KDKJ and National Disability Insurance Agency (NDIS) [2025] ARTA 454 | Case summary | Zoe

As set out in the new note (a) to section 34, the CEO (and therefore the Tribunal) needs to consider whether the disability requirements or the early intervention requirements are met at the time of deciding whether to approve an SPS. This is not a straightforward exercise. Under the new section 32BA, the CEO is required to notify participants of the impairments which meet the disability or early intervention requirements. As KDKJ became a participant prior to section 32BA there was no requirement to notify her of the impairments which met the disability or early intervention requirements. Without this notice requirement, the records kept by the Agency on access decisions do not go to this level of detail.
This problem is illustrated by the supplementary 'T' documents provided by the Agency in this matter. These are the records held by the Agency that were relevant to KDKJ's access decision. AM made an NDIS access request on 24 June 2019, which was within 3 months of when KDKJ was born. The section of the access request form completed by KDKJ's treating allied health professionals, at that time, recorded KDKJ's primary disability as being 'Significant Global Development Delay. At risk cerebral palsy' and indicated that there were no treatments that were likely to remedy the impairment. This section also specified the areas in which KDKJ would require assistance.[28] A letter dated 25 June 2019 from KDKJ's paediatrician at the time confirmed a diagnosis of 'Global Development Delay in the context of severe global hypoxic brain injury acquired antenatally particularly affecting the basal ganglia ...'.[29]
On 16 July 2019, a NDIS 'Planning Tool - ECEI Family Service and Support Information (FSSI)' was completed. ECEI refers to 'Early Childhood Early Intervention' and this tool was completed by an NDIS early childhood community partner organisation. This tool includes a detailed assessment of the functional impacts of KDKJ's impairments in the areas of physical development, language and communication skills, self-care skills, cognitive development, social skills and emotional development, and hearing.
On 24 July 2019, AF also made an access request by completing the evidence of disability form for the 'NDIS Pathway Hearing Stream: Priority pathway for newly diagnosed children (0-6 years).'[30] This was accompanied by an audiology report dated 1 July 2019 which confirmed hearing loss for KDKJ.[31]
The Agency submits that:

However, none of the supplementary 'T' documents provided indicates whether KDKJ was granted access to the NDIS on the basis of the section 24 disability requirements, or the section 25 early intervention requirements, or which impairments met either or both of the disability and early intervention requirements. There does not appear to be a notice of decision in the documents as would have been required by section 28(2). As the Agency says that KDKJ was granted access on 2 July 2019, it can be assumed that no decision was required in relation to the 'hearing stream' access request made on 29 July 2019. As the Applicant also agrees that KDKJ met the early intervention requirements on the basis of global development delay and permanent impairments arising from cerebral palsy, I am satisfied that KDKJ had impairments which met the early intervention requirements at the time of the access decision. This still tells me little about which specific impairments met the early intervention requirements. This just tells me which diagnosed conditions met the early intervention requirements. A diagnosed condition can have a wide range of impairments as is clear from the GMFCS five-point classification scale mentioned earlier.
Section 32BA(5) allows the CEO to vary a notice of impairments. A decision to vary or not to vary such a notice is a reviewable decision that could be considered by the Tribunal under sections 99 and 103. However, as no notice of impairments has been given in this matter, KDKJ has not been able to request a variation to such a notice. Not surprisingly, more is known about KDKJ's impairments now as compared to when she was 3 months old. But the changes for KDKJ over time have not been assessed by the CEO against the disability or early intervention requirements.
The Tribunal now has to assess whether a support is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements. Knowing which impairments met the early intervention requirements at the time access was granted would have been a good starting point, but the Tribunal does not have this information. I will turn to the current evidence about KDKJ's impairments which was the focus of the resumed hearing.
The Applicant's parents provided a letter dated 18 November 2025 which was cosigned by NN and SP. This letter summarises KDKJ's current conditions related to her cerebral palsy, care requirements and co-morbidities. The Agency arranged for both authors of this letter to provide oral evidence at the resumed hearing. At the resumed hearing, in response to questions from the Agency, NN conceded that the letter was initially sent to her as a draft by AM. NN said that she checked these details provided against KDKJ's health records, made one change, endorsed the contents of the letter, and sent it to SP for co-signing. SP was not aware of AM's involvement in drafting the letter but confirmed that this would not have prevented her signing the letter as the contents were factually correct.
The Agency contends that this letter should be given no weight as:

