PROCEDURAL HISTORY OF THE TRIBUNAL'S REVIEW AND ISSUES IN THE REVIEW

1. During the review Ms L represented LVQH, assisted by Mr Ben Armstrong, an advocate with People With Disability Australia. The Agency was represented at the hearing of the review by Moray & Agnew Lawyers, who instructed Ms Carmen De Marco of Counsel.
2. Initially, eight requests were made on behalf of LVQH for additional supports. These were as follows:[8]

Request 1: psychology sessions at a frequency of 25 sessions per year.

Request 2: in-home respite at a frequency of four weeks per year.

Request 3: support worker assistance at a frequency of 30 hours per week.

Request 4: dietetics at a frequency of 10 hours per year.

Request 5: physiotherapy at a frequency of 10 sessions per year.

Request 6: support coordination at a frequency of 36 hours per year.

Request 7: exercise physiology at a frequency of 52 hours per year.

Request 8: positive behaviour support, at a frequency of 70 hours per year.

1. As the review proceeded through the Tribunal's pre-hearing processes, the Agency agreed to the requested supports numbered 1 (psychology sessions); 4 (dietetics); 6 (support co-ordination) and 8 (positive behaviour support, comprised of 50 hours of specialist behavioural intervention, and 20 hours of training in behaviour management strategies). Confirmation was provided that the Applicant agreed to the offering of these supports.[9]
2. This resulted in the following supports remaining in issue at the time of the hearing of the review:
   1. Request 2: in-home respite at a frequency of four weeks per year (respite)
   2. Request 3: support worker assistance at a frequency of 30 hours per week (support worker assistance).
   3. Request 5: physiotherapy at a frequency of 10 sessions per year (physiotherapy).
   4. Request 7: exercise physiology at a frequency of 52 hours per year (physiology).
3. The Agency's position on the provision of support worker assistance was to offer an amount of 13 hours per week, as opposed to the 30 hours sought. The Agency's position was that this support was to comprise of 10 hours of assistance with self-care, and three hours, at a 1:1 level, of assistance with community participation.[10]
4. Accordingly, the issue before the Tribunal upon the hearing of the review was whether the four requested supports, respectively relating to respite, support worker assistance, physiotherapy and exercise physiology, are reasonable and necessary supports for LVQH.
5. The review hearing was held on 17 and 18 March 2025, with the Agency's legal representatives appearing in person, and the Applicant's representatives, and all witnesses, appearing by video (via Microsoft Teams).
6. At the hearing, the Tribunal had before it the T-Documents, which became Exhibit 1, and other materials lodged by the parties during the review. Most of these relevant evidentiary and other materials were collated in the form of a Hearing Bundle, prepared and filed by the Agency, which became Exhibit 2. Further materials were accepted into evidence as the hearing progressed, including LVQH's current NDIS plan, commencing on 13 December 2024 (Exhibit 4), and an updated report from LVQH's occupational therapists (Exhibit 5).[11]
7. At the outset of the hearing the Agency sought an adjournment of the hearing, on the basis of views contained within a report (Exhibit 3) that it had obtained from an independent paediatrician, Associate Professor McDowell,[12] dated 28 February 2025.[13] More specifically, the Agency submitted that Dr McDowell's report suggested a need for LVQH to be reassessed, in the context of the issues in dispute in the hearing; the evidence that might inform the Tribunal and assist it to reach the correct and preferable decision in the review;[14] and considerations of procedural fairness to the Applicant. While this concern was initially framed in terms in terms of whether LVQH's autism diagnosis had been properly made,[15] at the hearing it was explained that the concern arose because of Dr McDowell's doubts about whether certain of LVQH's behaviours of relevance could be properly attributed to his autism diagnosis.
8. This application was opposed by the Applicant, who additionally raised a number of issues relating to Dr McDowell's report, and essentially objected to its reception in the review. It is noted that Dr McDowell prepared his report on the basis of relevant materials that were provided to him; that is, 'on the papers'; he did not have an opportunity to assess LVQH in person. After hearing submissions, the Tribunal determined to proceed with the hearing and also to admit Dr McDowell's report into evidence. The doctor's report and oral evidence is dealt with at further length below.
9. At the hearing Ms L gave evidence for the Applicant, as did Ms Vanessa McKirdy, who is the owner/manager of Cronulla Nursing Services. Ms McKirdy's service has provided support worker services to LVQH. Dr McDowell was the only witness to appear for the Agency at the hearing.

1. In undertaking a review, the Tribunal's role is to come to its own independent conclusion, on the basis of the material before it, as to what is the correct and preferable decision. In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Smithers J said:

The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made.[17]

The Tribunal effectively 'stands in the shoes' of the maker of the decision under review.[18] In undertaking its review, the Tribunal may exercise all of the powers and discretions that are conferred on the maker of the decision under review.[19] Also, the Tribunal may consider materials additional to those that were before the decision-maker.[20]

1. In review proceedings of this nature neither party bears a formal onus of proof. However, the Tribunal can only make its decision on the basis of material which is probative and relevant of the matters required by the applicable statute. If an applicant seeking access to a benefit or interest under a legislative scheme does not provide evidence and information sufficient to meet the relevant statutory requirements (which here are the criteria in the NDIS Act relating to supports), they cannot succeed.[21]

