Decision: The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:

1. The supports at paragraph 1(a) to (h) replace the Applicant's current supports in their Statement of Participant Supports:
   1. Assistance with Daily Life at the ratio of 1:3 comprised of:
      1. 20 hours per week for 40 weeks of the year at the weekday rate; and
      2. 10 hours per week for 8 weeks of the year at the weekday rate; and
      3. 2 hours per week for 48 weeks of the year at the Saturday rate.

1. Assistance with community, social and economic participation, 3 hours per week for 48 weeks per year at the ratio of 1:1 at the weekend rate.
2. Short Term Accommodation for 28 days per year at a ratio of 1:1 for 14 days and 14 days at the ratio of 1:3.
3. 28 hours per year of speech therapy (inclusive of report writing).
   1. 15 hours per year of dietician support.
   2. 65 hours per year of Behaviour Support inclusive of:
      1. 45 hours of specialist behavioural intervention support; and
      2. 20 hours of behaviour management plan creation and training.
   3. 36 hours per year of support coordination.
   4. $500 for low-cost AT.

National Disability Insurance Scheme - approval of a Statement of Participant Supports - whether requested supports are an 'NDIS support' capable of being included in a Statement of Participant Supports - whether there is sufficient evidence that a requested support is a NDIS support - whether there is sufficient evidence that a requested support is reasonable and necessary

Administrative Appeals Tribunal Act 1975 (Cth); 25, 34E

Administrative Review Tribunal Act 2024 (Cth); 9, 12, 81, 88, 101

Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth); Schedule 16, Item 24

National Disability Insurance Scheme Act 2013 (Cth); ss10, 17A, 24, 33, 34, 48, 49, 53, 99, 100, 103

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

National Disability Insurance Scheme (Getting the NDIS Back on Track) Transitional Rules 2024 (Cth)

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth); ss3.1, 3.2

National Disability Insurance Agency v WRMF (2020) 276 FCR 415; [2020] FCAFC 79

McGarrigle v National Disability Insurance Agency [2017] FCA 308

Re Drake and Minister for Immigration and Ethnic Affairs (no. 2) (1979) 2 ALD 634

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

Operational Guidelines - Applying to the NDIS, as at 10 December 2024;

Operational Guidelines - Principles we follow to create your plan, as at 7 April 2025;

Operational Guidelines - 'Reasonable and necessary supports', as at 28 March 2025;

Operational Guidelines - Short Term Respite, as at 16 October 2025;

Operational Guidelines - Social and recreation support, as at 7 April 2025;

Operational Guideline - Behaviour Support, as at 26 March 2025;

Operational Guidelines - Continence supports, as at 7 April 2025;

Operational Guidelines - Assistive Technology (AT) (equipment, technology and devices), as at 20 December 2023.

1. KYYB is a 9-year-old girl who lives in regional NSW with her mother and 3 siblings who are also participants.
2. KYYB's mother (KM) is the primary care giver for KYYB and her siblings. KM has chronic medical conditions of her own.[1] KYYB's father does not live with the family. He has, at various stages, lived in a different state of Australia to KYYB. At the time of the hearing, it was uncertain what interaction KYYB's father would have with the family and where he would live in proximity to her. [2]
3. What was evident through reading the written materials provided by KM and in listening to her evidence, that despite the multitude of challenges she faces personally in relation to her health and as the sole carer for 4 children with disabilities, she is unwavering in her advocacy for KYYB and she is determined to provide what she considers to be the very best care and support for KYYB.
4. In 2025, KYYB attended the local primary school in class 3-6B.[3] KYYB has commenced in year 4 for the 2026 school year.[4]
5. KYYB was granted access to the National Disability Insurance Scheme (NDIS) on 18 November 2019 as a delegate of the Chief Executive Officer of the National Disability Insurance Agency (CEO, NDIA, the Agency) determined they had met the access criteria specified in s24 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) in relation to impairments attributable to a psychosocial disability.[5]
6. The Agency has advised the Tribunal by email dated 24 December 2025, KYYB was granted access with an effective start date of 18 November 2019 on the basis of a psychosocial disability which, in their system, is described as autism spectrum disorder (Development Dealy (sic) for child under 6 years of age). This description of the basis of access was given an effective end date of 3 January 2022. A reclassification was reflected from 4 January 2022 when the Agency recorded access having been met in relation to the impairment of autism spectrum disorder. This classification remains current on the NDIS record system.[6]
7. On 11 June 2024, the CEO approved a participant's plan for KYYB (the June 2024 plan). This plan included a Statement of Participant Supports (SoPS) made pursuant to s48 of the NDIS Act.[7]
8. On 25 August 2024 KM requested an internal review of KYYB's SoPS in order to seek further supports in relation to her claimed impairments.[8]
9. On 17 October 2024, the Agency affirmed its original decision to refuse funding for these additional supports (the internal review decision).[9]
10. On 11 November 2024, KM lodged an application for review of the internal review decision.[10]
11. On 12 March 2025 the CEO made a subsequent decision and approved a further participant's plan for KYYB (the March 2025 plan). This plan included a SoPS made pursuant to s48 of the NDIS Act.[11]
12. The March 2025 plan is placed before me by operation of s100 of the NDIS Act. For the purpose of this decision the March 2025 plan and the SoPS incorporated within are the focus of my review.
13. The Tribunal has jurisdiction to review the internal review decision under s103(1) of the Act, in combination with s12 of the Administrative Review Tribunal Act 2024 (Cth).
14. KYYB's goals contained in the March 2025 plan, as expressed through her mother, include:
    • to be able to express herself more clearly to enable her to be understood by family members and peers;
    • to continue making gains in her fine and gross motor development;
    • to increase her independence with self-care skills, specifically dressing, feeding, toileting and sleeping;
    • to develop skills to manage her emotions more independently, and safely;
    • to increase her play skills and begin to engage with a range of toys and people; and
    • to increase her attention/concentration to enable her to engage in tasks for longer.[12]
15. The breakdown of the March 2025 plan provided by the Agency includes the following:[13]

Low-Cost AT - Communication Or Cognitive Support x $500

STA And Assistance (Inc. Respite) - 1:4 - Weekday x 10

Assistance with Social, Economic and Community Participation

Access Community Social and Rec Activ - Standard - Weekday Daytime 1:4 6 hours per week for 48 weeks

Behaviour Management Plan including Training in Behaviour

Support Coordination and Psychosocial Recovery Coaches

1. At the commencement of the hearing, KM contended KYYB should also have access under s24 of the NDIS Act for impairments attributable to her psychosocial disability arising from her diagnosed intellectual disability; and the physical disability attributable to microcephaly.
2. At the conclusion of hearing of evidence, the Counsel for the Agency, Ms Costin, advised the Tribunal the Agency made the concession that KYYB meets the access criteria in relation to impairments that are attributable to a further psychosocial disability, intellectual disability (ID). They later provided written closing submissions, where they conceded KYYB meets the requirement of s34(1)(aa) through s25 for a psychosocial disability attributable to her intellectual disability. They have not identified the impairments which they concede KYYB exhibits, other than submitting ID and ASD have similar or identical impairments.[14] KM did not make any submission which is contrary to this submission.
3. The Agency have not provided any submission in relation to why they are not satisfied KYYB meets the access criteria under s24 and otherwise, contends KYYB does not meet the access criteria for microcephaly.
4. At the conclusion of the hearing, in their written Closing Submissions, the Agency contended the reasonable and necessary supports for KYYB, included[15]:
   1. 14 days of Short Term Accommodation Respite at a 1:3 ratio;
   2. 18 hours weekly of support worker assistance for self-care activities at the weekday daytime rate for 10 weeks at the 1:3 ratio (to share with the Applicant's two other siblings); and
   3. 15 hours of dietician support (inclusive of report writing)
5. In addition, the Agency contends the additional supports in the current plan are also reasonable and necessary:[16]
   1. $500 for low-cost assistive technology;
   2. Assistance with Social, Economic and Community Participation being 6 hours per week for 48 weeks at the 1:4 ratio;
   3. 90 hours per year for therapy that can be used flexibly for occupational therapy, physiotherapy and speech therapy;
   4. 65 hours of behaviour support; and
   5. 36 hours for support coordination level 2.
6. KYYB's mother contends KYYB should be granted supports for her conditions of ID and microcephaly, in addition to the psychosocial disabilities. She contends the impairments in relation to microcephaly include fatigue and seizures.[17]
7. In addition, KM contends the following supports are reasonable and necessary:
   • 20 hours per week for support worker assistance with self-care activities Monday to Friday at a 1:1 ratio; 4 hours per week for support worker assistance with self-care activities on Saturday at a 1:1 ratio;
   • 4 hours every Public Holiday for support worker assistance with self-care activities at a 1:1 ratio;
   • 4 hours per week for Community, Social and Economic Access at the weekday rate at a 1:1 ratio;
   • 28 days of Short Term Accommodation Respite at a 1:1 ratio;
   • 37 hours for an occupational therapist;
   • 60 hours for a speech pathologist;
   • 40 hours for physiotherapy;
   • 90 hours in total for Specialist Behavioural Intervention;
   • 70 hours of support coordination;
   • 30 hours for dietician;
   • Funding for Kukini Stroller ($4,330);
   • $1,000 for low-cost assistive technology (AT);
   • Continence products ($129.90); and
   • Disability related health consumables ($370.80).
8. The written and oral evidence before me references migraines and headaches having a significant impact upon KYYB's wellbeing, school attendance and day-to-day activities. The Tribunal notes KM stated during the hearing that she did not seek for KYYB to obtain access to the Scheme specifically for those conditions. In her written closing submission, she stated:

"during the hearing headaches and migraines were talked about at length. I had previously advised on many occasions that support was not being requested for the chronic pain condition. If the member deems this acceptable to be added to her NDIS plan for KYYB to receive the reasonable and necessary supports, I am not against this."

1. The Tribunal notes the Agency was provided with an opportunity to respond to the Applicant's written closing submission but did not wish to make any further submissions beyond those contained in their email dated 9 February 2026 which contended:

"...the Respondent notes that, to the extent that the Applicant's submissions contain any new evidence not provided prior to or at the hearing, the Respondent asserts that the Tribunal should not take this into account in its decision as the Respondent has not had the opportunity to test this evidence at the hearing."

1. I will address the contention in relation to new evidence later, however, at this point it is important to note it is not possible for the Tribunal to ignore the fact that KYYB suffers from pain as an impairment of her headaches/migraines as indication of her experiencing headaches/migraines is throughout the evidence. The Tribunal will be considering the reasonable and necessary supports for KYYB as a whole person and will need to consider the impact of pain arising from migraines/headaches on KYYB as they are clearly debilitating and have a significant impact on KYYB.

