaning that at times he may not be able to attend this community activity. > > If [FWCS] is fatigued, he is unable to walk from home to the beach or even on the sand without significant assistance from a caregiver. If [FWCS] was to take his wheelchair it can only be used on the footpath terrain. [FWCS'] wheelchair is unable to be used on soft beach sand. This means that [FWCS] is not able to go on the shore or in the water, without physical support from a caregiver, who would provide assistance such as lift him or carry him in. > > Without the appropriate assistive technology, [FWCS] is unable to access the beach effectively. Either [FWCS] is not able to go on the beach sand or a caregiver is required to provide physical support to [FWCS] when he is walking. This constant physical support greatly impacts the caregiver's risk of manual handling injuries and reduces [FWCS'] ability to enhance his independence and participation in a meaningful activity. > > Findings of the assessment > > Through assessment, it is evident that [FWCS] requires assistive technology, such as an all-terrain beach wheelchair which can support his engagement and participation in meaningful activities such as going to the beach or going for a walk in the community. > > The Hippocampe beach wheelchair provides [FWCS] the opportunity to participate in meaningful family activities, whilst seated in a supportive seating system that meets [FWCS'] mobility needs. The Hippocampe beach wheelchair allows [FWCS] to engage in activities on various terrains. Two sets of tyres are provided with the Hippocampe, unlike other all-terrain wheelchairs. The Beach wheels will allow [FWCS] to go on sand and in the water at the beach, whilst the all-terrain wheels will allow [FWCS] to travel on grass, footpaths and go for bush walks. > > The Hippocampe beach wheelchair is easy to steer and user friendly for the caregiver, reducing any manual handling risks and provides [FWCS] with comfort, support and safety when participating in these community activities. > > Therefore, it is imperative that [FWCS] have the opportunity just like any other typical developing child, to engage in community-based activities, such as going to the beach or going for a walk in his local community. This is a meaningful and purposeful occupation for [FWCS] and his family and he should be supported to achieve his goals.[135]

2. SS also considered an alternative chair, the Neatech OBette, but did not recommend this chair due to the wheels not being suitable for the trip to and from the beach. SS also considered the hiring of a beach chair from the local council but noted this required a drive to pick up and return the chair. I note that the accompanying quote provide for the Hippocampe Beach Wheelchair, belt, and balloon wheels was valid until 30 May 2024.[136]
3. BF was asked whether or not he would recommend a beach wheelchair. BF's opinion was that:

The Applicant is reported to be making improvements in his general mobility with the support of physiotherapy, age and daily activity. He is reported to be able to mobilise over increasing unstable surfaces although I note he still requires some physical support to mobilise over these surfaces. His endurance is reported as reduced also limiting his ability to mobilise distances outdoors. > > I note interventions by a number of local authorities to improve beach access for people with mobility challenges. Some beaches provide accessible parking bays near the waters edge. Others provide temporary matting over the sand to access the water. I expect however there are many beaches where insufficient access still limits safe and equitable beach access. > > I note the requested hippocampe beach wheelchair is also suited to use on grass and other loose terrain. I expect this wheelchair will also allow the Applicant to access a wide range of public space in addition to the beach. His manual wheelchair cited in the reports is not designed to travel easily and safely over these surfaces. Given the Applicant's generally reduced mobility, I would consider it appropriate at this age that he be supported with the requested wheelchair which will improve his access to all outdoor areas as well as the beach. I expect however as he ages, and with further physiotherapy support, he will in time achieve satisfactory mobility so as to not rely on a wheelchair to access the beach. As such, I would at this time not be supportive of him requiring a replacement beach wheelchair given he will gradually improve his physical capacities with time. > > I am unaware of any satisfactory lower cost alternatives to the requested wheelchair.[137]