[5]

It is important to note that, from the guidance above, it is the registered nurse who must decide if a task can be delegated or not, and the registered nurse remains responsible for the care being provided. In this delegated model, the opinion of a registered nurse that is responsible for the care or a participant takes on a considerable significance in two ways. First, their clinical opinion about which tasks can and cannot be appropriately delegated must be given some weight. Second, as they retain responsibility for the care, they would be placed in a very difficult position if an NDIS decision-maker could override their clinical assessment and proceed with a delegated model which a registered nurse did not agree was appropriate. Ethically, I expect a registered nurse would not be able to continue providing care if they were required to deliver this care in a delegated model which they did not consider was safe. That the registered nurse will usually be providing paid nursing services when they are asked to consider whether tasks can be delegated or not also means that a potential conflict of interest will almost always be present. 6. Having heard the oral evidence from RN and having the benefit of her written assessments and recommendations, I was impressed with RN's dedication to providing a high-level of care to KDKJ. Achieving the best outcomes for KDKJ appeared to me to be RN's key motivation in providing her evidence. I accept that RN's does stand to lose remuneration if a delegated model is implemented, and this potential conflict of interest does detract from the weight of her evidence. I also consider that there may have been some 'blurring of the lines' between RN's motivation to care for KDKJ and advocating for a particular outcome for KDKJ and her parents. However, this does not lead me to the conclusion that RN's evidence should be given no weight, especially when it is not contradicted by any other evidence provided by a health professional. 7. I accept RN's evidence that it would not be appropriate to delegate KDKJ's care tasks to a HISW. Based on her direct experience in caring for KDKJ and exercising her clinical judgment as a registered nurse, RN considers that the complexity of KDKJ's health needs, along with the risk of rapid changes that require an immediate response to prevent injury or death, mean that KDKJ's care tasks are not suitable to be performed by a HISW. I note that, in her first letter, RN considered that it was similarly not appropriate for the care tasks to be performed by an enrolled nurse rather than a registered nurse. I accept that the risk to KDKJ's safety is high and that it is appropriate to take a cautious approach, giving full consideration to the need to protect KDKJ from harm.[41]

There are five levels of nursing supports set out NDIS Price Guide: enrolled nurse, registered nurse, clinical nurse, clinical nurse consultant and nurse navigator. I note that an enrolled nurse 'is a person who provides nursing care under the direct or indirect supervision of a registered nurse'.[49]
The rates set out for a HISW (Assistance with Self-Care Activities - High Intensity) ranges from $73.09 per hour at the weekday daytime rate to $162.38 on public holidays.[50] For context, I note this is only marginally more that the rate for a standard support worker which ranges from $67.56 per hour for the weekday daytime rate to $150.10 per hour on public holidays.[51]
The rate for a registered nurse is more expensive than a HISW. These rates range from $119.82 per hour at the weekday daytime rate to $222.16 per hour on public holidays. For context, I also note that an enrolled nurse is more expensive than an HISW. The rates for an enrolled nurse range from $96.78 per hour at the weekday daytime rate to $179.34 per hour on public holidays.[52]
It is not surprising that the Agency would consider that a HISW is better value for money than a registered nurse. A HISW is $46.73 per hour cheaper than a registered nurse at the weekday daytime rate. Expressed as a percentage, a registered nurse is 64% more expensive than a HISW. I would also observe that there seems to be a considerable step-up in the level of skills (and inherent risk) required in the services performed by a HISW as compared to a standard support worker. This is a substantial increase in the potential value of a HISW with only a moderate increase in price.
However, I agree with the Applicant's parents that cost is not the only factor in assessing value for money (the Agency does not suggest that it is the only factor). As set out earlier, the Support Rules state that a decision-maker must consider whether there are comparable supports which would achieve the same outcome at a substantially lower cost.[53] In relation to a needs assessment the Support Rules also say_:_