1. The objects of the NDIS Act, and the principles guiding actions under the NDIS Act, are set out in ss3 and 4. In giving effect to the objectives of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.[18]
2. Chapter 3 of the NDIS Act provides the statutory framework for individual plans under which NDIS supports will be funded for participants.[19] Section 17A details principles which require consideration when performing functions and exercising powers under Chapter 3 of the NDIS Act. The preparation, variation, reassessment and replacement of a participant's plan, and the management of funding for supports under a participant's plan, should so far as reasonably practicable be guided by principles relating to plans set out in s31. A participant's plan must include the participant's statement of goals and aspirations and SOPS.[20]
3. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act) commenced on 3 October 2024.[21] The Amending Act made a range of amendments to the NDIS Act. Those amendments included, but were not limited to, a definition of 'NDIS support' at s10, an amendment to s33(5) which prescribes what is required when deciding whether to approve a SOPS, amendments to s34 which sets out criteria which must be satisfied in relation to reasonable and necessary supports, and amendments to ss43 and 44 regarding plan management. Those provisions, as amended, apply to KYYB and any approval or variation of KYYB's SOPS.[22]
4. In deciding whether to approve a SOPS, the CEO or the Tribunal on review, must:

(a) have regard to the participant's statement of goals and aspirations; and

(b) have regard to relevant assessments conducted in relation to the participant; and

(c) be satisfied as mentioned in s34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and

(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of s35;

(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and

(f) have regard to the operation and effectiveness of any previous plans of the participant; and

(g) have regard to whether s 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.[23]

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: (emphasis added)

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

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

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

1. 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.

1. Guidelines published on the NDIS website contain information about what the Respondent considers when making decisions under the NDIS. These are essentially policy documents. Unless Operational Guidelines are inconsistent with the provisions or objects of the legislation, the Tribunal will take these into account unless there are cogent reasons not to.23
2. The Operational Guidelines relevant to this review are:
   • Operational Guidelines - Applying to the NDIS, as at 10 December 2024;
   • Operational Guidelines - Principles we follow to create your plan, as at 7 April 2025;
   • Operational Guidelines - 'Reasonable and necessary supports', as at 28 March 2025;
   • Operational Guidelines - Short Term Respite, as at 16 October 2025;
   • Operational Guidelines - Social and recreation support, as at 7 April 2025;
   • Operational Guideline - Behaviour Support, as at 26 March 2025;
   • Operational Guidelines - Continence supports, as at 7 April 2025;
   • Operational Guidelines - Assistive Technology (AT) (equipment, technology and devices), as at 20 December 2023.

1. The substantive hearing of the application was conducted by video on 16 and 17 December 2025.
2. At the hearing KYYB was not legally represented and was represented by her mother KM, who was also supported by the applicant's grandmother. The respondent was represented by Ms A Costin, of Counsel instructed by Ms J Thomson of Moray and Agnew lawyers.
3. During the substantive hearing the evidence before the Tribunal included:
   • Joint Hearing Bundle containing numerous medical and allied health reports and information in relation to the applicant's health conditions;[24]
   • Supplementary Joint Tender Bundle containing summonsed materials from "P-L" Health Service and "C" Street Medical Centre;[25]
   • Further Supplementary Joint Tender Bundle containing quotations for assistive technology and further medical records;[26]
   • Applicant's Representee Reply to Statement of Facts, Issues and Contentions.[27]

After the conclusion of the oral evidence, the applicant filed further evidence:

• School report - semester 2 report[28]

1. After the conclusion of the hearing of evidence, at the request of the Tribunal, the respondent filed:
   • A breakdown of the applicant's current plan[29]
   • NDIS Operational Guide - Applying to the NDIS as at 10 December 2024[30]
   • Details of the conditions the applicant was accepted in the Scheme in relation to;[31]
   • Written closing submissions dated 23 January 2026.[32]
2. The Applicant also filed written closing submissions dated 2 February 2026.[33]
3. As referred to above, the Agency was provided with an opportunity to respond to the Applicant's written closing submission but did not wish to make any further submissions other than to contend the Tribunal should not take this into account in its decision as the Respondent has not had the opportunity to test this evidence at the hearing.
4. The Tribunal agrees with the contention of the Respondent, in that any new evidence contained in the Applicant's Closing Submission will not be considered in the Tribunal's consideration of this review as it would be procedurally unfair to allow evidence into consideration which has not been tested during the hearing process.
5. Accordingly, any new evidence included in the Applicant's Closing Submission, including any evidence in relation to changes in KYYB's function post the conclusion of the school year, will not be considered as part of this decision.
6. The Tribunal heard oral evidence from:
   • KM;
   • Ms Helen Rowbotham, occupational therapist; and
   • Associate Professor Michael McDowell (Paediatrician).
7. I have considered all the written evidence filed with the Tribunal and provided in the exhibit bundles, the oral evidence at the hearing and the parties' closing submissions. In my decision I will refer to particular aspects of the evidence. The fact that I do not refer to all parts of the evidence does not mean that I have not taken all evidence before me into account in reaching my decision.

1. All references to legislative provisions are a reference to the NDIA Act, unless otherwise specified.
2. The Respondent draws my attention to the cases of Clayton,[34] Davis[35] and Foster[36] in relation to my consideration of the reasonable and necessary supports for KYYB. In summary they contend:
   1. KYYB may be diagnosed with other conditions which impact upon their current physical functional capacity, however they still have to meet the relevant criteria under s24 or s25 of the Act.[37] I agree with this contention.
   2. Regarding the concept of impairment, focusing on the severity and permanency of its effects, must justify the provision of reasonable and necessary supports. This assessment is functional and multi-faceted, requiring precise evaluation of what a person can or cannot do, based on both personal and clinical evidence. The impairment must be clearly linked to the participant's eligibility for the Scheme.[38] I further concur with this contention.
3. When considering whether a support is reasonable and necessary, Senior Member French in Forrest states:[39]

Having regard to the current state of the law, the questions that must be asked in this review, and the sequence in which they must be asked and answered is as follows:

(a) Are the supports that remain in dispute NDIS Supports as defined.

If the answer to this question is "no" with respect to any of the supports in dispute, that support can no longer be considered for approval in the Applicant's SoPS because it cannot meet the requirement of s 34(1)(f).

If the answer to (a) is "yes" with respect to any of the supports in dispute, then that support can be considered for approval in the Applicant's SoPS if it is a support that is necessary to address needs of the Applicant that arise from an impairment in relation to which she meets the disability requirement. Therefore:

(b) What are the Applicant's permanent impairments that result in substantially reduced functional capacity to undertake any of the activities of communication, social interaction, learning, mobility, self-care and self-management, and which affect her capacity for social or economic participation?

(c) Do any of the supports in dispute meet the needs of the Applicant arising from an impairment in relation to which she meets these disability requirements?

If any of the supports in dispute do not meet the needs of the Applicant arising from an impairment in relation to which she meets the disability requirements then they cannot be considered for inclusion in the Applicant's SoPS because they cannot meet the requirements of s 34(1)(aa).

(d) If the answer to (c) is "yes" then ask whether the support in dispute meets the requirements of s 34(1)(a), (b), (c), (d) and (e) and Rule 7 of the Miscellaneous Provisions Rules.

Issue Number 1 - Are the supports NDIS supports for KYYB?

1. To consider s34(1)(f) the Tribunal needs to determine whether the supports being contended for by the participant are NDIS supports. A support will be an 'NDIS support' if the support is declared to be one under the NDIS rules made for the purposes of s10 either in respect of all participants or prospective participants or a specified class of participants or prospective participants.[40] Conversely, the NDIS rules may also declare that a support is 'not an NDIS support' either in respect of all participants or prospective participants or a specified class of participants or prospective participants.[41]
2. Relevantly, the Support Rules designate, by operation of Rule 5 and by reference to Schedules 1 and 2 of those Rules, those Supports that are "NDIS supports" and those that are "generally not NDIS supports" for the purpose of s10 of the NDIS Act.
3. The question of whether the supports sought by the KYYB in this application are NDIS supports is not in dispute. I am satisfied each of the supports sought are NDIS supports for the purpose of s34(1)(f) of the Act.

Issue Number 2 - s34(1)(aa) - Are the supports necessary to address the needs of KYYB arising from an impairment in relation to which she meets the disability requirements (see s24) or the early intervention requirements (see s25)?

1. To consider this question the Tribunal first needs to consider the impairments which KYYB currently meets the access criterion under s24 or s25 at the time at which the supports are considered.
2. Section 24 of the NDIA sets out the following requirements to be met:

(1) A person meets the disability requirements if:

(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or the person has one or more impairments to which a psychosocial disability is attributable; and

(b) the impairment or impairments are, or are likely to be, permanent; and

(c) the impairment or impairments result in substantially reduced functional capacity to undertake one or more of the following activities:

(d) the impairment or impairments affect the person's capacity for social or economic participation; and

(e) the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime.

(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the variation.

(3) For the purposes of subsection (1), an impairment or impairments that are episodic or fluctuating may be taken to be permanent, and the person may be taken to be likely to require NDIS supports under the National Disability Insurance Scheme for the person's lifetime, despite the episodic or fluctuating nature of the impairments.

(4) Subsection (3) does not limit subsection (2).

Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).

Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

(1) A person meets the early intervention requirements if:

(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or

(ii) has one or more identified impairments to which a psychosocial disability is attributable and that are, or are likely to be, permanent; or

(iii) is a child who has developmental delay; and

(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability; and

(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:

(i) mitigating or alleviating the impact of the person's impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or

(ii) preventing the deterioration of such functional capacity; or

(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person's carer; and

(d) the CEO is satisfied any early intervention supports that would be likely to benefit the person as mentioned in paragraphs (b) and (c) would be NDIS supports for the person.

Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.

(1A) For the purposes of subparagraph (1)(a)(i) or (ii), an impairment or impairments that are episodic or fluctuating may be taken to be permanent despite the episodic or fluctuating nature of the impairments.

(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person's impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.

Note 1: The time at which a requirement in this section needs to be met is the time the matter falls to be determined. For an access request, that time is the time of considering the request (see paragraph 21(1)(c)).

Note 2: National Disability Insurance Scheme rules may be made in relation to this section under subsection 27(1).

1. The Agency concedes KYYB meets the access criteria for ID under s25 of the Act and has been accepted into the Scheme in 2019 in relation to her ASD. They did not identify the impairments they concede, other than to contend "intellectual disability and ASD appear to be difficult to differentiate theoretically but present some similar or identical impairments."[42]
2. I have considered the evidence before me and find KYYB has been diagnosed with ASD and ID and they result in intellectual disabilities. I further find the impairments KYYB suffers from relating to her intellectual disabilities to include:
   1. Sensory overload and processing difficulties;
   2. Regulating her emotions;
   3. Articulating her feelings;
   4. Expression of written and spoken language;
   5. Sustaining attention;
   6. Memory;
   7. Cognitive flexibility;
   8. Judgement;
   9. Problem solving;
   10. Impulse control; and
   11. Onset of sleep.
3. Cognitive fatigue is an impairment of ID that has been identified in an unidentified information sheet contained in the joint tender bundle.[43] This information sheet has not been referred to in the hearing or in the submissions of the parties and I am unable to identify the author of the information sheet beyond it appearing to have been sourced from the website "raisingchildren.net.au". I cannot place any weight on this information due to its unclear origins, nor was not tested as part of the submissions made to me.
4. As the Agency has contended, I find trying to determine whether there are any impairments which are not the result of either ID or ASD would be artificial. The medical evidence before the Tribunal does not separate them clearly and accordingly, it is my view the impairments are relevant to both ID and ASD. I find KYYB has a disability that is attributable to intellectual impairments and satisfies s24(1)(a).
5. As the Agency contends KYYB meets s24 for ASD and s25 for ID, I consider they do not dispute the permanence of KYYB's intellectual impairments. I am likewise satisfied that s24(1)(b) is met.
6. At this point I am to consider whether KYYB would meet the requirements of s25 in relation to ID as contended by the Agency. I summarise this point of distinction between s24 and s25 as a requirement to be satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person's future needs for supports in relation to disability;[44] and being likely to benefit the person in the 4 areas defined in s25(1)(c).
7. As there is no submission by the Agency in support of their contention in relation to s25 factors I have considered the distinction between the two sections.
8. S24(1)(c) requires the Tribunal to consider whether KYYB's impairments result in substantially reduced functional capacity to undertake one or more of the following activities:
   1. Communication
   2. Social interaction
   3. Learning
   4. Mobility
   5. Self-care
   6. Self-management.
9. The parties did not make any submissions directly to the application of the evidence to this aspect, and I note there is no contest by the Respondent in relation to KYYB meeting s24(1)(c) in relation the impairments arising from KYYB's ASD.
10. The Agency has contended in relation to the application of s24(1)(c) the Tribunal needs to first consider the impairments or impairments resulting in substantially reduced function capacity. They further contend multiple permanent impairments are properly considered together which, they contend, is consistent with the Operational Guidelines:[45]

If you have more than one impairment, we will consider them together, to see if they substantially reduce your functional capacity.