1. After LVQH's review application was filed with the AAT, substantial changes were made to the NDIS Act by amending legislation, being the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (the amending Act). Of particular note is the changes that were effected by the amending Act to the NDIS planning provisions, including section 34; the definition of 'NDIS support' contained within section 10; and changes to the disability and early intervention requirements in sections 24 and 25. These changes were effective from 3 October 2024.[22] In that context, a preliminary issue arises as to whether the relevant provisions in the NDIS Act to be applied in this review are those which existed at the time when LVQH's SOPS was approved, or those, as amended, that commenced on 3 October 2024.[23]
2. The amending Act included transitional provisions. Sub-items 129(1) and (2) of Schedule 1 of the amending Act provide that sections 33, 34 and 35 as in force on and after 3 October 2024 apply to a SOPS approved or varied after that date, irrespective of whether the participant's plan came into effect before, or on or after commencement. This means that as the Tribunal's decision is being made after 3 October 2024, the amended provisions apply in considering LVQH's SOPS.
3. Changes made to sections 43 and 44 of the NDIS Act, dealing with plan management of funding for supports, apply from 3 October 2024 to any person who is a participant in the NDIS on or after that date.[24]

Further, pursuant to sub-item 138 of Schedule 1 of the amending Act transitional rules, being the National Disability Insurance Scheme (Getting the NDIS back on Track No.1) (NDIS Supports) Transitional Rules 2024 (the Transitional Rules) and the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (Miscellaneous Provisions) Transitional Rules 2024 (the Miscellaneous Transitional Rules) were made, and apply in the review of a decision concerning a SOPS completed on or after 3 October 2024.

1. The NDIS Act contains a statement of its objects, in section 3(1). They include to:
   • support the independence and social and economic participation of people with disability (section 3(1)(c));
   • provide reasonable and necessary supports, including early intervention supports, for participants in the NDIS (section 3(1)(d));
   • enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (section 3(1)(e));
   • promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (section 3(1)(g); and
   • protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS (section 3(1)(ga)).

Section 3(3) provides that in giving effect to the objects of the NDIS Act, regard is to be had to the need to ensure the financial sustainability of the NDIS.

1. Section 4 of the NDIA Act provides a number of general principles to guide actions under the Act. They include the following:

4 General principles guiding actions under this Act

(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.

(2) People with disability should be supported to participate in and contribute to social and economic life.

(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.

(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.

(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.

(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.

(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives.

(11) Reasonable and necessary supports for people with disability should:

(a) support people with disability to pursue their goals and maximise their independence; and

(b) support people with disability to live independently and to be included in the community as fully participating citizens; and

(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.

(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.

(12A) The relationship between people with disability and their families and carers is to be recognised and respected.

(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.

(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.

1. Chapter 1 of the NDIS Act also contains a number of definitional provisions, including, within section 10, a lengthy definition of the term 'NDIS support'. There was no contention in this review that the four supports in issue are not 'NDIS supports', within the meaning of the NDIS Act.
2. Chapter 3 of the NDIS Act deals with NDIS participants and their plans. Part 1A (section 17A) within that Chapter provides a number of principles relating to the participation of people with disability that must be had regard to 'in performing the CEO's functions and exercising the CEO's powers under this Chapter'. These principles are in addition to those set out within section 4 of the NDIA Act, as set out above.
3. Part 2 of Chapter 3 deals with participants' plans. Section 31 within that Part provides for a number of principles relating to plans:

31 Principles relating to plans > > The preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable: > > (a) be individualised; and > > (b) be directed by the participant; and

(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and

(ca) where relevant, recognise and respect the relationship between participants and their families and carers; and

(d) strengthen and build capacity of families and carers to support participants who are children; and

(da) if the participant and the participant's carers agree - strengthen and build the capacity of families and carers to support the participant in adult life; and

(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and

(f) support communities to respond to the individual goals and needs of participants; and

(g) be underpinned by the right of the participant to exercise control over his or her own life; and

(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and

(i) maximise the choice and independence of the participant; and

(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and

(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.

1. Section 33 specifies matters that must be included in a participant's plan. These include a statement of goals and aspirations (section 33(1)); and a SOPS - which is to be prepared 'with the participant and approved by the CEO' (section 33(2)).
2. Section 33(2)(a) to (e) specify the matters that must be in the SOPS. These include the 'reasonable and necessary supports' that will be funded by the NDIS (section 33(2)(c)).
3. Section 33(3) provides how supports may be specified in a plan:

The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.

1. By section 33(5), in deciding whether or not to approve a SOPS under section 33(2), the CEO 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 section 34 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 section 35; and

(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 section 46 (acquittal of NDIS amounts) was complied with in relation to any previous plan for the participant.