While a HISW is a comparable support that can be provided at a substantially lower cost, I am not satisfied that a HISW achieves the same outcome as a registered nurse. From the evidence before the Tribunal, I am concerned that the risks to KDKJ's safety are very high. In giving full consideration to KDKJ's best interests and the need to protect her from harm, I am not satisfied that the risks to KDKJ are appropriately mitigated by the provision of a HISW.[54] There is no indication that the Agency has given consideration to the best interests of the child in this matter. There is also no indication that the Agency has assessed the risks and safeguards in relation to KDKJ as required by Rule 4.1(c).
I am not satisfied that a delegated model with most daily activities being supported by a HISW is a lower cost alternative that achieves the same outcome as support being provided by a registered nurse. While the provision of funding for registered nurses is a more expensive option, given the risk to KDKJ if these supports are not continued, I am satisfied that funding for registered nurse supports represents value for money.[55] In reaching this conclusion, I have also had regard to the principle that people with a disability, and their families, should have certainty that people with a disability will receive the care and support they need over their lifetime.[56]
In support of the Tribunal's objective to improve the transparency and quality of government decision-making, I would suggest that the Agency's decision-making would be improved by implementing clear risk assessment procedures. In circumstances such as KDKJ's, before the Agency decides to step-down the level of supports provided to a child, it is important to ensure that any significant risks of harm are properly assessed. This would ordinarily involve identifying the risks, assessing their consequences and likelihood and considering whether these risks can be appropriately controlled through mitigation strategies or other measures.
As I observed in Brown,[57] the Department of Finance has published a Commonwealth Risk Management Policy in support of section 16 of the Public Governance, Performance and Accountability Act 2013.[58] This requires Commonwealth agencies to establish and maintain appropriate systems for the management of risk. Included in the policy is a Risk Toolkit which provides detailed guidance on conducting risk assessments. In my view, the Agency's decision-making would be improved through implementing a structured and transparent risk assessment methodology.

As indicated above, I accept RN's evidence that, due to the level of clinical judgment required, it would not be appropriate to delegate KDKJ's care tasks to a HISW. In reducing the risk of harm to KDKJ, registered nurse supports are likely to be effective and beneficial for KDKJ. The fact that the Applicant's parents manage these tasks when a registered nurse is not available does not diminish the benefits of these tasks being managed by a registered nurse when they are available. That a registered nurse might be able to transfer some skills and knowledge to a HISW does not replace the clinical judgment that a registered nurse is providing. I also note that SP, in her letter dated 2 November 2022, indicates support for KDKJ's registered nursing care.[60]
I have also had regard to the operation and effectiveness of previous plans,[61] and the objective that families should have certainty with respect to supports provided.[62] Registered nurse supports were specifically included in the 2021-22 and 2022-23 plans. The lived experience of the Applicant's parents is a source of information for the Tribunal and this lived experience supports the need for registered nursing care.[63] Overall, I consider that registered nurse supports remain effective and beneficial.
I also note that it is not just that I must be satisfied that registered nurse supports are effective and beneficial, in order to affirm the Agency's decision, I would also need to be positively satisfied that a transition to a delegated model with HISWs is effective and beneficial. As I indicated above, my view is that the risks to KDKJ in making this transition to HISWs have not been fully considered and I am not satisfied that it is safe to do so.
As part of any risk assessment methodology (discussed above) I would suggest that, when the potential consequences involve the risk of death or other severe adverse health outcomes, the Agency should consider whether they have an appropriate level of medical evidence before they make their decision. If a further independent expert opinion is required, this should also be obtained before they make their decision. This is an appropriate risk mitigation strategy that is best implemented by the Agency during its decision-making processes. The Tribunal is not the appropriate forum for the Agency to commence this information gathering.