1. I agree with this contention and confirm for the purposes of the consideration of s24(1)(c) I have considered KYYB's impairments arising from ASD and ID.
2. The report of Ms Olivia Mulholland, Speech Therapist dated 24 February 2025,[46] reported she had assessed KYYB through a number of assessment tools. In final summary Ms Mulholland stated,[47] KYYB is a 9-year-old girl who presents with:

1. She also was of the opinion KYYB required more support than other people her age when she leaves the house. She needs support to plan an outing, get ready for the outing, travel safely in the car, visit a familiar low structured environment such as a friend's house, or visit a public space such as shops or a park.[48]
2. Further KYYB's behaviour practitioner, Ms Ryan also conducted a number of assessments before writing her report.[49] She identified a number of behaviours of concern including KYYB exhibiting aggression, destructive behaviours, selective mutism and self-harm threats, often triggered by routine disruptions, transitions or unmet expectations_._
3. Ms Rowbotham, KYYB's occupational therapist also conducted clinical testing and in summary, she is of the opinion KYYB's functional ability is significantly impacted by both physical and emotional health conditions.[50]
4. Dr McDowell notes in his report "areas of difficulty like to relate arise from ASD/ID are her language, learning capacity, limited attention control and general sensitivity. These are exacerbated by limited opportunity to learn." [51]
5. I find the reports confirm KYYB's substantially reduced functional capacity in the activities of communication, social interaction and self-management within s24(1)(c) for the purpose of considering s34(1)(aa).
6. I note again the Agency has not made any contention that KYYB does not meet the criteria under s24(1)(d) in relation to ASD. I am likewise satisfied she meets s24(1)(d) supported by the evidence above in relation to testing undertaken by KYYB's treating practitioners.
7. The Agency's Guidelines provide some guidance in relation to the impairments affecting the person's ability to work, study or take part in social life when considering s24(1)(d).[52] I am satisfied the evidence of the treating practitioners, particularly Ms Ryan and Ms Mullholand demonstrates that KYYB's impairments arising from both ID and ASD impact her ability to study and take part in a social life. While I accept the Agency's contention broadly that KYYB's lack of attendance at school impacts her ability to study, I am satisfied the evidence before me supports her impairments including her ability to regulate her emotions, cognitive flexibility and memory all impact her ability to study and to participate in a social life.
8. I am satisfied that KYYB's impairments arising from ASD and ID affect her capacity for social and economic participation within the meaning of s24(1)(d).
9. Finally, addressing s24(1)(e), the Agency has not made any contention that KYYB does not meet the criteria under s24(1)(e) in relation to ASD. I am satisfied KYYB will be likely to require NDIS supports under the National Disability Insurance Scheme for her lifetime relevant to both her ASD and ID.
10. For completeness, I find KYYB meets s24 for the purpose of s34(1)(aa) in relation to the impairments arising from her ASD and ID.

1. KM does not specifically identify the impairments she contends arise from KYYB's microcephaly in her written evidence, however from her oral evidence it is understood she contends them to be fatigue and seizures.[53] From her evidence as a whole, it appears KM contends the microcephaly, ID and ASD are interlinked.
2. The Agency has not identified any impairments it considers arise from the microcephaly and their contention is more generalised, in that it does not meet the criterion required for s24 or s25.
3. I note that an information sheet[54] similar to the one I have addressed above in relation to ID has been placed before me. For the same reasons I have placed no weight up this document.
4. Ms Rowbotham, occupational therapist, states in her updated report "Microcephaly, characterised by an abnormally small head and brain, often leads to global developmental delays and ID. Microcephaly is also a risk factor for both ASD and ADHD, due to altered brain growth which causes social communication deficits, attention and executive function difficulties as observed in KYYB."[55]
5. Dr McDowell opines in relation to KYYB's fatigue "As a doctor I find it difficult to reconcile that problem of such magnitude has so little information about possible causes that have been considered/excluded."[56]
6. The NDIS Operational Guideline - Applying to the NDIS (the Access Guidelines) contains Guidelines a decision maker ought to take into consideration when considering whether a prospective participant meets the criterion under s24 and s25 of the NDIS Act. Relevant to this review, the Access Guidelines contain annexures which give more detailed guidance in relation to particular conditions. List D provides for "Permanent impairments/Early intervention, under 7 years. No further assessment required." Within this list is a sub hearing "Congenital conditions - cases where malformations cannot be corrected by surgery or other treatment and result in permanent impairment." Within this category, microcephaly is identified. Unhelpfully, the Guideline does not identify the impairments it considers would found their contention that it would meet the requirements for permanency.
7. The Agency were invited to address the Tribunal in relation to their contention as to how the Tribunal may consider this aspect of the Guideline, and they did not do so.
8. Whilst the guidelines consider permanence, I remain required to consider the impairments which lead to the disability before I can consider permanence. Dr Serov in his evaluation in his report appears to consider any seizures as a consequence of KYYB's migraines. There was no opportunity to test or expand on this evidence as Dr Serov was not called as a witness.
9. There is no dispute in relation to the diagnosis of microcephaly and is specifically noted as a diagnosis in 2021 by Dr Aguirre, Consultant Paediatrician.[57]
10. As the impairments which are particular to microcephaly have not been clearly articulated within any of the clinical evidence before me, I am unable to find KYYB meets the requirements of s24(1)(a) in relation to microcephaly.
11. As the criterion of s24(1) are cumulative, I will not continue to address the criteria further in relation to the consideration of the impairments arising from microcephaly.

1. The evidence before the Tribunal indicates KYYB suffers pain from the migraines/headaches which she has regularly.
2. The evidence before the Tribunal in relation to this review has focused upon whether the migraines are an impairment which is associated with ASD, which at the commencement of the hearing was the only set of impairments KYYB had been considered to meet the access criteria for. To that end the Agency's contention is the migraines are not linked to KYYB's ASD and, rather, there is a family history of migraines.[58]
3. The Tribunal notes the migraines were not separately contended by KM to be an issue for the Tribunal's consideration and was included by KM in a comment in her closing written submission as a result of questions arising during cross examination.[59] For the reasons provided above, I consider it is necessary to continue to address the impairments arising from KYYB's migraines/headaches.
4. Dr Joshua Serov, Paediatrician at the Western NSW Local Health District reported on 11 June 2024:

"Regarding KYYB's migraines, the symptoms she has she becomes red in the face, she won't talk and her eyes hurt. She also squeezes her head and becomes light sensitive. The year previously she was having slight hallucinations and KM advises that Intuniv was reduced at this time but is stable at the current dose of 2mg. KYYB has around 3 to 4 migraines per month which can increase when there is stress and has been affecting her school attendance. KYYB had no history of seizures associated with these migraines or separately.[60] ...confirmed with KM that KYYB has no symptoms of seizure like activity.[61] Given KYYB is well known to a Neurologist Dr Kariyawasam I will seek further advice if an EEG would be beneficial to investigate for epileptic encephalopathy."[62]

5. The report of Dr Didu Kariyawasm, paediatric neurologist states:[63]

KYYB has a history of headaches, occurring at least by the age of 5y. She would not eat, lie down in a dark room and express nausea. She has associated vomiting with the pain. She has had six episodes to hospital for pain relief and intravenous antiemetics. The pain is felt at the back of the head, radiating to the front and to the eyes. The duration of headache is 1-3 days with recovery slowly over the third day. She will wake with headache (within one hour of waking) with headache four out of seven days. With immediate pain relief combined paracetamol followed one hour later with ibuprofen there is some relief of headache, preceded by maxalon or ondansetron (ondansetron more favourable), with some effect and relief over 24 hours.

1. In his report of February 2025, Dr Kariyawasam stated that KYYB had been discharged from the neurosurgical service and they were working with her medications for her migraines.
2. It is also noted through the evidence before the Tribunal there is a family history of migraines and KM has genetic migraines.
3. Dr McDowell gave evidence there is no direct link between KYYB's ASD and migraines although ASD-related stress may increase her migraines.
4. I find that KYYB has a disability arising from a sensory impairment, namely pain which arises from her migraines. Accordingly, s24(1)(a) is met.
5. However, I am unable to find s24(1)(b) is met in relation to permanence from the evidence before the Tribunal. I am not satisfied the evidence supports there is no known, available and appropriate treatment for KYYB in relation to her sensory impairment of pain.
6. As the criterion of s24(1) are cumulative, I will not continue to address the criteria further in relation to the consideration of the impairments arising from migraines/headaches.

1. As I have found the impairments for which KYYB meets s24 are limited to those arising from ASD and ID, I will confine my consideration in relation to the reasonable and necessary supports to those impairments.

