1. The Respondent altered its position on what additional supports were reasonable and necessary as a result of ongoing discussions between the parties during pre-hearing alternate dispute resolution processes. As a result, in their pre-hearing Statement of Facts Issues and Contentions (SOFIC), dated 14 March 2025, the Respondent set out the following accepted supports which they conceded should be incorporated into the Applicant's Plan:

(a) 5 hours per week for support worker assistance*

Capacity Building - Improved Daily Life

(b) An additional 22 hours of Occupational Therapy

(c) 26 Hours of Psychology

(d) An additional 20 hours of Early Childhood Services

Capacity Building - Improved Relationships

(e) 48 hours of Specialist Behavioural Intervention

(f) 20 hours of Training in Behaviour Management

*(This was later increased to 10 hours)

1. The Applicant is seeking 14 hours per week of support worker Assistance with Daily Life. In respect of Capacity Building - Improved Daily Living, the Applicant seeks specialist swimming lessons.

1. The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community. This is consistent with the Charter of Rights of the Disabled, whereby persons with disabilities should be free to the greatest extent possible to live a life in a manner of their own choosing.
2. The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several provisions. The Act introduced a new section 10 regarding a definition of NDIS support and amended section 34(1)(f). These changes apply to the Applicant's Statement of Participant Supports (SOPS) and must be considered by the Tribunal. The changes apply retrospectively to Plan matters not finalised by the Tribunal on 3 October 2024, irrespective when their internal review and Tribunal matters were lodged.
3. Subsection 34(1) of the NDIS Act now states:

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

(a) the support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements (see section 24) or the early intervention requirements (see section 25);

(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations;

(b) the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation;

(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;

(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;

(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;

(f) the support is an NDIS support for the participant.

(a) the time at which the disability requirements or the early intervention requirements need to be met is the time the CEO decides to approve the statement of participant supports; and

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

(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

1. When standing in the shoes of the delegate and conducting the administrative review, the Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act in order to make a finding that the requested support is a reasonable and necessary support. The Applicant carries a practical rather than a strict onus to adduce sufficient evidence to satisfy the Tribunal that the relevant criteria are met.
2. The term 'reasonable and necessary support' is not defined in the NDIS Act. In McGarrigle v National Disability Insurance Agency [2017] FCA 308 ('McGarrigle') the following observations at [91] are relevant (applying prior to the October 2024 amendments):

Whether a support is "reasonable" requires a different assessment to whether a support is "necessary". Again, it is not necessary in the context of this proceeding to be definitive about the nature and extent of the meaning of the phrase, or its components. It is enough to observe that using the concept of necessity would appear to tie one aspect of the CEO's assessment to an evaluation of the kinds of factors set out in s 34(1)(a) and (b) and (d). The word "reasonable" would appear to be directed at factors such as those set out in s 34(1)(c) and (f). That is not to say the meaning of each word is exhausted by the factors set out in s 34(1): rather, it is to illustrate the different work that each concept does as an adjective in the phrase "reasonable and necessary supports".

3. The Full Federal Court in National Disability Insurance Agency v WRMF [2020] FCAFC 79 ('WRMF') considered the meaning of reasonable and necessary supports:

[T]here is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate.[1]

4. Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters. Relevant rules in the Applicant's case include the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) ('the Supports Rules').
5. Part 3 of the Supports Rules set out criteria the Tribunal must consider when determining whether the supports requested are reasonable and necessary including whether they represent value for money. The Part also requires consideration as to whether the proposed supports are effective and beneficial having regard to good practice and take account of what is reasonable to expect families to provide and are most appropriately funded by the NDIS, rather than through other service systems.
6. Rule 3.1 concerns whether the supports requested are reasonable value for money. Section 34(1)(c) states:

3.1 In deciding whether the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support, the CEO is to consider the following matters: > > (a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost; > > (b) whether there is evidence that the support will substantially improve the life stage outcomes for, and be of long-term benefit to, the participant; > > (c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports); > > ... > > (f) whether the support will increase the participant's independence and reduce the participant's need for other kinds of supports (for example, some home modifications may reduce a participant's need for home care).[2]

7. Rules 3.2 and 3.3 regarding effective and beneficial and current good practice (section 34(1)(d)) provide:

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to consider the available evidence of the effectiveness of the support for others in like circumstances. That evidence may include: > > (a) published and refereed literature and any consensus of expert opinion; > > (b) the lived experience of the participant or their carers; or > > (c) anything the Agency has learnt through delivery of the NDIS. > > 3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a participant, having regard to current good practice, the CEO is to take into account, and if necessary seek, expert opinion.

8. Rule 3.4 sets out the matters to be considered when assessing what is reasonable to expect families, carers, informal networks and the community to provide under section 34(1)(e).