I am not satisfied that funding 12 hours of registered nurse supports for an additional Saturday and Sunday each month is reasonable and necessary. I consider that it is reasonable to expect KDKJ's parents to provide care on these weekends.[77]
I am satisfied that continuing registered nurse supports, and increasing active overnight registered nurse supports for KDKJ, is reasonable and necessary. Registered nurse supports are necessary to address KDKJ's needs arising from impairments in relation to which she meets the early intervention requirements.[78] Registered nurse supports assist KDKJ to pursue her goals,[79] and to undertake social participation activities.[80] Due to the complexity of KDKJ's care needs and risks to her safety and wellbeing, I am not satisfied that transitioning to a delegated model with HISWs providing care for KDKJ under supervision of a registered nurse is appropriate. In reaching this conclusion I have given consideration to KDKJ's best interests as a child being paramount and the need to ensure KDKJ is protected from harm.[81] Registered nurse supports represent value for money.[82] HISWs are not a comparable support which achieves the same outcome at a substantially lower cost.[83] Due to the level of clinical judgment required, it would not be appropriate to delegate KDKJ's care tasks to a HISW. In reducing the risk of harm to KDKJ, registered nurse supports are likely to be effective and beneficial for KDKJ.[84]
It is not reasonable for KDKJ's parents to provide active overnight support for four nights per week. This sustained lack of sleep presents risks to the wellbeing of KDKJ's parents, and to KDKJ. KDKJ's care requirements are substantially greater than those of other children of a similar age.[85] Active overnight support from a registered nurse for seven nights per week takes into account what is reasonable for families to provide.[86] Registered nurse supports are an NDIS support for KDKJ under Items 12, 14, 16 and 21 of Schedule 1 of the Transitional Rules.[87] Registered nurse supports are not excluded under Item 12 of Schedule 2 of the Transitional Rules. I am satisfied that registered nurse supports for KDKJ are more appropriately funded through the NDIS, and not more appropriately funded though the health system.[88] Sufficient funding will need to be included for the registered nurses to prepare updated assessment reports for the Agency. I do not consider that provision of these supports will impact the financial sustainability of the scheme.[89]

The Agency submits that hydrotherapy and physiotherapy are working towards the same or similar goals using different methods (land-based for physiotherapy and water-based for hydrotherapy). As such the Agency submits that hydrotherapy is a duplication of physiotherapy and cannot be funded under Rule 5.1(c) of the Support Rules because it duplicates other supports delivered under alternative funding through the NDIS. I do not accept this submission.
There is considerable evidence before the Tribunal from KDKJ's treating team that supports both land-based and aquatic physiotherapy, including from KDKJ's orthopaedic surgeon,[96] physiotherapist,[97] and the combined report from her occupational therapist, speech pathologist and physiotherapist as part of the intensive program discussed above.[98] KDKJ's hydrotherapist says that the specific benefits of aquatic physiotherapy are:
- Immersion is excellent for pain relief and relaxation. This is believed to be associated with the effects of water pressure and water temperature on nerve endings, reduced forces on joints, muscle relaxation and suppression of the sympathetic nervous system.
- Improved strength and flexibility, providing opportunities for developing fine and gross motor skills.
- Some children and young people will be able to experience independent movement with the support of the water - this is something they may never experience on land.
- There are also recognized benefits of reducing anxiety, improving quality of life and general wellbeing.[99]
The Applicant's parents are correct that the Agency has not provided any opinion that contradicts the recommendations above. Hydrotherapy was specifically included in the 2021-22 and 2022-23 plans and I have had regard to this and the uncertainty that would be created if hydrotherapy was removed. I also consider that continuity of therapies is in KDKJ's best interests as a child. I am satisfied that hydrotherapy is effective and beneficial for KDKJ and is not a duplication of land-based physiotherapy. I accept that a therapy assistant is appropriate to manage the risks to KDKJ including that the assistant has specific training in pool safety and rescue techniques and use of the pool equipment and transfer methods.[100] As with the other therapies, I agree with the Agency that funding for 42 weeks, as opposed to 50 weeks, is realistic for KDKJ.