1. KYYB, through her mother, contended KYYB requires 4 subcategories of support worker assistance with self-care activities at a ratio of 1:1:
   1. Assistance with self-care activities:
      1. 20 hours per week paid at the weekday rate;
      2. 4 hours per week paid at the Saturday rate; and
      3. 4 hours every public holiday paid at the public holiday rate.
   2. 4 hours per week for community, social and economic access paid at the weekday rate.
2. The Agency contends that 18 hours per week paid at the daytime rate in the ratio of 1:3 for 40 weeks of the year is sufficient to assist KYYB to attend to her self-care needs. They contend when KYYB is not experiencing migraines she is mostly independent with her self-care, and needs little assistance beyond prompting, and the support required can be achieved at the higher ratio shared with her siblings.[64]
3. KM confirmed that she is not satisfied with the position of the Agency as she contends KYYB needs 1:1 support worker assistance to get ready for school in the morning and for assistance when she returns from school in the afternoon. During oral evidence, she proposed the support worker would usually assist for 2 hours in the morning and again in the afternoon five days per week equalling 20 hours per week. Further, she contends the level of support required is at the 1:1 ratio rather than 1:3 as contended by the Agency.[65] KM contends "while most supports needed for the 3 life long disabilities that is being requested are provided by the same therapists and specialists, this increases the amount of support needed for the impairments from ASD, ID and Microcephaly."[66]
4. KM relies upon the report of Helen Rowbotham dated 10 September 2024 and updated 3 March 2025.
5. KM explained to the Tribunal through her carers statement,[67] response to the Respondent's State of Issues Facts and Contentions[68] and via her oral evidence that KYYB needs assistance with her necessities of daily living. KM stated that KYYB is capable of doing things such as brushing her teeth and going to the toilet on her "good days" but on her bad days she is so incapacitated by her migraines that she is not able to care for herself even when prompted to do so.[69] Even on good days, she also states that KYYB needs assistance with dressing and supervision when in the shower or bath as KYYB takes risks or forgets to wash areas of her body. She is unable to wash her hair herself due to sensory needs and coordination.[70]
6. KYYB requires her food to be easily eaten with a fork or spoon, she is unable to cut and prepare her own food. She will easily become distracted at mealtimes when eating with other children and needs constant supervision and reminders to eat. She still requires assistance food packaging for snacks during the day.[71]
7. During oral evidence, KM confirmed KYYB was unable to attend school regularly. This is supported by the School Report showing that KYYB had been absent for 41 whole days and 7 part days during the second semester of the 2025 school year.[72]
8. KM explained during oral evidence KYYB says the "world hurts" when she has a migraine including, she is dizzy and her eyes hurt. During the hearing KM was asked what KYYB would require assistance with during a day she had a migraine, given the debilitating nature of her condition. KM advised support workers would assist by collecting KYYB's school clothes, pack her lunch and assist to ensure KYYB could attend school later that day if she was able to once she had rested. KM suggested the support workers would still come in the morning and be a second set of eyes to help encourage KYYB to get moving. KM explained the support worker helps KYYB get up every morning and have her milk and sit at the table and thereafter what is to occur is determined. When it is clear KYYB is unable to go to school with a migraine then the role of the support worker varies depending upon KM's ability to attend to KYYB's siblings and if KM is needed to attend to their needs or behaviours, the support worker will lay KYYB down in another room, get her milk and settled.[73]
9. On her bad days, KM states:

1. KYYB wakes up and ignores or refuses any communication, eye contact or touch. Will only point to objects she is wanting/needing if close by otherwise gets upset while you guess.

1. KYYB yells, verbally/physically abusive or throws objects constantly at anyone who tries to assist and communicate with her if not ready. 2. KYYB refuses food and demands her Kid Essentials supplement drink when fatigued or has a migraine. 3. KYYB is easily triggered by others or noise and will cry, yell, throw things, physically harm others or herself and damage items or the family home. 4. KYYB will pick up random items and throw them to break them. 5. These days are unpredictable and KM states she must be hypervigilant, leaving everyone on edge and exhausted. 6. There is school refusal and meltdowns when trying to get KYYB into the Support Worker's car to attend School, and she sometimes gets so upset it is bringing on more migraine attacks. KYYB's Support Worker requires assistance from another person most of the time to get her out of the car at school. 7. KYYB will not participate in therapies if feeling tired or in a bad mood and requires a lot of support and encouragement from KM or teachers. 8. KYYB will have to be carried to her room or lounge when she has a migraine attack or has had medication for her migraine attack making her sleepy. 9. KYYB needs full assistance to get changed and with daily hygiene tasks when having a bad day. 10. KYYB cannot be taken to the shops or high traffic areas requiring KYYB to walk a distance over a few metres, as KM is unable to carry her anymore or lift her in a trolley post surgery. 11. KYYB cannot attend town events or family events/outings or community activities several times during the week. 12. KYYB has become socially isolated and has few friends that she tolerates and interacts with.[74] 13. KM also has to check on her temperature as KYYB is unable to regulate her own temperature or communicate her needs.[75]
2. When KYYB is at school, KM is able to prepare the evening meals in advance as it is not possible to care for KYYB with 1:1 support, cook 2-3 different meals and care for 3 other children who have substantial support needs.[76]
3. KYYB requires KM to administer medication several times a day, and requires constant supervision and assistance to take her medication and preparation to prevent an outburst of emotions.[77]
4. As part of her oral evidence when asked, KM agreed that the support worker's role is to assist to build KYYB's capacity and not to do the activities for KYYB.
5. KM did not agree with the evidence of Ms Rowbotham in her report[78] where, in her opinion, when KYYB does not have a migraine, KYYB needs limited support other than verbal prompting with most of the activities. KM stated that when KYYB is exhausted she is not able to shower or toilet at all without KM's physical assistance. She also did not agree that visual and written prompts around the house for daily activities would assist. This is inconsistent with the oral and written evidence of Ms Rowbotham who opined in oral evidence KYYB needs verbal prompting to undertakes tasks of daily living. She went on to explain since the time of her updated written report (3 March 2025) that she had worked with KYYB and had made visual prompts around the house to remind KYYB to undertake tasks such as toileting, showering and morning and afternoon routines and they were being used by KYYB and her support worker. Ms Rowbotham went on to agree, when questioned in cross examination, that KYYB does not need 1:1 ratio support. She was of the opinion a 1:3 ratio would be sufficient to provide the prompting. She also advised that if KYYB was not at school full time that 18 hours per week of support worker assistance would be appropriate.
6. Ms Rowbotham was of the opinion KYYB required support worker assistance for the entire week, including when the family is together.[79]
7. The report of Ms Young recommends support worker assistance to assist KYYB with activities of daily living for 5 hours per day 5 days per week to assist with personal care, eating, dressing and grooming.[80] I accept this report is now a number of years old, however, there is nothing within the evidence before me which convinces me there has been a substantial improvement in KYYB's capacity to undertake these activities.
8. I am in no doubt that KYYB does have variable needs depending on how she is impacted by her various disabilities and diagnosis. I am persuaded by the evidence of Ms Rowbotham the ratio of 1:3 would be adequate to support KYYB in her daily living tasks. I am not persuaded that 1:1 support is required or would be beneficial for KYYB. As stated by KM, the role of support workers is to assist KYYB to build her capacity and I am persuaded a 1:3 ratio is sufficient to address her needs arising from her ASD and ID. This ratio is also appropriate to support her to work towards her stated goals including "to increase her independence with self-care skills, specifically dressing, feeding, toileting and sleeping".
9. As part of my consideration, I am required to address 34(1)(e) which relates to reasonable expectations of support for families, carers, informal networks and the community to provide.
10. Relevant to this consideration KYYB's mother provided evidence:
    1. KYYB's father is not a constant presence in KYYB's life. He does not live in the home and, at the time of the hearing, it was unclear if he would live in the same city as KYYB.
    2. her extended family provides little support to her and her family.
    3. she has multiple medical conditions that impact her including chiari malformation, IIM and migraines.[81]
    4. she has 3 other children with varying disabilities.
    5. she has a high risk of carer burnout as the sole and primary caregiver of KYYB and her other children. This is confirmed in the report of Ms Ryan[82] and Ms Young, psychologist.[83]
11. Ms Ryan, KYYB's behavioural support practitioner recommends support by support workers to be included in her SoPS to support her during high-risk and high-intensity periods of time throughout the day (e.g. before and after school). She does not make a recommendation of the number of hours to be provided.[84]
12. Ms Rochelle Smith, physiotherapist, also recommended KYYB be supported for 3 hours per week to embed skills which is "important to continue to embed these skills in the context of a family with multiple high needs children precluding parents from providing this support... This includes activities which increase social and physical activity and community participation eg. Bike riding, swimming, scooter, playgrounds."[85]
13. Relevantly from Dr McDowell's written report he was of the opinion:
    1. KYYB can undertake the activities of showering, eating, dressing, grooming and toileting at a function level independently provided she is not in pain or overly fatigued.[86] Further "Assistance, as reported, is needed for organisational guidance, helping KYYB stay calm, supporting her when she is fatigued and / or has headache."[87]
    2. "Even with sufficient supports to manage daily function, a cooperative school and a set of 'out of school' therapies / behaviour supports, a developmental gap appears to be widening between KYYB and her age peers. This gap is likely to become more and more difficult to address successfully as KYYB becomes embedded in her current life patterns."
    3. "I consider it wisest to address the question of support worker assistance from a 'whole of family' perspective. It makes little sense to think of assistance compartmentalised by child...If the household becomes more settled, stable and has greater capacity for nurturing, it is possible KYYB will need little support service for function at home."[88]
    4. He considered that support worker assistance could focus upon 2 goals. One to build school attendance and the positive experience of school and the other to build fitness/exercise capacity so she can engage in community activities of interest and build independence.[89] He further expressed concern that support worker assistance may fail to work towards KYYB's NDIS goals if the failure to attend school (for example) became habituated.[90]
14. KM took exception to the evidence of Dr McDowell and in particular contended his evidence should be given lesser weight as he did not attend to see KYYB in person and his opinion was based on a short discussion with KM which was not in person.
15. I am persuaded by the evidence of Ms Rowbotham that KYYB has scored at a low level when tested in the functional capacity assessment. I am equally persuaded by the evidence that KYYB requires prompting for the majority of tasks to support her with activities of daily living. I am not persuaded KYYB needs 1:1 ratio of support to build her capacity with those tasks, whilst acknowledging her needs vary depending upon the impacts of her migraines.
16. The evidence before me addresses the tasks KYYB requires support with to set up her day including eating breakfast, bathing and dressing. These are all tasks needing to be performed each day of the year.
17. I am not, however, persuaded the level of support is as great when KYYB is not in attendance at school. Despite KM's evidence of the support KYYB needs when not at school I prefer the evidence of Ms Rowbotham that KYYB is assisted with verbal prompting with limited adult supervision.
18. For the reasons above I am of the view support worker assistance with activities of daily living at the ratio of 1:3 is reasonable and necessary. The focus of the support workers, as expressed by KM is to work on KYYB's NDIS goals which include independence with self- care skills.
19. I find the reasonable and necessary hours of support worker assistance with activities of daily living at the ratio of 1:3 comprise:
    1. 20 hours per week for 40 weeks of the year at the weekday rate for the school term; and
    2. 10 hours per week for 8 weeks of the year at the weekday rate when KYYB is not at school and not in respite care; and
    3. 2 hours per week for 48 weeks of the year at the Saturday rate.