1. Section 34 is entitled 'Reasonable and necessary supports'. Section 34(1) specifies the requirements, of which the CEO must be satisfied, in relation to the funding of each support in the SOPS. These requirements are:

(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;

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

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

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

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

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

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

1. All of the requirements in section 34(1) must be met. Further, section 34(2) provides that NDIS Rules may provide methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of above requirements set out paragraphs (1)(aa) to (f) of section 34(1).
2. As noted, the amending Act made changes to section 34; these included adding new sections 34(1)(aa) and (f). The new section 34(1)(f), in referring to an 'NDIS support', imports the definition of that term as set out in section 10. That section provides also that rules may declare whether or not a support is an NDIS support; as noted, transitional rules to this effect have been introduced.
3. While the phrase 'reasonable and necessary supports' is not defined in the NDIA Act, it has naturally been the subject of consideration. In the case of McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle) Mortimer J (as she then was) noted:

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

Relevantly to this proceeding, the factor set out in s 34(1)(e) ("funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide") goes to both whether a support is "reasonable" (in the sense of it being subject to provision or funding by the Agency) as well as whether it is "necessary" (in the sense of whether it is a support that cannot be provided by others).

In my opinion, the text and context of s 33(5)(c), read with s 34(1) indicates that the CEO (or the delegate or Tribunal) must either be satisfied that a support has the character of being a reasonable and necessary support, or that it does not. Once a support is identified and described (to take an example away from this case, speech therapy lessons three times a week), then the question for the CEO (or the delegate or Tribunal) is whether she or he is satisfied that support, as identified, is reasonable and necessary for that particular participant. It may be open to the CEO to be satisfied that a differently identified support is reasonable and necessary: in this example, speech therapy lessons once a week. That determination can only be made on the basis of probative evidence.[25]

1. The Full Court of the Federal Court has said the following of the phrase in National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF):

The phrase is a composite phrase. We accept the Agency's submissions that each limb of the phrase should be given work to do. That task is not difficult, or complicated, with these two particular words, which are readily understood as conveying different meanings. However, the Parliament has chosen to use a composite phrase rather than to stipulate two distinct requirements, and therefore, as Gleeson CJ cautioned in XYZ v Commonwealth [2006 HCA 25; (2006) 227 CLR 532 at [19], '[t]here are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts'. > > In our opinion, such a danger is present on the construction arguments presented by the Agency. Both adjectives qualify the noun 'support', but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them. > > Nevertheless, there is no doubt that the contextual use of the phrase in this Act links it to public funding to be provided to a participant. In that context, the phrase connotes supports which meet a threshold which justifies - by reference to the context, objects and guiding principles of the Act and the facts of the case - the expenditure of public funds for that support, for a particular participant. As we have already explained, the phrase also needs to be understood taking into account what has qualified a person as a participant, and the links between a person's impairment and their full participation in the community, in the same variety of ways as persons without a disability might choose to participate. It is not accidental, in our opinion, that Parliament has chosen the term 'participant' to describe individuals who will receive funded support: the choice of that term reinforces, as we have sought to explain, that the driving objective of this Act is the holistic, improved and increased participation by persons with disability in the life of their communities, and in life itself. > > ... > > Ultimately, as the Full Court in McGarrigle recognised, the statutory task of determining the contents of a participant's plan, and what are the reasonable and necessary supports, is a fact‑intensive exercise. More so than in many legislative schemes that confer an administrative benefit, the circumstances of each participant will vary greatly. The exercise is highly individualised. There will be an area of 'decisional freedom' (Minister for Immigration and Citizenship v Li at [28] (French CJ)) for the decision‑maker, about what supports fall within this description, given the circumstances of a particular individual. Provided no substantive legal error attends the choices made, it is possible for reasonable minds exercising the power under s 33(2) to differ. So too on merits review. [26]

2. Section 35(1) states that the NDIS Rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:

(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and

(b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and

(c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.

1. Section 35(2) provides that the NDIS rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.
2. Section 9 of the NDIS Act defines 'National Disability Insurance Scheme Rules' as meaning the rules mentioned in section 209 of the NDIS Act. Section 209(1) provides:

209 The National Disability Insurance Scheme rules

(1) The Minister may, by legislative instrument, make rules called the National Disability Insurance Scheme rules prescribing matters:

(a) required or permitted by this Act to be prescribed by the National Disability Insurance Scheme rules; or

(b) necessary or convenient to be prescribed in order to carry out or give effect to this Act.

1. NDIS rules relating to supports have been made - they are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules). The preamble section of the Support Rules states:

These Rules are made for the purposes of sections 33 and 34 of the Act.

These Rules are about assessment and determination of the reasonable and necessary supports that will be funded for participants under the NDIS.[27]

1. The Outline contained in the Support Rules provides that Part 3 of the Rules set out criteria or considerations that the CEO is to use in deciding whether the CEO is satisfied in relation to some of the matters set out in Rule 2.3,[28] including value for money (paragraph 2.3(c)); whether the support is effective and beneficial (paragraph 2.3(d)); and taking account of the expectations of what is reasonable to expect families, carers, informal networks and the community to provide in informal supports (paragraph 2.3(e)). Relevantly, this Part of the Support Rules provides:

3.1 In deciding whether the support represents value for money in that the costs of

the support are reasonable, relative to both the benefits achieved and the cost of

alternative support, the CEO is to consider the following matters:

(a) whether there are comparable supports which would achieve the same

(b) whether there is evidence that the support will substantially improve the life

stage outcomes for, and be of long-term benefit to, the participant;

(c) whether funding or provision of the support is likely to reduce the cost of the funding of supports for the participant in the long term (for example, some early intervention supports may be value for money given their potential to avoid or delay reliance on more costly supports);

(d) for supports that involve the provision of equipment or modifications:

(i) the comparative cost of purchasing or leasing the equipment or

(ii) whether there are any expected changes in technology or the

participant's circumstances in the short term that would make it

inappropriate to fund the equipment or modifications;

(e) whether the cost of the support is comparable to the cost of supports of the

same kind that are provided in the area in which the participant resides;

(f) whether the support will increase the participant's independence and

reduce the participant's need for other kinds of supports (for example,

some home modifications may reduce a participant's need for home care).