3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters: > > ... > > (b) for other participants: > > (i) the extent of any risks to the wellbeing of the participant arising from the participant's reliance on the support of family members, carers, informal networks and the community; and > > (ii) the suitability of family members, carers, informal networks and the community to provide the supports that the participant requires, including such factors as: > > (A) the age and capacity of the participant's family members and carers, including the extent to which family and community supports are available to sustain them in their caring role; and > > (B) the intensity and type of support that is required and whether it is age and gender appropriate for a particular family member or carer to be providing that care; and > > (C) the extent of any risks to the long term wellbeing of any of the family members or carers (for example, a child should not be expected to provide care for their parents, siblings or other relatives or be required to limit their educational opportunities); and > > (iii) the extent to which informal supports contribute to or reduce a participant's level of independence and other outcomes; > > (c) for all participants - the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

9. Part 5 contains criteria regarding supports and supports that will not be funded. Rules 5.1 and 5.2 provide:

5.1 A support will not be provided or funded under the NDIS if: > > (a) it is likely to cause harm to the participant or pose a risk to others; or > > (b) it is not related to the participant's disability; or > > (c) it duplicates other supports delivered under alternative funding through the NDIS; or > > (d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs. > > ...

10. The National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) ('the Transitional Supports Rules') introduce key changes. Schedule 2 of the Transitional Supports Rules stipulate supports that are not considered NDIS supports.
11. The NDIS Operational Guidelines are also relevant to 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.[3] The Operational Guideline - Reasonable and Necessary Supports (22 September 2024) states that the NDIS principles set out in law indicate that reasonable and necessary supports should:
    • - support you to pursue your goals and maximise your independence
    • - support you to live independently and to be included in the community as a fully participating citizen
    • - develop and support your capacity to do things that help you participate in the community and in employment.[4]

1. The parties relied upon the Joint Tender Bundle (JTB) which comprised for the Applicant: a statement of lived experience, 13 videos of the Applicant highlighting behaviours and care needs, a statement in reply to the Respondent's SOFIC and a Centrelink letter dated 8 April 2025. The Respondent relied on their SOFIC dated 14 March 2025 and the T Documents which comprised the holdings that the NDIA held in respect of the application and the change of circumstances request and Internal Review, as well as occupational therapy and psychology reports and letters from Swimming Lesson providers.
2. The Applicant's Statement of Lived Experience refers to her daily routine and was provided by her mother who was her agent appointed under s 66 of the Administrative Review Tribunal Act 2024. The statement refers to activities of daily living (ADL's) including difficulties with personal care, behaviours of concern (under a heading 'Violence to others'), meltdowns and a detailed and itemised list of family members providing care for JNLJ over a weekly roster.
3. In addition to the JTB, the Applicant relied on a report of Madeline Butler Occupational Therapist (OT) dated April 2025 and received 2 May 2025. The report is based on assessments and an eight-month history of weekly OT sessions with the Applicant. The report seeks to summarise the treatments and concerns to date as well as tying the recommendations in respect of OT to the Applicant's existing NDIS goals

1. It became clear early at the commencement of the Hearing that many of the issues around the administrative review of the Applicant's plan had been resolved between the parties. The Tribunal was advised that the Respondent was now prepared to offer an extra 10 hours per week of a funded support worker for the Applicant. The Tribunal notes that the Plan review which was subject to Internal Review was seeking a total extra hours of support worker funded at 14 hours per week. The review was also seeking extra funding for swimming lessons for the Applicant.
2. The Applicant submitted at the Hearing that their behaviours are covered by 'masking' behaviours equating to 'holding it all in' until a time when she feels safe to 'let it all out'. It was submitted that the Applicant has extreme sensory processing issues across all areas. When the Applicant is in a state of shut down, it was submitted that it is difficult to manage all aspects of her behaviour and needs. There are between 25 and 50 meltdowns a day, and for this reason, she is unable to attend daycare or kindergarten. It was also submitted that the Applicant had recently expressed an interest in attending preschool and had attended once three months prior.
3. It was submitted that the extra 14 hours a week was a reasonable and necessary support for the Applicant because without it she cannot carry out her activities of daily living. Reliance was placed on an OT assessment by T Coleman which found that on benchmarking 96% of the Applicant's same age peers were managing better than her. The Tribunal was told through opening submissions that the Applicant's GP had indicated that the provision of extra support was required on an urgent basis. A further OT report had recommended a total of 15-20 hours per week in home support for the Applicant.
4. Submissions noted that Centrelink had provided the Applicant's mother with a carers allowance from 22 January 2024, in recognition of the Applicant's support and care needs. In respect of the portion of the claim which included swimming lessons, the Applicant submitted that these were not so much to teach her to swim, but as therapeutic intervention activities to deal with low muscle tone.
5. The Respondent submitted that one of the issues was that the further behaviours of the Applicant requiring greater support and intervention had not been observed or documented by anyone outside of the family. Allegations that the Applicant had caused head trauma to her younger sister were, according to the Respondent, not supported by medical evidence. The current funded support is in addition to that provided by two parents who are at home and grandparents available some of the time.
6. In addition, the Respondent noted that the latest changes to the NDIS Rules preclude swimming lessons from being an NDIS funded support.