1. KYYB is seeking 4 hours per week at a weekday rate for community social and economic access at a 1:1 ratio.
2. The Agency contends the support currently in KYYB's SoPS, namely 6 hours per week for 48 weeks at the ratio of 1:4 is sufficient.[91]
3. This request was not broadly addressed by the parties in their submissions.
4. Ms Ryan's report of February 2025 recommends KYYB engage with support workers "to assist her to access her community safely to ensure she can access both capacity building and leisure activities within the community on the (sic) basis as her neurologic peers."[92]
5. Ms Ryan detailed KYYB's triggers including:
   1. Social situations (with same-aged peers)
   2. When KYYB feels challenged
   3. When KYYB is engaged in ADLs or asked to complete a basic task/chore
   4. Transitions (between activities and environments)
   5. Changes to KYYB's routine/planner
   6. When a situation doesn't occur as KYYB had expected it to (aspect of her routine, a social situation, completing a task, etc).[93]
6. In addition, Ms Ryan also refers to the behaviours which put KYYB at most risk to include:
   1. Withdrawal/Refusal
   2. Aggression - Verbal - yelling, screaming, swearing, making verbal threats, name-calling.
   3. Aggression - Physical - kicking, hitting, punching, scratching.
   4. Destructive Behaviour - throwing things around the home and towards others.
   5. Selective mutism.[94]
7. KM advised during oral evidence special measures are undertaken by the school to manage absconding or other behaviours of concern,[95] although I note there is no mention of absconding in Ms Ryan's report.
8. Dr McDowell opined "I see two related goals: to build her school attendance and positive experience of school education, and to build her fitness / exercise capacity, particularly so she can engage with community activities of her interest. I consider these as foundation prerequisites for independence and successful social participation."[96]
9. It is evident from the information before me including the opinion of Dr McDowell that it is important for KYYB to start to develop more independence, and involvement in community activities. This is also consistent with her stated NDIS goals.
10. It is of note KYYB currently has 6 hours per week for 48 weeks at a ratio of 1:4 in her Statement of Participant Supports. There is no evidence before me about how KYYB is currently using this support, if at all.
11. I find KYYB requires 3 hours per week of community, social and economic access at a weekend rate at a ratio of 1:1 for 48 weeks to be reasonable and necessary. I consider the ratio to be more appropriate for this category of support work to allow:
    1. The behaviours which put KYYB at risk as identified by Ms Ryan to be supported more directly when in the community and an unfamiliar environment.
    2. To work with KYYB to meet her stated goals of becoming more independent and developing skills to manage her emotions more independently and safely;
    3. The support worker to work closely with KYYB to work to implement the therapeutic recommendations made by behaviour management practitioners outside of the home environment.
12. Whilst KM requested the hours at a weekday rate, I have included them at a weekend rate to allow KM to consider if KYYB's capacity to engage with the community and attend activities may be greater on the weekend rather than afterschool and may provide her with a better setting to build upon her skills and to practise her recommended therapeutic supports.

1. At the conclusion of the hearing, the Agency conceded 28 days of STA was reasonable and necessary. This accorded with the number of days KYYB was seeking. The issue that remained in dispute, however, was whether, as contended by the Agency the ratio of 1:3 is reasonable and necessary or 1:1 as sought by KYYB.
2. The Agency contends that 1:3 ratio is reasonable and necessary as Dr McDowell did not see the need for 1:1 ratio of support for respite as KYYB did not demonstrate the antisocial behaviours which make her incompatible with a higher ratio. They further contend it should be at the 1:3 ratio to share with her siblings.[97]
3. They further contend Ms Rowbothom considered KYYB could not cope overnight with STA and the only time KYYB would stay overnight is when KM needs to attend to her own health concerns.[98]
4. KM provided oral evidence that KYYB would not be able to cope without KM overnight as the STA provider cannot provide the medication KYYB requires. KM stated she would still have to attend the STA site to administer the medication. KM explained she would modify the way she applied the STA time in the manner she currently applies it for KYYB's siblings, which is for her child to go STA for an 8-hour period or "a decent amount of time" to let KM do what she needs to do.
5. There is evidence before the Tribunal of KM's carer burnout. I accept that KM does not have informal supports she can call upon to assist her with KYYB and her siblings.
6. Ms Mulholland stated in her report, after conducting a Social Participation Skills Questionnaire, KYYB requires an adult to complete most of the tasks, however, she can complete some of the tasks if provided with 1:1 support. She went on to explain "KYYB is not independent with completing any tasks involved with accessing the community. Many of these tasks require a combination of language, regulation and independence skills to be successful. Occupational therapists/psychologists can comment more on regulation and independence skills. Most children develop the language and pragmatic skills to be able to accomplish these tasks to at least a basic level independently between the ages of 4-7."[99]
7. Ms Jessica Ryan, KYYB's treating behavioural therapist, prepared a report of 23 August 2024 and a further report of 7 February 2025. Ms Ryan commented in her report that an assessment of KM's level of carer burnout had been undertaken. She scored a level of 73 which indicates a very high level of caregiver burnout, reflecting greater levels of stress, burden and exhaustion. She further stated KM was experiencing severe emotional, physical and possibly financial strain due to their caregiving responsibilities.[100] Ms Ryan recommends KYYB have 28 days of respite included in her SoPS to ensure her mother's carer fatigue is addressed and raises "the need for intervention to sustain the family unit, within the family home."[101]
8. The Tribunal notes that Ms Ryan did not provide oral evidence during the hearing.
9. Ms Rowbotham stated in her report as part of her update:

"Of particular concern are the reported behaviours at home which are not reported at school other than KYYB being occasionally oppositional when asked to complete tasks. Sensory or behavioural difficulties that are only noticeable in the home environment can occur for a few reasons:

• Certain triggers may be present which are overwhelming and not present elsewhere, including unpredictable changes, noises, and the presence of siblings.

• Possible masking at school and then release of emotions at home.

• Attention seeking or communication need behaviours present at home which may be a way of KYYB seeking comfort, expressing frustration, or gaining control of her environment.[102]"

1. Dr McDowell was asked to comment upon KYYB's disability support needs contributing to carer burnout. He was of the opinion KM was impacted by:
   1. KYYB's attendance for half days at school;
   2. KM's priority of KYYB's care;
   3. Concern for KYYB's mental health and general wellbeing; and
   4. KYYB's behaviour at home.[103]
2. I am satisfied 28 days of STA is reasonable and necessary and that KM will use the allocated hours flexibly in a modified manner to best support her with carer burnout and to assist her to attend to her own needs whilst KYYB is being supported elsewhere and optimally use the allocated hours of STA support. KM has very little informal support available to her and the high level of carer burnout is noted in addition to her own health needs which may require her to travel to Sydney for treatment.
3. I am left to consider the ratio of care for the 28 days of STA.
4. KM gave oral evidence 1:3 is not sufficient for KYYB due to concerns for safety. KM explained that at school KYYB has a ratio of 2 students and 2 teachers as the environment is "locked down" with gates and locked doors so the environment can support a lesser ratio.[104]
5. The Agency contends that 1:3 ratio is appropriate for the reasons outlined at paragraph 135 above.
6. There is evidence before the Tribunal that KYYB demonstrates behaviours of concern which she is working with her behaviour practitioner, Ms Ryan, to address. Ms Ryan observes in her reports KYYB's capacity to regulate her emotions and respond adaptively to situations which are stressful to her is significantly restricted by her functional communication skills, and her level of emotional awareness and literacy.[105]
7. There is an extensive list of triggers in Ms Ryan's report[106] including:
   1. Social situations (with same-aged peers)
   2. When KYYB feels challenged
   3. When KYYB is engaged in ADLs or asked to complete a basic task/chore
   4. Transitions (between activities and environments)
   5. Changes to KYYB's routine/planner
   6. When a situation doesn't occur as KYYB had expected it to (aspect of her routine, a social situation, completing a task, etc).
8. Dr McDowell was in support of the provision of STA on the condition KYYB would like that. If KYYB feels safe, he was of the view, it may help build independence, reducing dependency on her mother. He was further of the opinion optimal respite would be planned at a 'whole of family' level.[107]
9. KM explained KYYB has tried STA before with carers that she knows and she was comfortable.[108] KM explained there may be times when KYYB would need support overnight such as if KM becomes unwell and needs attend to her own medical needs or may be hospitalised.[109]
10. On the evidence before me I am not satisfied the ratio of 1:1 is reasonable and necessary for the entirety of the 28 days, as I am not satisfied it represents value for money. It would be reasonable to expect after KYYB becomes familiar with the STA setting, and has worked on her behaviours of concern with her support practitioners and support workers, she would experience less triggers. It would be expected she would be less impacted by changes to her routines and transitions between activities and environments. I also am satisfied that once she becomes more familiar with the STA setting, she will be able to engage with the support workers in a manner similar to her home environment. For the reasons I expressed earlier in this decision, I have considered a 1:3 ratio represents reasonable and necessary levels of support worker assistance in her home setting.
11. Equally, I am not satisfied a 1:3 ratio is reasonable and necessary for the entire 28 days as I do not accept the contention of the Agency that KYYB can share the support with her siblings for the entire period. Considering KYYB individually, I accept the evidence of Ms Ryan in relation to KYYB's triggers and the evidence of Ms Rowbothom that some of KYYB's behaviours of concern are exhibited at home and are not reported at school. I do not find a 1:3 ratio for 28 days would be effective and beneficial for KYYB. In addition, for the reasons I have expressed in my decision in relation to social and economic participation , I am satisfied that she will need some period of time where she is supported at a ratio of 1:1 in an unfamiliar environment while she transitions to that form of support.
12. I am satisfied KYYB's STA at a ratio of 1:1 for 14 days per year and a further 14 days per year at 1:3 ratio, is reasonable and necessary for the following reasons:
    1. The evidence before me shows KYYB has not spent much time in STA to date and will need time to adjust to this form of support. Initially a 1:1 ratio will be effective and beneficial for KYYB for part of the period to allow her to transition.
    2. KM may require a period to attend to her own health needs, including being away from her home. As there is evidence she has very little by way of informal support, it is foreseeable KYYB may be require to attend STA while her mother is unwell, and may require 1:1 support to manage the unexpected or extended period of STA.
    3. KM's evidence was that she will require "a decent amount" of STA support and KYYB will need her to attend to provide medication, and she did not anticipate KYYB staying overnight initially. This does not support the need for 24 hours of 1:1 support on each occasion of STA.
    4. If KYYB's siblings are also able to access STA, and sharing STA with her siblings is considered appropriate during the plan period, KM will be able to arrange to have time to attend to her own needs, and the ratio of 1:3 would represent value for money.
    5. Dr McDowell recommended it would be beneficial for KYYB to attend STA if she feels safe. Given the evidence of Ms Ryan in relation to KYYB's triggers, it is foreseeable KYYB will require some time at the 1:1 ratio to work on behavioural strategies to feel safe.
    6. Given KYYB's triggers and difficulties in managing her emotions, the ratio of 1:1 will provide her with greater support while she builds on her skills she is working on in behavioural support therapy, in a different setting. Once these skills are developing, a ratio of 1:3 would be more appropriate.
    7. Ms Rowbotham's opinion that there is a difference in the behaviours of KYYB at home compared to at school. KYYB displays more of those behaviours at home when with her siblings. STA at 1:1 ratio will give her an opportunity work on her goals of independence and management of her behaviours without the input of her siblings while she adapts to her new model of support. As she becomes more adept with those skills, it will support KYYB to become more comfortable with others as the ratio is increased to 1:3 which may include her siblings, but equally it may include other young people. This will support her to increase her social participation and work on her goals.
    8. The reduction in ratio of care overtime will allow her to be highly supported to transition, however, the reduction in the ratio to 1:3 over time will also support this as she will be less likely to be dependent on support workers, gain some independence and will represent value for money.