Effective and beneficial and current good practice

3.2 In deciding whether the support will be, or is likely to be, effective and beneficial

for a participant, having regard to current good practice, the CEO is to consider

the available evidence of the effectiveness of the support for others in like

(a) published and refereed literature and any consensus of expert opinion;

(b) the lived experience of the participant or their carers; or

(c) anything the Agency has learnt through delivery of the NDIS.

3.3 In deciding whether the support will be, or is likely to be, effective and beneficial

for a participant, having regard to current good practice, the CEO is to take into

3.4 In deciding whether funding or provision of the support takes account of what it is

reasonable to expect families, carers, informal networks and the community to

provide, the CEO is to consider the following matters:

(i) that it is normal for parents to provide substantial care and support for children; and

(ii) whether, because of the child's disability, the child's care needs are substantially greater than those of other children of a similar age; and

(iii) the extent of any risks to the wellbeing of the participant's family

(iv) whether the funding or provision of the support for a family would

improve the child's capacity or future capacity, or would reduce any risk to the child's wellbeing;

(c) for all participants - the desirability of supporting and developing the

potential contributions of informal supports and networks within their

1. Part 5 of the Support Rules sets out general criteria for supports, and for supports that will not be funded or provided. Relevant provisions within Part 5 include the following:

Part 5 General criteria for supports, and supports that will not be funded or provided

5.1 A support will not be provided or funded under the NDIS if:

(a) it is likely to cause harm to the participant or pose a risk to others; or

(b) it is not related to the participant's disability; or

(c) it duplicates other supports delivered under alternative funding through the NDIS; or

(d) it relates to day-to-day living costs (for example, rent, groceries and utility

fees) that are not attributable to a participant's disability support needs.

5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the

following (which may be funded under the NDIS if they relate to reasonable and

(a) additional living costs that are incurred by a participant solely and directly

(b) costs that are ancillary to another support that is funded or provided under

the participant's plan, and which the participant would not otherwise incur.

1. In the case of McGarrigle v The National Disability Insurance Agency[29] Mortimer J (as Her Honour then was) said the following about the Support Rules:

... (the Rules) are an important element of the legislative scheme, introducing the ability to modify the operation of ss 33 and 34 by, for example, excluding certain kinds of supports from inclusion in participant plans. It is through the Rules that the executive is able to implement, within the federalism constraints imposed in s 209, some policy decision-making about the nature and extent of supports to be provided or funded under the NDIS.[30]

2. Additionally, the Transitional Rules and the Miscellaneous Transitional Rules are also now of potential application.
3. The Agency has also issued some Operational Guidelines which are relevant to NDIS supports, including those guidelines entitled Reasonable and Necessary Supports and Creating Your Plan. Such guidelines are published on the NDIS website and are described by the NDIA as guidelines that set out some of the NDIA's 'operational information': '[T]hey explain what we need to consider and how we make decisions based on the legislation.' [31].
4. Unlike NDIS Rules, NDIS Guidelines are not made pursuant to a power conferred by the NDIS Act; they are issued in an exercise of executive power.[32] As such, the Guidelines set out the NDIA's policy and provide guidance in how relevant powers are to be exercised. Ordinarily the Tribunal will apply such policy in reviewing a decision, unless the policy is unlawful, or unless its application tends to produce an unjust decision in the circumstances of the particular case.[33]

1. As noted, no issue arose in this review as to the four requested supports being in the nature of 'NDIS supports', for the purposes of sections 10 and 34(1)(f) of the NDIS Act. Rather, the contest concerned whether these four supports were 'reasonable and necessary' supports for LVQH.

1. To place the requested supports in context, it is helpful to note some of the evidence provided on behalf of LVQH regarding his impairments and his family's life and circumstances.
2. As noted, LVQH lives with his mother and his younger brother. There are some family pets in the household. The evidence established that LVQH's mother and father are separated but interact cooperatively in caring for LVQH and that LVQH spends, on average, around three days every fortnight with his father. Ms L gave evidence that this was at times not a consistent pattern due to the impact of events such as school holidays and her work, and may be up to four nights per fortnight at times.[34]
3. Ms L is a Registered Nurse and works on a contract and roster basis. At times it can be difficult to align her working hours with the times LVQH's father is caring for him, and/or when LVQH is attending school.[35]
4. Ms L also provided evidence from a psychiatrist about her own mental health condition, its impacts upon her capacity to tolerate and manage stress, and how stress itself can precipitate and perpetuate episodes where she is particularly impacted by that condition.[36]
5. The Tribunal was also provided with a paediatric report concerning LVQH's younger brother, which indicated diagnoses of ADHD; generalised anxiety, emotional dysregulation and sensory sensitivities; difficulty with attachment and several social stressors; and underweight for height, iron deficiency and difficulty with sleep onset.[37]
6. LVQH's paediatrician provided a brief report dated 16 September 2024.[38] Therein, it was noted that LVQH's relevant diagnoses are AD/HD, ASD Level 2, ODD and 'expressive language delay and articulation delay.' Medications then being taken by LVQH were Vyvanse and dexampethamine 'when very hyperactive after therapies'; Catapres at night to assist with sleep, with Risperidone being added as of the date of the report, 'due to increased aggression and sleep disturbance'.
7. Further, LVQH's paediatrician stated:

I understand that LVQH is on a behaviour support plan with the NDIS as he was threatening and he has pulled knives and pushed his mother off the lounge. He has scared away two health care workers. His mother has tried various strategies. When he is getting violent he needs to be restrained (he is more aggro). All sharp objects have been removed by the house. At school he is in a special focus class for literacy. > > His mother has been stressed because of his behaviour and his brother is copying his behaviour. He can wake screaming and he has run away when his mother has asked him not to.

8. A Clinical Nurse Consultant from Cronulla Nursing Services[39] provided a report dated 26 September 2024.[40] Therein, insomnia was listed as an additional diagnosis to those related by LVQH's paediatrician. In this report it was noted that:
   • LVQH had commenced in Year One that year, having been previously held back from school to maximise his development from his supportive therapies. He was attending a mainstream school with aid from learning support teachers and was recently put in a selective class for children failing to meet age requirements for literacy.
   • The school had reported that LVQH exhibited some behaviours that disrupted classroom settings and others that were sensory seeking, including chewing on various items.
   • LVQH engages in a calming 'stim' of pulling on his ears; this had been increasing.
   • LVQH had voiced his struggles to make friends, and about facing bullying at school.
   • A lack of social skills hampered LVQH's ability to engage in extracurricular activities, such as soccer.
   • When returning home from school LVQH's behaviour can be described as uncontrollable - screaming repeatedly and becoming physically aggressive, particularly towards his mother, his younger brother and family pets, and at times support workers. He will not respond to any forms of discipline or praise or take directions from his mother. He has at times damaged household items.
   • LVQH only sleeps for six hours per night, waking multiple times and screaming out to his mother. He urinates everywhere except in the bathroom.
   • LVQH became overwhelmed when attending a recent peer birthday party and since then, has not been invited to any other parties. Ms L finds it 'near impossible to take the children to social settings without the supervision and help of another adult.'
   • LVQH 'does have an occasional 'good' day, where he is responsive, obedient and polite.'
   • Following review of LVQH's behavioural support plan, two restrictive practices have been adopted. These are first physical restraint, when LVQH engages in physically aggressive behaviour toward his brother and there is a significant risk to his brother's physical safety; and secondly, the use pf psychotropic medication, due to LVQH's impulsiveness and explosive aggression, and to help LVQH be more susceptible to learning strategies for self-regulation.
9. Ms L also provided a report from another consultant paediatrician, who was engaged to 'provide a second opinion regarding LVQH's escalating behaviours, including violence, aggression towards family members and animals, and repetitive voiding at night.'[41] This report was dated 17 December 2024.
10. Ms L also provided evidence in the form of notes, recordings and photos regarding some behavioural incidents where LVQH had gone into 'meltdowns'.[42] These incidents involved episodes of aggression towards his brother and mother, at times resulting in injury and/or property damage.
11. Two reports, respectively dated 27 September 2024[43] and 13 March 2025,[44] were provided by the occupational therapy service that has assisted LVQH since May 2024.[45] In relating LVQH's 'current circumstances' in the first report, LVQH's occupational therapist (Ms Featherstone) advised:

Over the past 5 months LVQH's engagement in daily activities and in the community has become quite restricted due to an increase in his challenging behaviours, such as reduced safety awareness, breaking household items, and physically harming his mother, brother and the pets.[46]

12. Ms Featherstone used three forms of standardised assessments to assist in obtaining evidence of the functional impacts of LVQH's disability. These were the Vineland-3 Adaptive Behaviour Scales (3rd Edition) (Vineland Scale); Sensory Processing Measure - 2nd Edition (SPM-2); and the Caregiver Burden Inventory, completed by Ms L on 20 August 2024. The reported results of these assessments were as follows:

Vineland Scale - the questionnaire forms were completed by Ms L. Ms Featherstone reported:

LVQH has an overall percentile ranking of 1/100 which indicates a severe reduction in his ability to complete daily activities or adapt to changes in his environment or supports. When considering the difference between Domains of function, the Vineland-3 shows a significant difference between communication and self-care, indicating that LVQH's ability to communicate is higher than his ability to generalise instructions into everyday activities. This difference can easily cause frustration for LVQH when support in his daily activities is not accessible.

Although LVQH's gross and fine motor skills have scored as a "relative strength", LVQH's strong desire for gross motor play currently limits his development of more complex skills like social interactions and self-care. Using a strengths-based approach requires qualified allied health providers to work collaboratively to design programs and explain strategies to support services.

LVQH's participation in social, play, and leisure activities is restricted, and LVQH struggles to keep up with peers during group activities due to social and communication differences. Additionally, LVQH often rejects others' ideas, preferring to engage only in tasks where he feels confident. This can lead to frustration and avoidance of learning more complex motor skills, particularly in self-care tasks. The "relative strength" score in motor skills also poses a risk when LVQH is escalated as his physical strength and motor skills allow him to be more coordinated and targeted in his destructive behaviours.