1. The Applicant relied on the following marked sections from the JTB: A01- Statement of lived experience, A02 - videos of Applicant, A03 - Applicant's statement in reply, A04 - letter from Centrelink, T1B (page 10 JTB) letter Dr Campbell 30/11/2020, T1C (pages 11-30 JTB) POTS OT Report late 2024, T1E (page 40 JTB) Aqua Stars Swim School letter undated, T3 (pages 50-57 JTB) Psychological Assessment report dated 13 December 2023, T5 (pages 71-75 JTB) NDIS / Northcott child and family profile documents.

1. The Respondent relied upon the JTB and specifically their Statement of Facts Issues and Contentions, marked R01 at pages 241-252 of the JTB.

1. As the Applicant's Agent, the Applicant's mother provided oral evidence at the Hearing to support the application that she had made on behalf of the Applicant. Due to her young age, the Applicant herself did not provide any evidence during the Hearing, but the videos were tendered without objection on the basis that they provided the best evidence of the Applicant herself.
2. In examination in chief, the Applicant's Agent adopted the statement of lived experience as true and correct. She said that there had since been a small period of improvement with aspects of the ADL's such as toileting. The Applicant no longer required to be leaning forward and having pressure applied in order to successfully toilet. The Applicant's Agent advise that she was pregnant, which it was put to the Tribunal as relevant because since the pregnancy became apparent, there has been a marked regression in the Applicant. The Tribunal was advised that a support worker had now started with the Applicant as well as sessions with a Psychologist. At present, they were seeing the current Psychologist at Warner's Bay (North Lake Macquarie) but were on the waiting list for an in-home Psychologist.
3. In cross examination, the Applicant's Agent was asked about the current Carer's Allowance. The assumption was that the Applicant's Agent was the full time carer. She said that the allowance was to enable her to be the Applicant's carer during the day and the father takes up the role during the night. The Tribunal was told that the Applicant sleeps with the light off and door closed. She will wake up approximately four times most nights. The Applicant's Agent said that the father needs to work to support the family. Her mother was also providing financial support to the family unit consisting of four, soon to be five.
4. The Applicant's father is currently unemployed, having been made redundant having received a redundancy package. He was retraining and currently unbale to work because of the redundancy conditions. The Tribunal was told that the grandmother had paid off the home loan and the grandfather had made a modest, but not insignificant financial contribution to the household. They had applied for the carer's allowance due to her inability to continue working whilst caring for the Applicant, and the father's inability to work due to the redundancy conditions.
5. The Applicant's Agent's mother (the grandmother) provided care support 10:00am - 4:00pm on Fridays. Her father (the grandfather) provided help with the other (younger) child on Thursdays whilst the Applicant was taken to gymnastics. There was some evidence that a grandparent with early-stage dementia had not been utilised for as much care as might otherwise be the case due to some behavioural issues. The Applicant's Agent's mother-in-law provides support on Tuesdays for the younger child while the Applicant is at swimming lessons. The other grandparent is seen three or so times a year and not in a position to assist with care coverage for the household.
6. Current OT sessions for the Applicant are four hours per week. This commenced in August 2024. The current psychology sessions are a mix of time with both the Applicant's Agent and with the Applicant. The Tribunal was told that with the introduction of the current support worker, the Applicant has yet had a one-on-one session When the Applicant's Agent is having psychology sessions, either the grandmother or the Applicant's father are with the Applicant. At the time of the Hearing only one session had taken place.
7. In respect of the sessions with the OT, the Tribunal was advised that the objective of the current sessions is to develop strategies. One example raised in evidence was sleep strategies for the Applicant's father when sleeping nearby. Sensory processing therapies, blankets, cushions, and pressure approaches were all worked on. Reference was also made to vibrating meditation toys and a sensory swing. The Tribunal was advised that one recent matter concerned a hair cut of the Applicant so that she could not grip her own hair easily. In respect of the sensory swing this was utilised daily and the Applicant often initiates it's use. OT strategies include eating strategies and they had all resulted in improvements in behaviours other than the actual eating behaviours. It was put to the Applicant's Agent that the behaviours of the Applicant are her main concerns. The Applicant's Agent agreed but also said a significant concern was the inability of the Applicant to perform her ADL's without extra support.
8. The Tribunal was advised that the Applicant is getting on better with her sibling. However, they are still seeking one-on-one support for matters such as dressing, eating playing and other ADL's. Squishing therapy was also cited as an important part of the one on one support and a calming technique for de-escalation of the Applicant's behaviours.
9. The Tribunal was advised that whilst the Applicant's father is currently not working he is in the process of trying to start a business as a 'start up'. He is working on a neuro translator tool which is an application (App) based product. However, he can only devote time and energy to this pursuit at present when the support worker is assisting.