1. Before addressing each of the therapeutic supports sought for KYYB, I note the global contention of the Agency in their Closing Submissions, regarding therapeutic supports. They rely upon the evidence of Dr McDowell who considers if KYYB cannot attend school, then therapy supports "make no sense" and in fact may hinder her ability to attend school as she may be too tired. He is of the opinion that capacity building can only be considered once education "has been sorted out". Their contention is KYYB would not benefit from therapeutic supports based on Dr McDowell's opinion. They state this opinion should be preferred over that of Ms Rowbotham's evidence which was she needed to have direct contact with KYYB and the therapy was of benefit to KYYB, however, they submit Ms Rowbotham agreed some of the supports were duplicative of other supports such as support worker assistance.[110] They contend the current 90 hours per year for therapy which can be used flexibly for occupational therapy, physiotherapy and speech therapy to be sufficient in addition to the current 65 hours of behaviour support.[111]
2. KM does not agree with this contention and each therapeutic support is considered below, noting the Agency's global position. In her closing submissions, KM states the limited sessions of therapists in the prior year had resulted in her disabilities further declining.[112] KM further contends KYYB "would benefit most from weekly therapies with multiple therapists with intense intervention, this is not suitable for her multiple disabilities and would ensure burn out. While KYYB has a therapy each week, this rotates fortnightly between therapists."[113]

1. KYYB is currently seeking 37 hours of occupational therapy on the basis of building basic life skills.[114] In her oral evidence she advised without the therapy, KYYB would plateau and would be more and more reliant upon her.
2. It is the contention of the Agency that this does not represent value for money, and is a duplication of the support worker assistance.[115]
3. KM does not agree that there is an overlap with the support worker, rather KYYB would be assisted in weekly therapy but "could not handle it" so the support worker builds upon the progress being made by the OT.[116]
4. The position of the Agency in relation to this, and all therapeutic support being requested by KYYB, is there is insufficient evidence to meet the effective and beneficial criteria as they contend the evidence does not show what progress KYYB has made with the occupational therapy provided to date.[117] In addition they rely upon the evidence of Dr McDowell's evidence that KYYB's school attendance needs to be improved before capacity building can be considered, and therapy would be of no benefit to KYYB.[118]
5. Ms Rowbotham completed a report in September 2024 which she updated in March 2025.[119] Ms Rowbotham recommended 37 hours of occupational therapy including 25 hours of therapy, 8 hours of indirect support and 4 hours of report writing.
6. In her written report Ms Rowbotham recommends occupational therapy "fortnightly or as needed, which can be provided in school to target...pencil grasps...hand strength program to support pencil control and endurance for writing, letter formation program and classroom observations and linking in with teacher."[120] When asked in cross examination whether this is something the school educators could address, Ms Rowbotham agreed this could be addressed by KM, support workers and the school. She also stated her therapeutic hours may be undertaken every four or five weeks and would keep KYYB motivated and involved, or it may be delivered in blocks or in periodic sessions. She gave the example of fortnightly sessions in term 2 of 2025 where she set up systems to support KYYB at home.
7. During her oral evidence, Ms Rowbotham also stated she supported KYYB in May, June and July 2025 where she set up the visual aids and the support workers but has not had an appointment with her in Terms 3 or 4.[121] She also provided evidence about her requested hours. She stated there were hours where she would provide support to set up the support works and family to provide ongoing daily support of supervision and prompting.
8. In relation to this and the therapies generally, Dr McDowell opined "I formed the opinion whilst reading this material and talking to them that therapy interventions are not likely to be a substantial benefit at the current time. The reason for this opinion is that KYYB does not appear sufficiently "available" (physical and emotional wellbeing) to learn and practice, whilst at the same time these sessions may add to her already problematic fatigue...if this were to change, I would begin with the goal of increasing school attendance, as the naturalistic stimulation of that setting would benefit her language, social and other areas of developmental concern."[122]
9. Mark Ranger, the school counsellor and registered psychologist, observed in his report, now almost two years old, after administering clinical testing, continued occupational therapy is required due to observed fine and gross motor skills difficulties. He did not go on to quantify the amount of hours.[123]
10. To find occupational therapy is a reasonable and necessary support, one of the elements I must turn my mind to is whether the support is, or is likely to be, effective and beneficial for the participant, having regard to current good practice.[124] I find that there is insufficient evidence before me that provides sufficient detail of how the requested occupational therapy will provide KYYB with effective and beneficial support. I do acknowledge the evidence of Mr Rogers and Ms Rowbotham that testing over time has shown KYYB to have deficits that may be addressed by occupational therapy. What is not before me is evidence that persuades me that KYYB's attendance at school and support at home through her family and support workers is insufficient to address the areas which need to be addressed, such as writing skills, identified by Ms Rowbotham. Ms Rowbotham herself confirmed in oral evidence KYYB can be assisted more broadly than provision of therapy through her. Additionally, I cannot ignore the opinion of Dr McDowell and his concerns about KYYB's fatigue levels and the potential for a detrimental effect on KYYB. Accordingly, I do not find occupational therapy is a reasonable and necessary support within the meaning of s34(1) of the NDIS Act.

1. KYYB is seeking 60 hours of speech pathology services. In oral evidence, her mother stated: "Therapies are vital for my daughter to continue to develop basic life skills, improve her communication which thankfully I no longer have to interpret for her most of the time, increase her safety, awareness and most importantly reduce long term dependency on myself."
2. The Agency's contention in relation to speech therapy is the support does not represent value for money as KYYB had undertaken speech pathology in the past and there is no evidence KYYB has improved as a result of the therapy.[125]
3. The report of Sarah Faulks, speech pathologist,[126] provides context to KYYB's interaction with speech pathology. KYYB was undertaking speech pathology between February 2022 and August 2023 when she relocated from Melbourne to regional New South Wales. She was then referred to Kerin Health in February 2024 for speech pathology due to continued concerns around unintelligible speech, expressive and receptive language, literacy development and social communication. At this time KYYB was assessed as requiring regular therapy appointments, however, no recommendation was placed in the report about the number of hours or sessions recommended.[127] No evidence was provided by the report writer at the hearing.
4. Olivia Mulholland, speech pathologist has been working with KYYB since January 2025 and provided a report dated 24 February 2025.[128] She did not provide oral evidence. The majority of the report recorded details of the testing undertaken in January and February 2025. Ms Mulholland reporting KYYB as having "severe language difficulties outlined above having a significant effect on her academic achievement, communication skills, and ability to navigate daily tasks effectively."[129] She went on to say "without support, these difficulties are bound to have a negative impact on KYYB's quality of life. Additionally, KYYB's written language are at significant risk due to her difficulties with oral language. It is likely she will require intensive intervention to target her written language in future if she does not receive the necessary support." [130]
5. Ms Mulholland was able to clearly identify the short-term speech pathology goals and to link them with the NDIS goals of KYYB. These include being able to participate in discussions and tasks in all natural environments including home, school and the community in addition to being able to follow one-step directions about getting organised to leave the house.[131] Some of the barriers identified to progressing to those goals include KYYB's disabilities of ASD and ADHD, social factors such as limited social skills which may exacerbate anxieties and hypersensitivities as well as the experience of migraines which sometimes affect her participation in therapy sessions.[132]
6. They also identified KYYB's selective mutism as a concern which was also raised by KYYB's behaviour therapist. This led Ms Mulholland to recommend assistive technology, such as an iPad application to be trialled for periods of non-speaking.[133] Ms Mulholland's overall recommendations were for weekly (48 weeks) 60-minute sessions with an additional 15 minute non-face-to-face clinical time, 45 minutes of travel and 97c per kilometre travel cost equating to $448.12 per session. In addition, she recommends 4 hours of report writing per annum and 24 hours (2 hours per month) for interaction with other health professionals working with KYYB. Finally, she recommended $1,000 for core support funding to purchase assistive technology once trialled.
7. When asked in cross examination by Ms Costin whether KYYB increasing her attendance at school would improve her speech, KM stated that due to her disability and diagnosis more regular schooling would not change her need for speech therapy.
8. I note Ms Mulholland's report does not identify lack of school attendance as a barrier to progress. She does identify, in a more broad sense, the impact of migraines on her participation in therapy among other barriers.[134]
9. In his report dated 11 April 2024, Mark Ranger, school counsellor and registered psychologist, after administering clinical testing, recommended due to KYYB's observed speech and language difficulties ongoing speech therapy is recommended. He did not go on to quantify the amount of hours.[135]
10. I again note Dr McDowell's opinion more generally in relation to therapies for KYYB addressed in paragraph ‎161 above.
11. I distinguish this support request from the occupational therapy request, as Ms Mulholland has been clear in her report about how this support addresses:
    1. KYYB's needs as a result of her impairments arising from ASD,[136]
    2. how the support will address KYYB's NDIS goals[137]
    3. supporting KYYB with social and economic participation,[138] and
    4. how it will be effective and beneficial to KYYB.[139]
12. I also acknowledge the contention of the Agency there is no evidence before the Tribunal that the speech therapy conducted to date has been of benefit to KYYB. Ms Mullholland did not attend the Tribunal to give evidence. I also note at the time of her report she had only been working with KYYB for a short period of time.
13. I am not persuaded by the Agency's contention, that the lack of evidence the speech therapy in the past was beneficial outweighs the benefits outlined in Ms Mullholland's report. I am persuaded the speech therapy is a support connected to KYYB's ID and/or Autism and will assist to work towards her stated goals particularly to express herself more clearly to enable her to be understood by family members and peers.
14. The evidence the school counsellor, Mr Ranger is that KYYB has observed speech and language difficulties and ongoing speech therapy is recommended.[140] I accept the report of Mr Ranger, the school counsellor is no longer contemporary as it is almost 2 years old. I also note in addition, there is nothing in the report of the school at the end of the 2025 school year which indicates communication is a particular difficulty for KYYB.[141]
15. Ms Rowbothom in her report of 3 March 2025 "KYYB has no trouble starting a conversation with mum and siblings but requires support to initiate conversation with others. During OT assessment KYYB engaged with OT in back-and-forth conversation with mum present, describing in detail her toys and play themes." In her updated aspect of her report, she notes "speech assessment highlight moderate language disorders and difficulties in communication."
16. I am not persuaded the total amount of hours contained in the recommendations of Ms Mulholland meet the criterion of value for money or are effective and beneficial, in particular the composite of weekly therapy, non-face-to-face time, travel, report writing and collaboration with KYYB's health professionals and education team. This equates to 88 hours plus travel time. I note that KM requested 60 hours of speech pathology.
17. There is insufficient evidence before me detailing how any therapy has resulted in any improvements to KYYB's communication nor identification of any impacts of therapy provided less than weekly other than to state her future support will be significant and ongoing.
18. Overall, considering the therapist evidence that speech therapy is required and will be of benefit to KYYB, balanced against Dr McDowell's concerns about KYYB's capacity to undertake therapy, I am persuaded that some hours of speech pathology will work towards KYYB's goals including interacting with classmates and/or friends which in turn may promote school attendance which Dr McDowell identifies as necessary.
19. There is insufficient evidence before me however to satisfy me the requested weekly sessions are effective and beneficial and value for money. Given the contrasting evidence of Ms Mullholland that KYYB requires a high level of speech therapy against the evidence of other treating practitioners such as Ms Rowbotham that she can communicate with KYYB, I find that 28 hours per year of speech therapy, inclusive of report writing, is reasonable and necessary. KM can determine how to use those hours to provide optimal support for KYYB.