... the Tribunal cannot be satisfied that this requested support represents value for money, as required by s 34(1)(c) of the NDIS Act. > > The applicant's representatives have only provided a quote in respect of one option for a beach wheelchair, in the amount of $10,066.00. > > There is no evidence to demonstrate that the applicant's representatives considered alternate, less expensive options, of which there are several available on the market. Evidence was provided by the Agency of potential alternatives at a substantially lesser cost. There is also no evidence to demonstrate that the applicant's representatives sought to ascertain the availability of a good quality second hand beach wheelchair for the model quoted, available for purchase at a substantially lower cost. > > Prior to the hearing, the applicant's representatives were asked to provide either quotes for suitable alterative options, or to explain why other less expensive options were not suitable. That evidence was not forthcoming at the hearing.[138]

5. The Respondent also included several screenshots of beach wheelchairs in the STB provided on 10 November 2025, including:

(a) Hippocampe all-terrain beach wheelchair: $8,799.99 to $9,799.00; > > (b) BWA all-terrain beach wheelchair: $3,899.99; > > (c) Debug beach wheelchair: $5,499.99 to $10,199.99; > > (d) Sandcruiser all-terrain beach wheelchair: $5,699.99; > > (e) Sandpiper all-terrain beach wheelchair: $5,499.99;

6. According to the Assistive Technology Guideline, an item which costs between $1,500 and $15,000 is considered 'mid cost' assistive technology. Items over $15,000 are considered 'high cost.'

1. The supporting evidence that is required differs for mid cost and high cost items as follows:

How can you get mid cost assistive technology in your plan? > > You'll need to give us evidence that your mid cost assistive technology is right for you. The evidence can be a letter, email or report from your assistive technology advisor. Your advisor must tell us: > > • the assistive technology you need > > • why the assistive technology is the best value, over other supports, to help with your disability support needs > > • how the assistive technology will help with your disability support needs and help you pursue the goals in your plan > > • an estimate of how much the assistive technology costs. > > The evidence you give us doesn't need to be a formal assessment but it does need to be in writing so we can keep it for our records. > > ... > > How can you get high cost assistive technology in your plan? > > For high cost assistive technology, you need to give us: > > • a recent assessment or report that shows what assistive technology you need > > • one quote unless we have another way to find out the right amount of funding to include. > > The assessment needs to be from a qualified assistive technology assessor. For example, this could be an occupational therapist or physiotherapist. For specialised hearing products, this needs to be an audiologist, and for prosthetics a qualified prosthetist. We have more information and an assessment template on our website. > > We usually need an assessment from the past 2 years.[139]

2. In my view, the Agency's request for more detailed quotes and alternatives is beyond what is required in the guidelines for mid cost assistive technology. I expect that the approach taken in the guidelines seeks to balance the level of detail required with the cost of assessments, trials, and report writing. Based on the guidelines, what has been provided by SS is sufficient. SS' assessment was also endorsed by the independent OT, BF.
3. The Agency has not provided an expert opinion which indicates that there are comparable supports which would achieve the same outcome at a substantially lower cost. The screenshots provided by the Agency in the STB includes beach wheelchairs that are substantially cheaper than the one recommended by SS and BF. But this is not the same as a lower cost item being assessed as being suitable for meeting FWCS' needs including considerations such as his height, weight, stability, and his intended use of the chair to travel between his house and the beach, on the beach, and on other terrains.
4. However, as SS' assessment was conducted in April 2024 and the associated quote is no longer valid, I cannot be specific about the correct amount of funds to be included in the FWCS' SPS for this item. Subject to an updated quote being provided, I consider that funding to purchase the Hippocampe Beach Wheelchair, belt, and balloon wheels is reasonable and necessary. This beach wheelchair is necessary to address needs arising from impairments in relation to which FWCS meets the disability requirements.[140] This will support FWCS' goal of participating in the community[141] and directly assist with FWCS' social participation.[142] The beach wheelchair is effective and beneficial as supported by evidence of good practice from appropriately qualified assessors.[143] The beach wheelchair represents value for money relative to the benefits achieved.[144] While it is a mid cost item, I am persuaded that being able to access a nearby beach will have significant benefits for FWCS and will strengthen and build the capacity of AM to support FWCS with his community participation.[145] The provision of this support is in FWCS' best interests.[146] I am not satisfied that there are alternatives that would achieve the same outcome at a substantially lower cost.[147] I do not consider that it is reasonable for this wheelchair to be provided by informal supports or the community.[148] A beach wheelchair is an NDIS support, being personal mobility equipment under item 28 of Schedule 1 of the Transitional Rules. It is not excluded under schedule 2 of the Transitional Rules.[149] A beach wheelchair is most appropriately funded under the NDIS as it relates directly to the Applicant's disability needs and is not more appropriately provided under another system of support.[150]