10. The Applicant's Agent advised that the Applicant had been around her every day since birth and that she is less comfortable around the grandparents. The Applicant was described as unusually close to her mother (the Applicant's Agent), and that as a result, she rarely gets a real break and in practice there is no respite. At present, the Applicant only engages with brief one on ones with the support worker in the absence of the Applicant's Agent.
11. The Applicant's Agent was asked what strategies they are putting in place for the Applicant's future independence. The Applicant's Agent answered that in order to achieve that goal, they require more one on one support at present. She said that the Applicant needs to have all her other needs met to enable work to take place in the one specific task at hand. Support prevents shutdown and meltdown of the Applicant if all of her sensory needs are met. As provided by the oral evidence presented at the Hearing, the only area where the Applicant appears able to self focus is around eating.
12. The Applicant's Agent submitted at the Hearing that she relinquished her position as a permanent teacher - having decided to do so to cater towards the needs of the Applicant.
13. The Applicant's Agent was asked about the current state of the evidence and that she was unwilling to introduce new people into the mix to assist the Applicant, pointing to the delayed introduction of a speech pathologist. The Tribunal was advised that they were trying to build a relationship with the psychologist at present and this took priority. The Applicant's Agent said that they wanted to introduce new clinicians slowly to manage the Applicant's reactions. The Tribunal was advised that the 'meltdown' behaviours had lessened since the current support worker had commenced. Meltdowns and shutdowns had occurred when the OT was present but not the support worker.
14. The Applicant's Agent was asked whether she agreed that some other things that the NDIA had offered the family would help support the Applicant. The Applicant's Agent agreed but said that those were focused on long term benefits and improvements and were not of assistance now. In respect of the OT's recommendation of behavioural support training not being taken up, the Applicant's Agent confirmed that this was the case and said it was because they were trying to limit the introduction of new personalities into the Applicant's life, but that the current team with the support worker has been seen to work. It was suggested to the Applicant's Agent that this may be limiting the Applicant and preventing her from reaching all of her available goals.
15. It was put to the Applicant's Agent that whilst their wish list would be helpful, the NDIA's view was that it is not adequately addressing the Applicant's goals. The Applicant's Agent said that they are accessing all of the available supports other than behavioural supports at this stage. The Applicant was described as being calmer and more regulated when the support worker is present at the home. The Applicant's Agent said that this support is now essential as it is at present but possibly may not be required in three years time.
16. The Tribunal was advised that consistent with aspects of her diagnosis, the Applicant had (for her age) exceptional memory, vocabulary, reading abilities and an interest in human biology. There were no intellectual or cognitive impairments present. The Respondent put to the Applicant's Agent that whilst it was accepted that the Applicant has a level 1 Autism diagnosis, it was time for her to now be encouraged to be independent and resilient. The Applicant's Agent agreed with the proposition, but that such a position was what the family was actively working on with the clinicians and support. She explained how she had advertised online, interviewed and selected the current support worker who was relevantly experienced to provide support for the Applicant. In respect of her own skills at support as well as identifying appropriate support skills the Applicant's Agent advised that whilst she has no formal qualifications / training, she has had some training as well and having another relative who is autistic. In addition, she had previously worked as an educator in a special school for children with learning and or behavioural challenges.
17. At this point of the cross examination the Respondent's Counsel took the Applicant's Agent through the Coleman report (the Pots Report) - (T1C), and the Sunny Steps Report (T3). The Tribunal also viewed the videos. The Applicant's Agent highlighted to the Tribunal the evidence of the Applicant trying to 'stomp' on her younger sibling and these occurred post the Sunny Steps assessment by the psychologist P Swift. The Tribunal was advised that these videos were taken on the advice of the clinicians. The Applicant's Agent was asked what does she take to tell the Applicant that her actions of biting are wrong or inappropriate? The response was that they do not try and discourage behaviours during a 'meltdown' but that they focus on de-escalation. This evidence was pertinent after viewing video of the Applicant biting her father during a 'meltdown'). It was put to the Applicant's Agent that one of the things that should be occurring was to explain the inappropriateness of this behaviour irrespective of the reasons it manifested. It was also put that the current approach and demonstrated actions were ineffective. The Applicant's Agent disagreed with this proposition. The Applicant's Agent suggested that she normally deals with all children having a 'meltdown' in the same manner, whether they are diagnosed with autism or not.
18. It was suggested by the Respondent that the approach taken to date was ineffective. The Applicant's Agent disagreed and said that she views her daughter (the Applicant) as autistic and as such, disciplines her differently.
19. The Applicant's Agent was asked about the presentation of masking behaviour in the Applicant. The Applicant's Agent referred to the following passage from the Sunny Steps report at 56 of the JTB as evidence of a clinician identifying masking behaviour:

Adults are more likely to be predictable in social interactions and (JNLJ's) cognitive abilities may allow her to mitigate social deficits when engaging with adults.

It was put to the Applicant's Agent that the Applicant only engages in extreme behaviours because it is wrong. The Applicant's Agent denied this and said that the Applicant does not just deal with her, but also the extended family. It was suggested that the grandparents reacted to the Applicant's behaviour in the manner that they did because the Applicant's Agent had told them how to react and respond. This was denied with the Applicant's Agent stating that when dealing with the extended family, they all have their own ways of dealing with the Applicant.

1. In re-examination, the Applicant's Agent noted that as parents they are not professionals, but that clinicians are professionals. As such, the clinicians had determined that many of the observations whilst self-reported by family, are sufficient to meet the criteria for the clinicians to recommend further support and interventions for the Applicant.
2. The Tribunal inquired of the Applicant's Agent as to the diagnosis of the extended family member who had previously lived with them, (as set out at [52] above), in order to gain an understanding of the family's experience with disability. The Applicant's Agent said that the relative who is now a young adult and lives elsewhere has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD).
3. The Applicant's father (the witness) also gave evidence at the Hearing and was subject to cross examination. He confirmed in his evidence in chief that he was currently unemployed, in that he was not earning income but was working in a business start-up.
4. In cross examination, the witness was asked about the App that he was developing and identified in earlier evidence. He said that it was designed for persons who are neurotypical to enable them to communicate better using AI. He advised that $16,000.00 Australia Dollars had been spent so far developing the App or application, over the nine-month development period. He had spent 30 hours a week over this nine-month period on the project.
5. The witness confirmed to the Tribunal that he was not involved directly in the NDIS Change of Plan / Change of Circumstances, Internal Review and ART appeal processes.
6. To the extent that it was relevant, the witness confirmed that he had fairly recently been diagnosed with Autistic and Inattentive ADHD. In respect of whether his diagnosis had any impact on his ability to perform his work the witness advised that he is able to hyperfocus on tasks so he is able to do the work needed.
7. The witness confirmed that he was now in his mid-thirties and that he was reluctant initially to obtain a diagnosis as an adult. However, following the birth of the Applicant and her subsequent diagnosis, he decided to pursue whether there was any condition. The witness noted that his sensory issues became more apparent after lowering his masking of them. The witness was asked whether someone had suggested to him that he might be autistic which the witness confirmed the suggestion as coming from the Applicant's Agent's cousin. The Cousin had suggested that both he and his daughter (the Applicant) might be on the spectrum (autism spectrum).
8. The witness referred to the positives arising from his diagnosis such as the ability to think outside the box, be articulate and see patterns in things where others cannot. When asked about the parenting approach for the Applicant with one-on-one attention and how long they planned to persist with it, the witness said that he and his wife agreed to continue it until it was no longer developmentally relevant. In respect of parental goals for the Applicant such as being independent of self-care tasks, the witness was asked what the NDIA would recommend to achieve such a goal. The witness was advised that the Agency had recommended a behavioural assessment, but the witness advised that pushing boundaries only created a larger number of meltdowns and burnout.
9. It was put to the witness that such difficult behaviours are often associated with a response by some when they do not get their own way. The witness agreed but added that 'normal people have meltdowns don't they'. The witness explained that the Applicant's first bite from a behavioural perspective was on their mother or the grandmother when she was between six and nine months of age. When the witness first observed the Applicant to bite he told her to stop. He gets the Applicant off his body sometimes applying sensory pressure. In respect of the videos viewed showing the witness and the Applicant, it was put to him that rather than deescalating and training the behaviours, he was enabling them, which the witness denied.

1. The Applicant's Agent submitted that she understood the limitations on NDIS support and the NDIA's position in respect of children's needs. However, it was submitted that the Applicant's impairments are not improving with the current level of support in her plan. It was submitted that the Applicant requires extra hours of support due to her disabilities.
2. The Applicant's Agent submitted that co-regulation is not about being lenient, but about allowing the Applicant to regulate. It was submitted that this is an acceptable approach for autism spectrum disorder
3. In closing submission, the Applicant's Agent submitted that they relied on the position that clinician's had recommended 14-28 hours extra support for the Applicant. In respect of the swimming lessons prong of the application, the Tribunal inquired as to why that aspect was being pursued when on a preliminary reading of the amended Rules such a support is no longer a NDIS support. The Applicant's Agent submitted that as a parent she was advocating for what she believed was best for her child.

1. At the close of the evidence, the Respondent referred to the purported failure to call various witnesses being clinicians and suggested a Jones v Dunkel (Jones - v- Dunkel [1959] HCA 8) type argument, that the failure to call the witnesses was because their evidence when tested would not have assisted the Applicant's case. Reference was made to email correspondence between the parties and in particular, an email dated 12 May 2025 from the NDIA's solicitor to the Applicant's Agent stating that they wished to cross examine her witnesses and the need to make arrangements to have them available for cross examination.
2. The Respondent submitted that the behaviour of the parents is enabling the Applicant to heighten her behaviour and apparent dysregulation. Reference was made to an Independent Medical Examination (IME) being refused and how this decision did not assist the Applicant in achieving the outcome sought for her by her Agent.
3. Submissions included matters relating to the current resources that the family unit had both economic and labour in respect of support for the Applicant. Their mortgage having been paid off it was submitted that they were stable financially in respect of their dwelling, both parents and at least two grandparents were available to provide support.
4. In respect of the Statement of Facts Issues and Contentions (SOFIC) the Respondent submitted that at the close of evidence nothing needed to be abandoned or qualified from that and that the position had not changed. They contended that the swimming lessons are no longer a NDIS funded support and therefore cannot be approved in the current circumstances.

1. In brief reply submissions the Applicant's Agent submitted that they questioned and queried the NDIA's position. The concern being that in their view, the refusal of the requested supports might be more aligned to the financial position of the family rather than the Applicant's disabilities.