This submission from the Agency is concerning. I do not consider that a therapy which is based on enjoyable activities should be precluded from funding. The Agency's Early Childhood Approach[102] incorporates the national guidelines on Best Practice in Early Childhood Intervention.[103] These national guidelines say that 'Engaging children by capturing their interests creates opportunities to sustain learning, supports current competencies and facilitates development of new competencies'[104] and that 'participation in meaningful activities builds on the intrinsic motivators of children and families and is, therefore, more likely to lead to success'.[105]
The lived experience KDKJ's parents is that KDKJ 'thrives' in music and art therapy.[106] In my view, the fact that KDKJ enjoys engaging in music and art therapy is likely to increase the effectiveness and benefits of the therapy. These therapies are recommended and provided by appropriately qualified therapists who have provided reports at pages 59, 128 and 133 of the joint hearing bundle. Music and art therapy were also specifically included in the 2021-22 and 2022-23 plans and I consider this is relevant when having regard to the operation of pervious plans, the need to provide her family with certainty in relation to the supports provided, and KDKJ's best interests in minimising disruptions to her therapies.
The Agency also submits that music and art therapy duplicate the capacity building supports of physiotherapy, occupational therapy and speech therapy and cannot be funded pursuant to Rule 5.1(c). I agree with the Agency that music and art therapy are not specifically referred to as part of the intensive program in the combined report from KDKJ's occupational therapist, speech pathologist and physiotherapist. Rather than the thrice weekly sessions recommended, the Applicant's parents are choosing to include alternating weekly art and music therapy sessions. I consider that this is consistent with the principles relating to participant plans in allowing the Applicant's parents to exercise choice and control,[107] and select tailored and flexible responses to KDKJ's goals and needs.[108] However, as with the other therapies I consider that 42 sessions per year (21 sessions each of art and music therapy) is realistic for KDKJ.

In my assessment, the Agency's conduct of this matter was more consistent with an adversarial approach which was directed to defending their decision, rather than focussing on assisting the Tribunal. As mentioned earlier, I did not find the Agency's submissions on the best interests of the child helpful. By way of another example, when the Applicant's parents resisted arrangements for an independent assessment of KDKJ, the Agency decided not to proceed with an assessment on-the-papers. Noting the submissions made by the Agency regarding RN's lack of independence, it would have assisted the Tribunal to have a properly independent expert opinion. Considerable written records should have been able to be obtained to support an on-the-papers assessment, regardless of whether the Applicant's parents wished to provide nursing shift notes or not. I would also suggest that the Agency should consider whether their conduct in this matter was consistent with good-practices in taking a trauma-informed approach and supporting participants and their families in all their dealings with the Agency.[123]
The Applicant's parents also have a duty to assist the Tribunal, although this is not to the same level as required by the Agency. I do have some concerns with the Applicant's parents' conduct in this matter also. It would have assisted the Tribunal better for the nurse shift notes to be provided and, in my view, the Agency's proposal for these to be copied at an NDIS office at the Agency's expense was a reasonable one. Also, the Applicant's parents' suggestion that they would only agree to an independent assessment of KDKJ if the assessor spent 168 hours at the family home to observe a week of KDKJ's care was not a reasonable condition. It would have assisted the Tribunal to have this independent assessment. An assessment which engaged with each of the registered nurses and observed an example of each shift might have been a reasonable middle ground. I would encourage the Applicant's parents to consider a more co-operative approach in their future dealing with the Agency. I appreciate that the Applicant's parents are impacted by significant trauma and that their communications will be impacted by their daily anxiety and stress, compounded by these extended and repeated disputes with the Agency.
I also observe here that there does appear to be an inherent tension in the circumstances where the Agency wishes to fund services in a delegated model, but the delegate in this model does not agree that this delegation is appropriate. There needs to be a mechanism to resolve this tension, but this mechanism does not seem to be provided for in the current guidelines. A second opinion from a more senior practitioner is a logical option to try to address this.
The CEO is empowered to request such a second opinion under section 36 of the NDIS Act which allows the CEO to request that a participant undergo an assessment or medical examination and to request a participant, or another person, provide information that is reasonably necessary in deciding whether to approve an SPS. In certain circumstances, failing to provide information or undergo an assessment can result in the suspension of a participant's SPS. As indicated earlier, before the Agency makes a decision to transition a participant's care to a delegated model (at least in situations where the participant is a child and risks to the child have been identified) the Agency should seek additional information to satisfy itself that this transition is safe. Section 36 gives the Agency the tools it requires to deal with a situation where a participant does not wish to provide further information or undergo an assessment. It is more appropriate for the Agency to exercise these powers during their original and internal review decision-making processes rather than to try an address these information gaps once the matter is before the Tribunal.