Support request (h): level 3 transport funding

The Applicant is seeking level 3 transport funding. In summary the Applicant submits that this level is needed because:

(a) FWCS is studying; > > (b) FWCS cannot use public transport; > > (c) FWCS attend many medical and allied health appointments; and > > (d) AM is currently required to transport FWCS, including when he misses the school bus.

The Applicant's most recent plan does not include any specific funding for transport. In summary, the Agency submits that transport funding is not required as:

(a) FWCS uses the school bus; > > (b) The Applicant has not provided supporting information for FWCS' transport needs; and > > (c) It is reasonable for families to provide transport for community access for a 14-year-old.

In her August 2025 report, DB (specialist support coordinator), recommends level 3 transport funding.[151] DB does not provide a basis for this recommendation and DB did not elaborate on this need during her oral evidence. BF was not asked to provide an opinion on transport funding. The advice of TAPIB was that:

It is not considered reasonable and necessary to include level 3 transport funding - section 34.1(e), and Transitional Rules Schedule 2, item 6 (g) are not satisfied. > > - Noting the Applicant's age, travel and transport would be considered part of the reasonable care and support provided by families or carers.[152]

Section 6(2)(b) of the National Disability Insurance Scheme (Old Framework Plans) Determination 2024 (Old Framework Determination) specifies how to work out funding for recurring transport support, being:

(i) unless subparagraph (ii) or (iii) applies - $1,784; > > (ii) if subparagraph (iii) does not apply and the participant is working or studying (or both) for less than 15 hours each week, is attending day programs, or requires the supports for social, recreational or leisure activities - $2,676; > > (iii) if the participant is working or studying (or both) for at least 15 hours each week - $3,456.

Transport funding is also covered in section 12 of the Specific Supports guideline which says:

A participant's transport supports may also include the reasonable and necessary costs of taxis or other private transport options for participants who are not able to travel independently, as well as transport to and from school for students. > > ... > > A support will not be provided or funded under the NDIS if it relates to day-to-day living costs (rule 5.1(d) of the Supports for Participants Rules). > > Day-to-day living costs may include rent, groceries or utility fees, however, this is not an exhaustive list. Transport is an incidental cost of everyday life for most people and, therefore, can also be considered to be a day-to-day living cost. > > However, the NDIS may fund day-to-day living costs that are incurred by a participant solely and directly as a result of their disability support needs (rule 5.2(a) of the Supports for Participants Rules). > > These additional living costs (i.e. those incurred by a participant solely and directly as a result of their disability support needs) may be funded under the NDIS if they are NDIS supports that meet the NDIS funding criteria. > > Before including any transport support in a participant's plan, the NDIA must also be satisfied that the support will assist the participant to pursue their goals, objectives and aspirations. > > In addition, the NDIA must take into account what is reasonable for families, carers, informal networks and the community to provide. In relation to transport, this consideration may be different for participants who are children as compared to participants who are adults. > > ... > > Transport should only be funded where it has been determined to be reasonable and necessary, where it is an additional cost incurred solely and directly as a result of a participant's disability support needs and, where ancillary to another funded support, it is a cost which the participant would not otherwise incur. > > It does not follow, merely because transport is ancillary to a funded support, that it should be funded**.**[153]