1. KM requested 40 hours of physiotherapy support for KYYB. She noted in oral evidence that KYYB had been receiving physiotherapy since she was 6 months of age.
2. In addition to the reliance generally on Dr McDowell's opinion regarding therapy, the Agency contends the support does not meet the criteria of representing value for money and submits KYYB could access physiotherapy through Medicare.[142] In oral evidence from KM, she rebutted the contention of the Agency as she is aware physiotherapy can be provided under Medicare, however those in the public system are not skilled in the disabilities KYYB has and are not sufficient to meet KYYB's needs.
3. The report of Rochelle Smith, physiotherapist dated 26 February 202[143]made recommendation KYYB receive 40 hours of physiotherapy, which is comprised of fortnightly therapy, 20 minutes of travel to a rural area, and an allowance for report writing.
4. She provided details the therapy they were providing at that time which included:

Developing task specific swimming and bike riding skills whilst capacity building emotional regulation each session with a carer, either her mother or support worker to carry on program. > > Play-based strengthening including playground activities, walking, steps, jumping, skipping and balance activities.

5. She went on to state KYYB is "a child with high needs relating to her diagnoses, birth and developmental history and the complexity of her home environment placing an inordinate stress on her carers. Appropriate levels of therapy and support work are required to address her needs and prevent further secondary detrimental conditions. Evidence based practise supports early intervention in childhood to prevent future chronic health problems by embedding resilience, independence and improving health outcomes."
6. In the report of Dr Kariyawasam dated 13 February 2024[144], the doctor notes "The family have engaged with a physiotherapy for the plagiocephaly with the anticipation of starting a hydrotherapy and massage strategy."
7. I am required to consider whether the support sought is necessary to address needs of the participant arising from an impairment in relation to which the participant meets the disability requirement.[145] In KYYB's circumstances they are impairments resulting from ASD and ID. The evidence before me is not sufficient to provide me with the satisfaction the physiotherapy sought is necessary to address KYYB's impairments.
8. In addition, the areas Ms Smith states in her report they will address such as bike riding and play-based skills can be worked on with KYYB with her support worker.
9. Accordingly, I am unable to find the physiotherapy support sought is reasonable and necessary within the meaning of s34(1).

1. KM contends 90 hours of behaviour support is required for KYYB. It is noted there are 65 hours in KYYB's Statement of Participant Supports under the headings Specialist Behavioural Intervention Support (45 hours) and Behaviour Management Plan including Training (20 hours).
2. The Agency contends the supports do not represent value for money until the Applicant's family dynamics improve and she is able to decrease her fatigue and regular headaches/migraines.[146] In their closing submissions, the Agency submits the current allocation of 65 hours for behavioural support currently in KYYB's SoPS is sufficient.[147]
3. KM gave evidence during the hearing that aggression is an ongoing issue. She detailed in the week before the hearing KYYB threw an item at the support worker which resulted in a report being lodged. KM's evidence was KYYB is in a specialist unit at school due to her behaviours.
4. In her functional capacity assessment, Ms Rowbotham reported KYYB had some trouble with her focus and attention and initiating and completing tasks. She noted however in the category in relation to behaviour towards others: "no aggressive behaviours reported, KYYB can be often non-compliant refusing to participate in routine activities at home and within classroom resulting in a meltdown." She also noted that KYYB had received some OT and psychology support to develop understanding of her feelings and self-regulation, however, needs adult prompting to be able to express her emotions and use strategies practised to regulate.[148]
5. In her report of 7 February 2025, Jessica Ryan, Behaviour Support Practitioner recommended the following supports in two sets of funding:[149]
   1. Improved Relationships (Specialist Behavioural Intervention Support) - 60 Hours
      1. 1:1 Direct Service Sessions (fortnightly during the school term) - 20 Hours
      2. Restrictive Practice Assessment (annually) - 2 Hours
      3. Monthly Behavioural/Incident Analysis (QR Code) - 15 Hours
      4. Functional Behaviour Assessment (annually) - 10 Hours
      5. Comprehensive Behaviour Support Plan (annually) - 10 Hours
      6. NDIS Plan Review (annually) - 3 Hours
         1. Behaviour Support Plan Management (including training) 30 Hours
      7. Behaviour Support Plan Training Development - 2 hours
      8. BSP Training (quarterly) - 18 hours
         • Parents and informal supports
         • Teachers and education/learning supports
           • NDIS Service Providers (NDIS support workers, respite providers, community service providers, etc)
      9. Quarterly Stakeholder Meetings - 6 hours
      10. Consultation - Care Team - 4 hours
6. Ms Ryan did not attend the hearing to give evidence.
7. Ms Ryan's report of February 2025 notes KYYB has been receiving direct therapeutic sessions fortnightly which they note reduced to monthly at times due to funding.[150]
8. She notes KYYB's behaviours which place her most at risk include:
   1. Withdrawal/Refusal
   2. Aggression - Verbal - yelling, screaming, swearing, making verbal threats, name-calling.
   3. Aggression - Physical - kicking, hitting, punching, scratching.
   4. Destructive Behaviour - throwing things around the home and towards others.
   5. Selective mutism
9. She also reports:
   1. Behavioural incidents are known to occur daily.
   2. Engaging KYYB in routines is extremely difficult, due to the sequencing involved in tasks and general transitions being a significant trigger for her.
   3. KYYB will refuse/withdraw which results in:
      1. not attending school;
      2. attending school although, arriving and commencing her work considerably later than expected, e.g. 11am;
      3. experiencing intense behavioural episodes during the transition to school including physical violence and aggression.[151]
   4. Often, significant behavioural episodes are a trigger for migraines which then results in:
      1. not engaging in therapeutic appointments restricting progress and limiting outcomes.
      2. reduced engagement with strategies and techniques to support KYYB achieve her therapeutic goals - behavioural goals, functional goals, academic learning goals.
      3. further absence from school - amplifying the concerns the school hold surrounding KYYB's current level of attendance (currently 54%).[152]
10. Ms Ryan's recommendation of hours seeks to develop targeted strategies to work towards the following behavioural goals to increase KYYB's capacity to:
    1. identify emotions (naming various emotions)
    2. identify how various emotions feel in her body (body mapping)
    3. understanding of the connection between thoughts, feelings, and emotions (how feelings influence behaviours)
    4. understand appropriate and inappropriate behaviours (red and green behaviours)
    5. increase her capacity to develop her ability to understand her triggers (things that trigger negative feelings and result in high-risk behavioural presentations)
    6. identify alternative behaviours (adaptive behaviours) and implement these in the presence of triggers and setting events (to replace negative and/or maladaptive behaviours).[153]
11. Ms Ryan has identified the barriers to effective implementation of the specialist behavioural intervention supports to include:
    1. KYYB's poor physical health including her levels of fatigue.
    2. Changes in KYYB's school care team and lack of funding for her home care team to ensure the training is completed within the home and community setting.
    3. Lack of therapeutic supports in a face-to-face model of care and carer fatigue.[154]
    4. Complex family dynamics.
12. Dr McDowell's concerns about therapeutic supports generally are noted.
13. I acknowledge the very low scores KYYB reflected in the testing undertaken by Ms Ryan which is reported in her behaviour support plan.[155]
14. I am persuaded by Ms Ryan's evidence that KYYB requires behavioural support. Whilst the Agency raised concerns about the family dynamic, I am persuaded by Ms Ryan's evidence the areas which the behaviour support will work on are those that will assist KYYB to build capacity to better manage her home environment, her attendance at school and in the community. I am also hopeful that some of the barriers to success for the implementation of the behaviour management strategies may be improved with the resolution of this application before the Tribunal and KM having certainty about the supports available through NDIS funding to plan a more stable framework of carers and supports.
15. I am in no doubt ongoing behaviour support for KYYB is of assistance to her to work towards her stated goals including to develop skills to manage her emotions more independently, and safely; to increase her play skills and begin to engage with a range of toys and people; and to increase her attention/concentration to enable her to engage in tasks for longer.
16. I have no evidence before me that persuades me that more hours across the 2 areas of behavioural support are insufficient. I accordingly find the behavioural support intervention to be a reasonable and necessary support made up of Specialist Behavioural Intervention Support of 45 hours and Behaviour Management Plan including Training of 20 hours. KM can arrange with the therapists how those hours are most appropriately expended.

1. KM is seeking 30 hours of support from a dietician stating in her oral evidence the hours are needed due to the fact the care is at an early stage and investigations are ongoing due to sensory needs and ASD.
2. However, the Respondent argued that dietician support was not related to KYYB's autism (s34(1)(aa)) nor is it the responsibility of the Scheme to fund (s34(1)(f) of the NDIS Act) because it can be addressed by attending the mainstream health system available to the Applicant.[156] At the conclusion of the hearing, the Agency conceded 15 hours of dietician support (inclusive of report writing) was reasonable and necessary.[157]
3. During oral evidence provided by KM she advised the dietician was requested as an urgent review by a non-Medicare provider to provide specialised assistance given KYYB's disabilities. Further she was unable to clearly state what the 30 hours sought would cover and how those hours were devised. She said as it is a new service KYYB would be entering it will take time for the service to get to understand KYYB's needs and to assess what number of hours of support she will require.
4. Ms Rowbotham in her report of 3 March 2025 notes KYYB is "bothered by environmental smells and may gag or vomit. Diet is self-restricted by avoiding unfamiliar foods." [158]
5. Dr Serov, paediatrician noted in his report of 11 March 2025 that KYYB has an issue with difficulty gaining weight citing she "enjoys chicken but not much other meat, she continues with Kids Essential three times daily." His clinical assessment of KYYB noted her weight was 23kg (7th percentile).[159]
6. The Community Health Service records reflect on 15 October 2025 KYYB was reviewed as an outpatient referral to a dietician on referral from a paediatrician. The dietician records reflect they discussed the foods KYYB prefers and those KM has attempted to offer but was rejected by KYYB. A further appointment was created for KYYB on 1 December 2025, which I note is approximately 6 weeks after the initial appointment.[160]
7. There are no discharge notes in the summons records or further records to gain an understanding about whether the outpatient service at the Community Health Service could continue to support KYYB.
8. Dr McDowell stated in his report "I note concerns about growth as well as fatigue. Regular (eg quarterly) review by a dietician would be of benefit to optimise nutrition."[161]
9. Accordingly, I find dietician support is required for KYYB as there is evidence before the Tribunal that the service has been of assistance to KYYB in the past and there are paediatrician referrals to a dietician in late 2025. I further find 15 hours for dietician support to be reasonable and necessary. I have based that number of hours on initial intake to a new dietician service and less regular intervals as the plan progresses given the most recent support appeared to take place at approximately 6-week intervals.

1. KM is seeking 70 hours of support coordination.
2. The Agency's contention is the support does not represent value for money and the current allocation of 36 hours for support coordination at level 2 is reasonable and necessary.[162]
3. An undated submission which I understand to be from the support coordinator[163] states there is a need for 70 hours' support coordination, for the following:
   1. Initial set up and planning, budgets / funding and service agreements - 5 hours.
   2. Provider searches and capacity for paediatric supports and services for KYYB's complex presentation. Liaising and stakeholder meeting to track progress and have a multidiscipline team approach for KYYB, her family and her support workers to follow and consolidate skills - 10 hours
   3. Ongoing coordination and weekly check-ins - 30 hours
   4. Quarterly home visit with travel crisis support changing programs or modifications to supports and services, exploration and sourcing mainstream supports like Carers Gateway for respite and cleaning - maximum being used post-surgery 5 hours.
   5. Plan review preparation requesting reports, gathering reports, report reading and writing, liaising with NDIS - 8 hours.
   6. Quarterly stakeholder meeting and liaising, organising training of staff attending BSP training and adjusting supports and services as required - 8 hours.
   7. Case notes report writing, emails, CRM management, audit / quality and compliance 4 hours.
4. I am not satisfied on the evidence before me that additional support coordinator hours would support KYYB to pursue her NDIS goals nor do they demonstrate value for money. It is unclear from the evidence why additional hours beyond those provided in KYYB's current plan are reasonable and necessary, nor how the current hours have been used.
5. Accordingly, I find 36 hours of support coordination, level 2 to be reasonable and necessary within the requirements of s34(1).