LVQH's poor receptive language skills impact his interpersonal relationships and coping skills, as his ability to understand language does not translate into effective social interactions or emotional regulation, further increasing risks of social isolation and frustration. LVQH's expressive language skills and play and leisure skills, are below that of a 3y10m old child and his ability to articulate his ideas do not necessarily translate into meaningful engagement in play activities due to extremely low coping and interpersonal skills ( LVQH will, for example, further develop his balance and coordination skills, so that he is able to play soccer on the oval at school with his peers. LVQH will also be supported to use a functional pencil grip so that he is able to form letters, manage buttons and zippers on clothing, and use cutlery to eat a meal.

Request 3: support worker assistance at thirty hours per week

1. Turning now to the four requested supports in issue, the Tribunal will first consider the request relating to support worker assistance (Request 3). As the Agency contended that the request for in-home respite assistance (Request 2) was not reasonable and necessary because (among other reasons) it duplicated other supports, including that provided by support worker assistance, Request 3 is the logical starting point.
2. The history of the provision by the Agency to LVQH of support worker assistance through the SOPS in his various plans was explored during the review.
3. LVQH's NDIS plan for the year from 20 April 2022 to 20 April 2023[51] included funding within LVQH's core supports for:

'support to sustain the informal support provided to LVQH and his family with personal care. Hours are based on 10 hours per week for the first 3 months of the plan, 6 hours per week for the next 3 months of the plan, and 4 hours per week for the following 3 months.

1. Funding for this support could be used flexibly. Total funding for supports under this plan was $54,435.74 - this included funding for continence products within core funding, and capacity building supports in the amount of $39,573.86.
2. In LVQH's following plan[52] support worker assistance funding was increased, to 15 hours per week for 26 weeks, 10 hours per week for 13 weeks, and 8 hours per week for 13 weeks.
3. Again, funding for this support could be used flexibly. Total funding for supports increased to $65,354.81, inclusive of $300 for some 'low cost assistive technology' and $32,151.29 for capacity building supports. Included in those capacity building supports was funding for stated supports, in the form of specialist behaviour intervention support, a behaviour management plan and training in behaviour management strategies.
4. In LVQH's next plan, starting on 20 April 2024,[53] funding for core supports was reduced to zero. Capacity building support funding of $32,151.36 was included, in the form of 'stated supports'[54] for 'behaviour support' ($13,528.32) and 'improved daily living skills' ($18,623.04). These two supports were respectively described as follows:

Behaviour Support - Supports to help you develop behavioural management strategies to reduce behaviours of concern. This includes specialist behavioural intervention supports to help improve your quality of life.

Improved Daily Living Skills - Assessment, training or therapy (including Early Childhood Intervention) to help build your skills, independence and community participation. These services can be delivered in groups or individually.

1. This was the plan that led to Ms L instigating first an internal review of the decision made by the NDIS regarding LVQH's SOPS, and then the current review before the Tribunal.
2. This plan was varied on 13 December 2024,[55] to provide total funding of $16,075.68 for the six-month period through to 12 June 2025. This funding was again only for capacity building supports.
3. As noted, in the course of the review the Agency proposed and the Applicant has agreed to the inclusion in LVQH's SOPS of four requested supports; being 25 psychology sessions per year, dietetics at 10 hours per year, support co-ordination at 36 hours per year and positive behaviour support at 70 hours per year.
4. The Agency has proposed that the funding of support worker assistance at a total of 13 hours per week, comprising 10 hours per week for assistance with self-care and three hours per week of one-on-one assistance with community participation, and at a 1:1 level, is a reasonable and necessary support. The Applicant seeks 30 hours per week of support worker assistance. It can be noted that what is sought now is twice the maximum amount of support hours provided under any of LVQH's previous plans.
5. Ms L contended that provision of support worker assistance at this rate was reasonable and necessary, and supported by the evidence provided during the review on behalf of the Applicant. Ms L explained in her evidence that the increase in support worker assistance, compared to that provided in the April 2023-April 2024 plan, was sought on the basis that LVQH's 'behaviour and condition has worsened, hence increasing the number of supports requested now.'[56]
6. In her evidence Ms L referred to the meaningful relationships that LVQH has developed with some of his support workers, and commented in her written Carer Impact Statement upon the 'step-down' approach that the Agency had taken in previous plans, with the apparent purpose of building LVQH's capacity, contending that the removal of funding for support worker assistance was inconsistent with this approach. In this submission Ms L also stated:

Having a support worker would and has assisted LVQH with everyday tasks. This helps him be more independent at home and in the community setting. Support workers also complete and follow the advice and homework of the therapist, and school (LVQH is in a special focused learning group at school due to him not hitting the appropriate milestones for his age), with one-to-one support for LVQH. As provided in my evidence, every health care professional, inclusive of LVQH's paediatrician recommends in home and community support.