1. The Tribunal notes that the Applicant's Statement of Lived Experience prepared by her Agent sets out her ADL's and outlines the difficulties in managing those as well as the behaviours exhibited at various times of the day. The Tribunal has considered these matters in detail which to an extent were expanded upon in the oral evidence at the Hearing. The Tribunal has also considered at some length the video recordings of the Applicant highlighting aspects of her behaviour attributed to aspects of her diagnosed disability.
2. The Tribunal's task in reviewing the decision is to determine whether the requested supports, based on the available evidence, are 'reasonable and necessary' such that they justify the further expenditure of public funds. In reaching this point, the Tribunal must be satisfied that each requested support meets all the criteria in section 34(1) of the NDIS Act and any relevant rules.

1. The Tribunal notes that the Respondent now accepts that the Applicant in her next Statement of Participant Supports (SOPS) should receive a total of 10 hours per week Specialised Home-Based Assistance for a child (in lieu of the requested 14 hours per week). This is additional funding to increase the current the 72 hours per annum (1.4 hours per week flexibly applied as 2 hours a day for two days a week for 12 weeks stepped down to utilise the remaining 24 hours). The Tribunal notes that this falls into the Core Supports category: Core - Assistance with Daily Life.
2. In respect of Capacity Building - Improved Daily Living Skills, the Tribunal notes that the Respondent now accepts that the Applicant in her next Statement of Participant Supports should receive funding for an additional 68 hours per annum of clinical interventions and support with OT increased by 22 hours, psychology increased by 26 hours and an additional 20 hours of Early Childhood Supports. This last item is in addition to the 89.5 hours for Early Childhood Supports previously approved in the current SOPS.
3. The final matter concerns a request that the Respondent include in the Applicant's SOPS funding for specialist swimming lesion, $30:00 per week for 48 weeks per annum under Capacity Building - Improved daily living.
4. The Tribunal also notes that the Respondent continues to accept as the basis of issuing a SOPS that the Applicant does have the disabilities accepted on her NDIS Plan being Autism Spectrum Disorder Level 1.
5. The role of the Tribunal on administrative review is to make the correct or preferable decision. As this is a NDIS Plan Review matter the Legislation and Rules as set out at [12] - [24] above will apply.
6. As noted above the Applicant believes that the requested supports are reasonable and necessary because medical practitioners and allied health clinicians have found and recommended that the increased supports would benefit the Applicant and as such they are deemed reasonable and necessary. The OT report from August 2024 by T Coleman recommends a range of additional supports incorporating what the NDIA eventually accepted as at [75] and [76] above, as well as additional funding for travel, swimming therapy the 14 hours per week total assistance with daily living and assistive technology.
7. I note that the Coleman report refers in their report to much of the evidence being reported to them rather than directly observed. At page 27 of the JTB the following is recorded by the clinician:

Whilst it was not observed directly by the therapist, (mother) and (father) report that (JNLJ) exhibits high levels of dysregulation when at home and in a social setting. Evidence was provided to the therapist by the family that (JNLJ) is constantly in a dorsal vagal nervous system response (complete nervous system shutdown) when in a social setting.

8. An updated report from April 2025 focuses on the impending arrival of another child into the family unit and making recommendations around the Applicant's apparent reaction to her mother's pregnancy. However, coupled with this was the Applicant's Agent's evidence at hearing that since the support worker commenced there had been a marked improvement in the Applicant's overall behaviour at home. Part of the request appears to be based on a desire to enable the Applicant to meet the goal of attending a daycare kindergarten program again of her choosing. The Tribunal notes that at the Hearing the Applicant's Agent gave some evidence about the residual desire or interest of the Applicant in attending pre-school or similar.
9. P Swift Psychologist who authored the Sunny Steps report of 13 December 2023, observed the Applicant in a playground setting with her mother and other children present. This was considered a social setting. The Applicant's reactions appeared consistent with her diagnosis in that she withdrew when other children approached or tried to engage and was more comfortable dealing with adults which entailed her mother and the clinician. Other matters such as the swimming lessons were reviewed by photographs and videos as were the home behaviours which from the descriptions appear to be identical or very similar to the ones in evidence before the Tribunal.
10. The Swift report concludes that funding from the NDIS in respect of early intervention is reasonable and necessary to assist in facilitating the Applicant's social and emotion regulation skills. The other reports have been considered.
11. In respect of the swimming lessons, both the Aqua Stars Swim School letter and the Lake Macquarie City Swim Centre letter refer to individual lessons. The Aqua Stars letter refers to specialised sessions to avoid the sensory distress stimuli which impacts the Applicant. The sessions are one-on-one and aim for the goal of integration into the mainstream classes for the Applicant to swim with her peers.
12. In reaching the correct or preferable decision, I have taken into account all of the evidence and submissions relied upon by both parties. In assessing the reports as to what supports are reasonable and necessary, I am conscious of the Respondent's submissions that the Applicant's reports should be given less weight than they otherwise might because the evidence was not able to be tested at the Hearing. How this situation arose in practice is not entirely clear other than the Respondent's reliance on the email exchanges. Unfortunately, whenever a medical or other expert or professional report or statement is sought to be put before a Court or Tribunal the party leading that evidence must take steps (if requested) to have the author available for cross examination where required. In practice this is not always achievable. However, the consequences of such a position is that the other party can either raise a Jones v Dunkel type submission or broadly argue that the report(s) should, be given lesser or no great weight. I do not draw any adverse inference in respect of the failure to call the authors as witnesses, however for the reasons outline above, the reports are given less weight even though they are expert reports. To do otherwise would be unfair and inappropriate. The reports as clinical tools are assessed on their face and as a result given some weight.
13. In my view, having regard to the changes to the NDIS in early October 2024 noting the matters set out at [13] and [14] above, the request for support in respect of specialist swimming lessons must fail. That is because such support services are no longer considered NDIS Supports as defined in s 34 (1) (f) of the NDIS Act. The focus of the supports in respect of children is not to provide the types of supports that parents would be expected to provide for their young children, but to provide additional supports specifically related to their disability. Schedule 2 of the Transitional Rules sets out the types of supports that are not NDIS supports. That Schedule includes costs in Item 4 that are described in Column 1 as 'day to day living costs' such as 'lifestyle' matters. Column 2 particularises those matters as 'costs associated with recreational sports and activities', including membership costs, venue hire fees, uniforms and footwear.
14. I note the decision of the Tribunal in NPMG and Chief Executive Officer of the National Disability Insurance Agency (NDIS) [2024] ARTA 96 where at [241] - [248] the Tribunal observes:

CONSIDERATION OF REQUEST FOR SWIMMING LESSONS > > 241. NPMQ's parents both gave evidence to the effect that NPMQ loves to go to the swimming pool. They would like him to be supported to attend regular swimming lessons. On the third day of the hearing, NPMQ's mother suggested this might be swimming lessons for "once a week or more, I have no idea".[242] NPMQ's parents are unable to teach NPMQ to swim themselves because neither of them are able to swim. > > 242. The NDIA contends that this is not a "reasonable and necessary support" within the meaning of s 34 of the NDIS Act and in particular, because NPMQ is able to attend regular or mainstream swimming lessons and this is not an expense relating to his disability as per Rule 5.1(b) of the Support Rules. > > 243. As mentioned above, the criterion under s 34(1)(f) of the NDIS Act was amended. For a support to be a "reasonable and necessary support" under s 34(1) it must be an "NDIS support". The Tribunal notes that in Schedule 2 to the NDIS Supports Transitional Rules includes Item 4 which is a support which is not an NDIS support. This Item is described in Column 1 as "Day-to-Day living costs - lifestyle" and particularised in Column 2, as relevant to this case, as being, "costs associated with recreational sports and activities, including membership costs, venue hire fees, uniforms and footwear". Swimming is a recreational activity. The Tribunal considers that the request for the cost of swimming lessons is a not an NDIS support according to Schedule 2 of these rules. The Tribunal concludes that the request for funding to pay for swimming lessons for NPMQ, whether they be individual or group lessons, does not meet the criterion under s 34(1)(f) of the NDIS Act. > > 244. At the hearing, NPMQ's mother submitted as follows about why NPMQ should be funded for swimming lessons:[243] > > First of all, it is a special case for my son because he's got special needs, so he is deprived of any other things like all normal kids. So if they take him to gatherings that he likes, to swimming that he likes, this is very beneficial to him, and to be honest with you, it's very expensive. Half an hour is $80 or more, and if I want to take him to a place whereby he can play with the water, and I barely could even handle him at home. How will I be able to send him to a place whereby he's going to play with water. That's why he has to have trainer to basically supervise him. > > 245. Rule 5.1 of the Support Rules provides that a support will not be funded under the NDIS if it is not related to the participant's disability (Rule 5.1(b)), or relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's support needs. Rules 5.2 of the Support Rules state (as relevant) that the day-to-day living costs do not include additional living costs that are incurred by a participant solely and directly as a result. > > 246. The primary reason why NPMQ's has a need to attend swimming lessons is because his parents are both unable to swim and one of them experiences ears problems and their doctor has advised they do not go in the water. If they were able to swim, they both have time on their hands, being unemployed at the moment and so they would be in a position, like any other parent of a 10-year-old child, to take their child to the swimming pool and to teach them to swim if they were to prioritise this activity for NPMQ. The Tribunal is not satisfied that Rule 5.2(a) applies, so as to exclude the operation of Rule 5.1(b) or (d) in NPMQ's case. Those rules apply to NPMQ and the cost of swimming lessons for NPMQ are excluded from being funded under the NDIS by operation of those rules. > > 247. In conclusion, the Tribunal concludes that the cost of swimming lessons for NPMQ does not meet s 34(1)(f) and so does not satisfy s 34(1) of the NDIS Act. Further, approval of such funds is excluded under Rule 5.2(a) of the Support Rules. > > 248. As an aside, the Tribunal notes that funding will be provided for a support worker assistance in NPMQ's next SOPS to be approved when implementing this Decision. NPMQ's parents are at liberty to engage a support worker who is able to swim and may be willing and able to take NPMQ swimming with them and with one of NPMQ's parents. However, NPMQ's parents will be required to pay for the cost of any swimming lessons and his entry fee to the pool, noting from time to time the evidence revealed that NPMQ may be able to acquire "vouchers" for his participation in this activity for a certain number of lessons each year.