With regards to children, section 12.1 of the Specific Supports guideline says:

The NDIS will generally not fund day-to day-living costs associated with caring for children, including transport costs, as parents are expected to meet a child's everyday transport requirements (see JQJT and NDIA [2016] AATA 478 at [35]). > > When considering whether transport meets the NDIS funding criteria for a child, the NDIA must take into account what is reasonable for families, carers, informal networks and the community to provide (section 34(1)(e)). > > What is reasonable for a family to provide in respect of a particular support should be considered in light of the support they have to provide the child generally because of his or her disability (see JQJT and NDIA [2016] AATA 478 [39]). > > When considering whether funding for transport for a participant who is a child takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the NDIA will consider:

• that it is normal for parents to provide substantial care and support for children;
• whether, because of the child's disability, the child's care needs are substantially greater than those of other children of a similar age;
• the extent of any risks to the wellbeing of the participant's family members or carer or carers; and
• whether the funding or provision of the support would improve the child's capacity or future capacity, or would reduce any risk to the child's wellbeing (rule 3.4(a) of the Supports for Participants Rules).

The NDIS will be responsible for supports that a student requires that are associated with the functional impact of the student's disability on their daily living activities, such as transport to and from school (rule 7.13 of the Supports for Participants Rules). > > When considering if specialist transport to and from school for a participant who is a child meets the NDIS funding criteria, the NDIA will consider:

• if any other transport option is available and appropriate; and
• whether providing the supports would substitute for parental responsibility.[154]

1. I partly agree with the Agency's submission that FWCS' school transports needs are being met by the education system, at least on the days when FWCS gets the school bus to and from school. It is not clear how often FWCS misses the school bus. With the increased support worker hours that will be available following the Tribunal's decision, I consider that it is reasonable to infer that the number of times that FWCS will miss the bus will not be significant.
2. Based on the schedule of supports provided, it appears that AM will still be involved in transporting FWCS to and from treatment and therapies three afternoons per week. I consider that this is within the range of what would be considered normal for a parent of a 14-year-old without FWCS' disability to provide. I consider that the risks to AM's wellbeing in providing this transport is managed by the addition of a support worker to accompany AM and FWCS during his transport to and from treatment and therapy. Overall, I am not satisfied that it is reasonable and necessary to include specific transport funding in FWCS' plan.

1. The decision under review, being the decision of the CEO of the National Disability Insurance Agency to approve a statement of participant supports under sections 33(2) and 100(6A) of the NDIS Act:

(a) made on 12 April 2024; and > > (b) as updated on 12 December 2024, 5 December 2025 and 12 December 2025;

is set aside under section 105 of the ART Act and remitted for reconsideration with the directions that the statement of participant supports include sufficient funding for:

(a) support worker assistance with self-care activities at a 1:1 ratio:

(i) during school term, weekday daytime rate, for 32.5 hours per week;

(ii) during school holidays, weekday daytime rate, for 65 hours per week;

(iii) for public holidays which fall on a weekday, 14 hours for 9 days per year;

(iv) for public holidays which fall on a weekend, 14 hours for 2 days per year;

(v) Saturdays, 9 hours for 37 days per year;

(vi) Sundays, 9 hours for 37 days per year, and

(vii) night-time sleep over, 7 nights per week.

(b) support worker assistance with community, social and economic participation at a 2:1 ratio:

(i) weekday daytime rate, for 5 hours per week;

(ii) Saturday rate, for 5 hours per week; and

(iii) Sunday rate, for 5 hours per week.

(c) 68 hours for occupational therapy per year;

(d) 68 hours for physiotherapy per year;

(e) 10 hours for continence nursing per year;

(f) $3,750 for continence consumables; and

(g) subject to provision of an updated quote, purchase of a Hippocampe beach wheelchair with a belt and balloon wheels.