1. KYYB seeks the following:
   1. $1,000 for low-cost AT;
   2. $129.90 for continence products. The Tribunal understands this to be for bed wetting protection.[164]
   3. $370.80 for disability-related health consumables. The Tribunal understands this to be for the supplements known as Kid Essentials which KM contends has been recommended by KYYB's doctors in relation to her microcephaly.[165]
2. The Agency contends there is insufficient evidence to establish a link between KYYB's impairments and the consumables and AT contended form.
3. I find there is there is insufficient evidence before me to persuade me a sum greater than $500 which is currently held in KYYB's SoPS is reasonable and necessary for the reasons following.
4. I am not satisfied the evidence before me provides sufficient detail to allow me to consider how $1,000 for low-cost AT being sought would be considered a reasonable and necessary support within the meaning of s34(1).
5. I have limited information before me in relation to how the contended support of continence aids are linked to the impairments of KYYB and how they would be considered a reasonable and necessary support within the meaning of s34(1). The evidence of Ms Rowbotham in her report is that KYYB requires prompts to remember all steps involved in toilet hygiene[166].
6. There are copy emails dated 21 March 2025 from KM to KYYB's teacher advising that KYYB had soiled herself at school and had not wanted to tell her teacher. [167]
7. This evidence, however, is insufficient to provide the necessary evidence to support funding of the continence aid as a reasonable and necessary support within the meaning of s34(1).
8. There is no evidence before me that satisfies me the Kids Essentials supplements meet s34(1) and is connected to the impairments arising from KYYB's ID or ASD.
9. Accordingly, I find the about of $500 for low-cost assistive technology is reasonable and necessary.

1. KM seeks funding for the purchase of a Kukini Stroller with accessories which have a quoted cost of $7,187[168] and $8,180.[169] She states she has always used a stroller with KYYB. The current City Select Stroller she has most recently used has become unsafe, this is required due to KYYB's weight and height becoming greater than those recommended for that stroller's use which KM states was confirmed by KYYB's treating neurologist and paediatrician.[170]
2. The Agency's contention is the stroller does not meet the criterion of s34(1) as there is no connection to the impairments KYYB's suffers from.
3. In her statement, KM informed the Tribunal: "If she is admitted to hospital and requires to be carried by myself due to no safe option to assist with transporting her, she is unable to be discharged until she can make the distance to the vehicle by walking, lifting and carrying KYYB even short distances has become too detrimental to my health that it is no longer a safe option for either myself or KYYB."[171]
4. KM said in oral evidence KYYB's walking capacity is minimal. She has varying capacity from 20 minutes and 5 minutes. KM gave evidence that she can tell when KYYB has reached her limit through observing her body rather than behavioural cues such as saying "I can't do it", how she is moving, speaking and presenting herself. When the contention that more physical activity would improve her muscle strength and balance was made, KM gave evidence that due to microcephaly it is a balance and if too much is done her muscles can overtighten and restrict. The stroller is intended to be used to conserve energy for things which benefit her more. KM said with ASD she can expend her energy in areas of sensory overload such as walking through gates. She explained KYYB does not want to be in the stroller, she would rather be walking.[172]
5. KM stated KYYB had been using a stroller previously, however, the recommendation from KYYB's treaters was that it was no longer safe to use the stroller and she needed an age and size appropriate one. Discharge from a recent hospital admission was delayed as it was deemed she could not make the distance to the vehicle by walking and KM is not physically able to carry KYYB.[173]
6. KM provided evidence KYYB was previously approved for a Kukini Stroller in an earlier plan but did not buy one at the time.[174] In their closing submissions, the Agency advised there was no specific approval in KYYB's plan from 2023 to 2026 for a stroller.[175]
7. This particular stroller was recommended by Ms Rowbotham in her functional capacity assessment dated 10 September 2024[176] and in her Assistance Technology Report dated February 2024. Other strollers had been trialled, however were considered to be unsuitable for various reasons.[177]
8. Ms Ryan opines KYYB's extreme sensory sensitives combined with the chronic migraines and chronic fatigue result in reduced school attendance and engagement, increased sleep and a rejection of sensory stimuli in a learning environment. She also notes KYYB struggles to engage in a typical routine congruent with a girl of her age and her fatigue prevents her from engaging in community and extra-curricular activities. The concerns relating to the stroller reducing KYYB's capacity has been addressed by way of a strategy in the assessment of Ms Ryan.[178]
9. A restrictive practice assessment was completed on 1 May 2024 by Jessica Ryan, Quantum Behaviour. The report writer did not provide oral evidence at the hearing. They noted the purpose of the stroller is to; reduce fatigue, increase KYYB's capacity to engage in community and leisure activities with her family, and as typically appropriate for children her age. The use of the stroller offers additional benefits in responding to KYYB's sensory sensitivities to movement, sound, and light, while maximising opportunities for KYYB to access community. Ultimately it was determined: "There is no correlation between the use of the stroller and responding to and/or managing any behaviours of concern. In contrast, the use of the stroller would likely significantly improve KYYB's capacity to engage in daily and functional activities appropriate for her age. Considering the above, the stroller is not considered a Regulated Restrictive Practice."[179]
10. I am concerned by the statement of KM in her closing submission that "I am the one who has had discussion with ED Paediatricians and specialists on what would be the least traumatic restraint for KYYB. A stroller does not require myself, 2 doctors and 3 nurses to restrain KYBB for treatment, it only requires myself and a doctor with KYYB remaining calm and safe where she is untouched. I have had to restrain KYYB for almost 10 years for medical intervention and the trauma that comes from that as a parent allows me to recall every single time I have had to restrain her with the hospitals assistance."[180] I accept the evidence of KM in relation to the impact on KYYB and herself of attendance at medical appointments where KYYB is required to be restrained. I am in no doubt that as a parent that would be an exceptionally difficult experience for KM and for KYYB to be held down by a number of adults while she receives medical attention. I cannot, however, grant the funding of a stroller on this basis, particularly, where there is no medical evidence before me that this is an acceptable restrictive practice. The evidence of Ms Ryan's restrictive practice assessment does not cover the proposed purpose KM has expressed.
11. I am in no doubt that KYYB suffers from fatigue, and the fatigue makes it difficult for her to participate in activities outside of her home and to attend appointments where there is a need to walk for long distances. I also accept her mother's evidence that she is conscious of the need to use any stroller support conservatively and that she has found strollers in the past to be supportive of her care for KYYB. What is not evident from the evidence before me is how the fatigue KYYB suffers from is directly linked to the impairments relevant to her disabilities of ID, or ASD.
12. I do not find the funding of the Kukini Stroller to be reasonable and necessary within the confines of s34(1) of the Act.

1. The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that:
   1. The supports at paragraph 1(a) to (h) replace the Applicant's current supports in their Statement of Participant Supports specifies the reasonable and necessary supports include:
      1. Assistance with Daily Life at the ratio of 1:3 comprised of:
         1. 20 hours per week for 40 weeks of the year at the weekday rate; and
         2. 10 hours per week for 8 weeks of the year at the weekday rate; and
         3. 2 hours per week for 48 weeks of the year at the Saturday rate.
      2. Assistance with community, social and economic participation, 3 hours per week for 48 weeks per year at the ratio of 1:1 at the weekend rate.
      3. Short Term Accommodation for 28 days per year at a ratio of 1:1 for 14 days and 14 days at the ratio of 1:3.
      4. 28 hours per year of speech therapy (inclusive of report writing).
      5. 15 hours per year of dietician support.
      6. 65 hours per year of Behaviour Support inclusive of:
         1. 45 hours of specialist behavioural intervention support; and
         2. 20 hours of behaviour management plan creation and training.
      7. 36 hours per year of support coordination.
      8. $500 for low-cost AT.

Ms A Costin of Counsel, instructed by Ms J Thomson of the law firm Moray and Agnew.

[4] Applicant's written closing submissions pg 4

[5] The psychosocial health conditions to which this impairment was attributable were autism spectrum disorder (ASD). Respondent's Statement of Facts, Issues and Contentions para 4

[14] Written closing submission of the Respondent

[15] Written closing submission of the Respondent, pg 12

[16] Written closing submission of the Respondent, pg 12

[21] s2 of the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth) (Amending Act)

[22] Items 124, 129, 132 of the Amending Act

[34] Clayton and National Disability Insurance Agency (Clayton)

[35] National Disability Insurance Agency v Davis [2022] FCA 1002 (Davis)

[36] National Disability Insurance Agency v Foster [2023] FCAFC 11 (Foster)

[39] Forrest and NDIA [2025] ARTA 1131 [54]

[40] National Disability Insurance Scheme Act 2013 (Cth) s10(1)

[41] National Disability Insurance Scheme Act 2013 (Cth) s10(4)

[44] S25 (1)(b)

[45] National Disability Insurance Agency, "Applying to the NDIS", as at 10 December 2024

[58] Respondent's Statement of Facts, Issues and Contentions, [29-30]

[59] Applicant's Closing Submission, pg 3

[64] Respondent's Statement of Facts, Issues and Contentions, pg 6

[66] Applicant's Closing Submissions, pg 1

[81] Applicant's Response to Respondent's SOFIC

[91] Respondent's Closing Submissions, pg 12

[97] Respondent's Closing Submissions, pg 10

[110] Respondent's Closing Submissions, pg 11

[111] Respondent's Closing Submissions, pg 12

[112] Applicant's Closing Submissions, pg 3

[113] Applicant's Closing Submissions, pg 5

[115] Respondent's Statement of Facts, Issues and Contentions, pg 8

[117] Respondent's Statement of Facts, Issues and Contentions, pg 8

[118] Respondent's closing submissions

[124] S34(1)(d) of the National Disability Insurance Scheme Act 2013

[125] Respondent's Statement of Facts, Issues and Contentions - pg 8

[136] S34(1)(aa)

[137] S34(1)(a)

[138] S34(1)(b)

[139] S34(1)(d)

[142] Respondent's Statement of Facts, Issues and Contentions page 9

[145] S34(1)(aa)

[146] Respondent's Statement of Facts, Issues and Contentions, pg 9

[147] Respondent's closing submissions, pg 12

[156] Respondent Statement of Facts, Issues and Contentions, pg 9

[157] Respondent's Closing Submission, pg 2

[162] Respondent's Closing Submissions - pg 12

[172] KYYB's mother's oral evidence and EB4, pg 14

[174] KYYB's mother's oral evidence and EB4, pg 18

[175] Respondent's Closing Statement, pg 11

[180] Applicant's closing submissions, pg 7