15. Having regard to the matter above, as the provider cost of swimming lessons specialist or otherwise is not an NDIS Support, it cannot be considered reasonable and necessary having regard to the provisions of s 34 (1) (f) of the NDIS Act. In addition, it is difficult to ascertain on the available evidence before the Tribunal how it relates to the Applicant's disability other than that there is a benefit in having a one-on-one lesson having regard to the Applicant's modified behaviours when in the presence of other children. I find that as this is not an NDIS support, that aspect of the application must fail.
16. Turning to the additional hours of support requested noting the matters from McGarrigal there is no doubt that in respect of the early intervention requirements such supports would likely benefit the Applicant. (s 25 (1) (d) of the NDIS Act) and they would qualify as NDIS supports for the Applicant. The question is, however, whether such additional hours are value for money and whether they would replace the support that family would be expected to provide.
17. Section 34 is cumulative in that all of the criteria must be enlivened. It is clear that s 34 (1) (aa) is met in that the support address the participants needs arising from their disability - 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).
18. It is also clear that the s 34 (1) (a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant's statement of goals and aspirations; as well as subsections (b), the support will assist the participant to undertake activities, so as to facilitate the participant's social and economic participation; (d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice; and (f) the support is an NDIS support for the participant might also be met.
19. However, in my view it is less clear that the s 34 (1) (c) and (e) are met.
20. Section 34 (1) (c ) and (e ) provide that:

(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; > > (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;

21. I am not satisfied that on the available evidence before the Tribunal that funding for 14 hours of a support worker per week for assistance with daily life is either value for money when regard is had to all the circumstances of the matter. Nor am I satisfied that it strikes the right balance as to what is reasonable to expect of a family to provide by way of informal supports for a three year old child. In making this observation I am not being dismissive in any way of the challenges and difficulties that the family faces in regulating the Applicant's behaviour and seeking to build capacity through the early intervention stream.
22. Consistent with WRMF at [17] above, I am not satisfied that the full 14 hours funding meets the requirements of reasonable and necessary. As the Court observed the matter links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. Having regard to the s 34 (1) criteria in particular (c ) and (e ) the full amount sought is not consistent with the objects and principles of the NDIS Act as per WRFM.
23. However, the provision of a total of 10 hours a week coupled with the other matters outlined at [75] - [78] appears in my view to strike the right balance. Whilst the Applicant has significant needs, her diagnosis whilst challenging, is not at the extreme end of the spectrum. There is significant family support in a stable, secure and caring home environment. Limitations on extended family to provide significant support whilst noted would be supplemented by the increased support now offered. Having regard to the objects of the NDIS Act the support of an additional 10 hours as well as the significant support which can be flexibly used around behavioural intervention and management as well as improved daily living skills is both reasonable and necessary and strikes the right balance as value for money. Potentially in any scheduled plan review discussion should occur around respite to the extent that carer demands are a legitimate and significant factor.
24. In these circumstances, the Tribunal is satisfied that the following supports are reasonable and necessary for the next 12 months and I make a finding that the following additions to the SOPS meet the s 34 requirements as reasonable and necessary support under the NDIS Act:
25. 10 hours per week Specialised Home-Based Assistance for a child. This is additional funding to increase the current the 72 hours per annum (1.4 hours per week flexibly applied as 2 hours a day for two days a week for 12 weeks stepped down to utilise the remaining 24 hours). The Tribunal notes that this falls into the Core Supports category: Core - Assistance with Daily Life.
26. In respect of Capacity Building - Improved Daily Living Skills, the Applicant should receive funding for an additional 68 hours per annum of clinical interventions and support with OT increased by 22 hours, Psychology increased by 26 hours and an additional 20 hours of Early Childhood Supports. This is in addition to the 89.5 hours for Early Childhood Supports previously approved in the current (existing) SOPS.

1. As a result of the findings above, pursuant to s 105 (c) (ii) of the ART Act, the Tribunal will remit the matter to the Respondent for reconsideration in accordance with the orders below.

The Tribunal, pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth) remits the decision under review for reconsideration in accordance with the following directions:

1. 10 hours per week Specialised Home-Based Assistance for a child. This is additional funding to increase the current the 72 hours per annum (1.4 hours per week flexibly applied as 2 hours a day for two days a week for 12 weeks stepped down to utilise the remaining 24 hours).

2. In respect of Capacity Building - Improved Daily Living Skills, the Applicant should receive funding for an additional 68 hours per annum of clinical interventions and support with:

(c) Early Childhood Supports increased by 20 hours per annum.

3. All other reasonable and necessary supports in the existing statement of participant supports shall be replicated for a period of 12 months until the reassessment date.

4. The management of funding for all other reasonable and necessary supports under the Applicant's plan is to remain the same as the current plan.

5. The date by which the Respondent will review the Applicant's plan is 12 months after the day on which the reasonable and necessary supports are included in the Applicant's statement of participant supports.

[2] National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth).

[3] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

[4] Operational Guideline - Reasonable and Necessary Supports (22 September 2024), p17.