1. The date by which Agency must reassess the Applicant's plan is 12 months from the date that the above supports are added to the Applicant's plan.
2. The other aspects of the statement of participant supports, including the management of supports, remain unchanged.

Ms G Bye, People with Disabilities Western Australia

[1] Joint Tender Bundle, pages 240 and 241.

[2] The document numbering in the JTB is adopted throughout these reasons.

[3] Which are all the records that the Agency considered when making the decision under review as required by section 23 of the ART Act.

[4] I have used a similar overview in other decisions.

[12] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

[14] NDIS Act, sections 24 and 34(1)(aa),

[23] NDIS Operational guideline: Reasonable and necessary supports, published 28 March 2025. Pages 11 and 12. Notes omitted. Emphasis in original.

[27] NDIS Operational guideline: Reasonable and necessary supports, published 28 March 2025. Page 12.

[37] Respondent's Closing Submissions, pages 13 and 14.

[39] Applicant's Closing Submissions, page 5.

[44] NDIA Act, section 34(1)(e) and Support Rules, rule 3.4.

[45] NDIS Act, section 34(1)(aa) and Support Rules, rule 5.2.

[53] Sections 10 and 34(1)(f) as amended.

[54] Section 34(1)(f) prior to amendment.

[59] JTB, page 601. Emphasis in original.

[60] Respondent's closing submissions, page 15.

[77] Applicant's closing submissions, page 4. Emphasis in original.

[78] For a recent discussion of these issues see New Aim Pty Ltd v Leung [2023] FCAFC 67, from [61]. See also JD Heydon, Lexis+, Cross on Evidence (online at 2 February 2026) [17170].

[80] Respondent's closing submissions, page 15.

[81] Applicant's closing submissions, pages 11 to 13.

[82] NDIS Act, section 34(1)(aa) and Support Rules, rule 5.2.

[89] Sections 10 and 34(1)(f) as amended.

[90] Section 34(1)(f) prior to amendment.

[92] NDIS Act, section 34(1)(aa) and Support Rules, rule 5.2.

[99] Sections 10 and 34(1)(f) as amended.

[100] Section 34(1)(f) prior to amendment.

[102] NDIS Act, section 34(1)(aa) and Support Rules, rule 5.2.

[109] Sections 10 and 34(1)(f) as amended.

[110] Section 34(1)(f) prior to amendment.

[112] Respondent's closing submissions, page 10. Notes omitted.

[115] NDIS Operational Guideline: Short term respite, published 16 October 2025. Page 3.

[116] Applicant's closing submissions, page 13.

[119] Respondent's closing submissions, page 2.

[120] Respondent's closing submissions, page 16. Notes omitted.

[122] NDIS Operational Guideline: Continence supports, published 07 April 2025. Page 4. Emphasis in original.

[123] NDIS Operational Guideline: Continence supports, published 07 April 2025. Page 6.

[124] NDIS Operational Guideline: Continence supports, published 07 April 2025. Page 3. Emphasis in original. Hyperlinks removed.

[125] NDIS Act, section 34(1)(aa) and Support Rules, rule 5.2.

[132] Sections 10 and 34(1)(f) as amended.

[133] Section 34(1)(f) prior to amendment.

[138] Respondent's closing submissions, page 17.

[139] NDIS Operational Guideline: Assistive Technology (equipment, technology and devices), published 20 December 2023. Pages 8 and 9. Emphasis in original. Hyperlinks removed.

[140] NDIS Act, section 34(1)(aa) and Support Rules, rule 5.2.

[149] Sections 10 and 34(1)(f) as amended.

[150] Section 34(1)(f) prior to amendment.

[153]NDIS Operational Guideline: Including Specific Types of Supports in Plans, published 19 November 2024, pages 8 and 9. Hyperlinks removed.

[154] NDIS Operational Guideline: Including Specific Types of Supports in Plans, published 19 November 2024, page 10. Hyperlinks removed.