Legislation Cited (13)

Disability Insurance Scheme Act 2013

Disability Insurance Scheme Amendment (Participant Service Guarantee and Other Measures) Act 2022

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

National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018

Review Tribunal Act 2024

Appeals Tribunal Act 1975

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

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

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

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

Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018

Disability Insurance Scheme (Supports for Participants) Rules 2013

Governance, Performance and Accountability Act 2013

Cases Cited (8)

KDKJ and National Disability Insurance Agency (NDIS) [2025] ARTA 454 (16 April 2025)

Brown and National Disability Insurance Agency [2024] AATA 3318

National Disability Insurance Agency v Davis [2022] FCA 1002

Rogers and National Disability Insurance Agency [2022] AATA 2809

RTRH and National Disability Insurance Agency [2022] AATA 205

QDKH v National Disability Insurance Agency [2021] FCAFC 189

In determining whether a requested support meets the criteria in section 34(1) of the Act_, the Tribunal should apply the principle that the best interests of the Applicant are paramount and give full consideration to the need to protect the Applicant from harm, promote the Applicant's development and strengthen, preserve and promote positive relationships between the Applicant and her parents._ > > However, where a requested support does not meet all of the criteria in section 34(1) of the Act_, a finding by the Tribunal that the support would protect the Applicant from harm or promote the Applicant's development or strengthen, preserve and promote positive relationships between the Applicant and her parents does not render the support a reasonable and necessary support for the Applicant._ > > Similarly, a finding by the Tribunal that a requested support was in the best interests of the Applicant would not render the support a reasonable and necessary support that will be funded under the NDIS in circumstances where the support did not meet all the criteria in section 34(1) of the Act_. For example, where the support did not meet section 34(1)(f) of_ the Act because it was not an NDIS support for the Applicant. > > In WWWX and National Disability Insurance Agency [2024] ARTA 285, the Tribunal had regard to the principle in section 5(f) of the Act in determining that, in relation to a requested support to provide respite for the Applicant's parents, sections 34(1)(aa) and 34(1)(a) of the Act were met. However, the Tribunal was not satisfied on the evidence before it that sections 34(1)(c) and (d) of the Act were met in relation to the requested support. In the result, the requested support was not included in the applicant's statement of participant supports. > > In relation to the Tribunal's inquiry as to "how best to give full consideration to those factors" set out in section 5(f)(i)-(iii) of the Act, the Respondent submits that the Tribunal, having fully considered the matters set out in section 5(f)(i)-(iii), should explicitly state in the statement of reasons that it has done so.[20]

While there is no formal onus of proof upon the Applicant, the Applicant must put forward evidence and information sufficient to satisfy the Tribunal that the relevant statutory requirements of the Act are met. If the Tribunal is not so satisfied, the Applicant cannot succeed: Beezley v Repatriation Commission [2015] FCAFC 165 at [68]; HPSC and National Disability Insurance Agency [2021] AATA 727 at [85]; Minett and National Disability Insurance Agency [2024] ARTA 293 at [30]). > > Contrary to the Opening submissions made by the Applicant's father, there is no requirement that the Respondent 'must prove that KDKJ does not require the requested supports beyond reasonable doubt'.[21]

KDKJ and National Disability Insurance Agency (NDIS) [2025] ARTA 454 (16 April 2025)

At a glance

Court

Decision date

Before

Source

Judgment (211 paragraphs)

Legislation Cited (13)

Cases Cited (8)

KDKJ and National Disability Insurance Agency (NDIS) [2025] ARTA 454 (16 April 2025)