The community access LVQH was having, was with a support worker present in busy areas, due to LVQH's behaviours of overstimulation, aggression, and his inability to control his emotions. Without a support worker, not only is LVQH socially isolated, but we as the family unit are isolated, as taking the children out into the community, exceeds my parental capacity. Not having support workers also means that there is a drastic decline in assisting LVQH to complete everyday task such as getting ready for school, personal hygiene and home etiquette.[57]

1. Ms L emphasised in her evidence that she was in no way seeking to relinquish any of her parental and carer responsibilities through the provision of this support. Rather, she was seeking such assistance to ensure LVQH receives the attention and support that he requires each day.[58]
2. Ms L was asked by the Agency's counsel about LVQH's medications, noting that Vyvanse is administered to LVQH in the mornings prior to school, and timed to take effect around the time school begins, and has the effect of reducing his impulsivity. Dexamphetamine may be administered on some afternoons/evenings if LVQH is 'uncontrollable'. Catapres is administered before bedtime to assist with sleep, and melatonin has recently also been introduced.[59]
3. Ms L also highlighted the outcomes of the assessments undertaken by LVQH's Occupational Therapist Ms Featherstone, as noted above, and particularly the outcomes of the Vineland-3 assessment, reflecting that:
   • in the domain of personal self-care skills ( that is, dressing, bathing and grooming, eating, toileting, sleeping, medication management and sensory processing), LVQH's score was equivalent to an age of child of two years and six months of age;
   • LVQH's functional capacity in domestic self-care skills/self-management (examples given included getting food, carrying his belongings, fastening his seatbelt, cleaning up after making a mess and making his bed) were equivalent to a child of less than three years of age; and
   • LVQH's coping skills were comparable to a child of less than two years of age, becoming easily overwhelmed when asked to complete tasks independently.[60]
4. Ms Featherstone concluded that support worker assistance for 30 hours per week was necessary, as 'LVQH's informal support network does not have the capacity to provide these supports at the required intensity/frequency LVQH currently needs.' In her first report, Ms Featherstone envisioned that the 30 hours per week would consist of 10 hours in-home assistance for morning and afternoon self-care routines, and 20 hours community access 'for travel to/from school, to/from appointments, and assistance with family outings.' [61]
5. Ms Featherstone stated in her report:

LVQH's behaviours require 1-1 supports, and when this is unavailable, LVQH experiences escalating behaviours relating to frustration over a lack of skills in daily activities, poor social interaction and play skills, and atypical sensory processing, creating a sense of autonomic urgency which influences LVQH's behavioural responses. Disability support workers are required to provide LVQH with 1-1 attention and implement behavioural strategies during routines and community access. Without these support workers, LVQH's family are highly reluctant to visit community locations due to the high likelihood of behavioural escalations and safety concerns.[62]

1. In the second Occupational Therapy report dated 13 March 2025[63] which Ms Featherstone co-authored with Ms Pelle, the recommended support worker assistance was explained in these terms:

- 7am-9am - self-care support and implementation of social/emotional skill development strategies

• Self-care (1-hour) including eating breakfast, dressing, brushing teeth, and putting shoes on
• Development of social interaction skills (1-hour) including emotional regulation and transitions

- 3:30pm - 6:30pm - self-care support and implementation of social/emotional skill development strategies

• Self-care (1-hour), especially behaviour support following showering and other sensory heightening experiences which causes distress but for hygiene reasons cannot be avoided
• Development of Daily Living Skills and Community Participation (2-hours), to provide supervised 1-1 short trips to the local park and/or strengthen play skills within the home setting
• LVQH is not currently completing homework, and it is not expected that DSWs will engage with this task

- Family outing to the park or similar public environment (5-hours) including preparing and transitioning from at-home activities to the car and supporting emotional regulation upon return. While in the community, providing 1-1 supervision for impulse control, safety in public spaces, and co-regulation.

1. When answering the Agency's targeted questions,[64] Ms Featherstone also addressed how the proposed support worker assistance would be used, responding in similar terms and referencing her earlier report. In her answers Ms Featherstone also said the following about the benefits and outcomes expected to result from the inclusion of this support:

With consistent high-level, predictable supports, LVQH is likely to gain positive associations with self-care tasks through successful repetition with a neutral (non-family) person who can provide physical assistance and emotional regulation. The positive associations then provide opportunities for LVQH to become more engaged with self-care activities and have greater potential to develop independence. Similarly, successful community participation with 1:1 support allows LVQH to explore his community, new environments, and activities of interest, therefore reducing social isolation risks and aiming to increase LVQH's enjoyment in the community.

1. In answering a question about how support worker assistance would enhance LVQH's goals or improve his current or future capacity to operate independently, Ms Featherstone said:

With LVQH's Core Support funding reduced in his current plan, his mother ... is more involved in LVQH's care. Previous relationships that LVQH has formed with disability support workers have provided him with opportunities to reduce the dependency on his mother which increased his intrinsic motivation to learn new skills. The requested support worker assistance aims to enhance LVQH's goal achievement and improve his capacity to be independent by offering sustained and predictable attuned engagement. This 1:1 engagement by a neutral person is essential for fostering skill development and capacity-building (i.e. a 'safe' learning environment) for LVQH. Consistency of support will create the stability that LVQH needs to increase capacity and accelerate skill acquisition towards greater independence.

1. Further, Ms Featherstone opined that the requested support would be required for the next 12 months, with LVQH's functional capacity addressed at the end of that period. In responding to a question asking if the hours recommended were an optimal use of assistance by a support worker, and requesting that Ms Featherstone refer to consultation with therapist and informal supports in reaching her recommendation, Ms Featherstone said:

Yes, the recommended 30 hours per week of support worker assistance is considered an optimal use of assistance by a support worker. The recommended hours have been determined in consultation with LVQH's mother, the Behaviour Support Practitioner, and from evidence in the psychologist's report and previous reports from support worker services. The hours recommended have been itemised to cover the required tasks when LVQH needs 1:1 supervision.[65]

LVQH has a comprehensive behaviour support plan, which requests that support workers provide assistance to implement strategies effectively. LVQH's therapeutic plan includes collaboration with his informal supports, such as his mother and school, to provide consistent strategies across all settings. Training will be provided to Support Workers on how to implement existing successful strategies which increases the continuity and effectiveness of formal support. This comprehensive approach ensures that the allocated hours will be used efficiently to support LVQH's development and independence.

1. The comprehensive behaviour support plan referenced by Ms Featherstone was prepared by Ms Small, a Behaviour Support Practitioner.[66] Ms Small had previously prepared a support plan for LVQH in April 2024;[67] a behaviour support plan review report in May 2024;[68]and also later prepared an NDIS plan review report for LVQH in September 2024.[69] Ms Small's comprehensive behaviour support plan, dated 22 May 2024, included a lengthy section devoted to 'Understanding LVQH' which provided background information, and information about behaviours of concern and the restrictive practices employed. In a section describing LVQH's living skills, Ms Small noted:

LVQH has the skills to independently complete personal self-care tasks (e.g., dressing, showering, toileting). However, he usually refuses to complete these tasks independently and relies on his mother Ms L for assistance/prompting to complete these tasks for him. For instance, he will often ask Ms L to get him a glass of water or for Ms L to accompany him to the bathroom and wait outside.[70]

1. In her Behaviour Support Plan Review Report dated 10 May 2024, Ms Small listed 'additional supports' that would benefit LVQH, and said the following about 'Support Workers':

Support Workers - LVQH would benefit from support workers (trained in the Behaviour Support Plan) to provide opportunities for structured activities and support with skill building and building social relationships. This support is also essential to provide LVQH with opportunities to participate in community-based activities and interact with others, reducing his risk of social isolation.[71]

1. In her further NDIS Plan Review Report completed in September 2024[72], Ms Small recommended core funding for social and community participation, as follows:

Disability Support Worker involvement under NDIS funding is necessary to assist LVQH with daily living skills and to facilitate social participation and personal safety. This type of support would enable LVQH increased opportunities to develop his daily living skills and social skills interacting with similar aged peers. This would also alleviate a substantial burden from his sole carer Ms L who is at risk of carer burnout.[73]

1. In cross-examination, Ms L explained that she envisioned support worker assistance being used flexibly, and ordinarily (during school terms) for two hours in the morning on Mondays to Fridays - assisting with LVQH's routine and behavioural support, and for three hours in the afternoon, after school, particularly in assisting LVQH with his social and emotional regulation and in directing his energy. Ms L anticipated that the support worker(s) would assist LVQH with tasks of daily living, such as grooming and toileting in the morning and bathing in the evening, but also in engaging in play, supervising homework, following therapy recommendations and providing guidance to LVQH to engage in self-help and build his capacity to undertake these activities.
2. Further, Ms L gave evidence that support worker assistance for a period of five hours across a weekend would be used on one day, to assist in managing the risks of the family accessing the community through outings, for example, to the beach. Ms L explained that LVQH has obsessive interests (including his interest in garbage trucks) and will 'beeline and abscond' when his interests are triggered, which she finds difficult to manage when on her own, especially when LVQH's younger brother is also in attendance. This routine would change somewhat on non-school periods.
3. The Applicant also relied upon reports provided by Cronulla Nursing Services.[74] This service has been providing support worker assistance to LVQH under earlier plans. These reports recommended the provision of skilled disability support worker assistance for 30 hours per week, to 'build a trusting and therapeutic relationship with LVQH in turn assisting to promote independence and facilitate attending therapies.' [75]
4. The owner/manager (Director) of this service, Ms Vanesa McKirdy, also gave evidence at the hearing. Ms McKirdy is a clinical nurse consultant, with over 40 years' experience in nursing. Her business employs nurses and support workers. She has met LVQH on several occasions and had accessed notes regarding his support.
5. In cross-examination Ms McKirdy acknowledged that under LVQH's previous plans the hours of support worker assistance provided to him varied, from 15 to four hours. Ms McKirdy was asked for her views on the Agency's offer of 13 hours per week support, responding that it was 'inadequate.' Her evidence on this issue reflected that her view about the appropriate hours was based on the situation of Ms L and the needs and distress exhibited by her. Ms McKirdy also stated that the funding of positive behaviour support in LVQH's SOPS did not change that view.[76]
6. Doctor McDowell prepared a report regarding LVQH at the request of the Agency, and also gave evidence at the hearing. In his report Doctor McDowell outlined his qualifications and experience, which include holding a clinical appointment as Associate Professor at the University of Queensland and working in clinical practice as a Developmental Paediatrician for 25 years.[77]
7. Doctor McDowell's report was prepared 'on the papers'; that is, he was provided by the Agency with relevant evidentiary material[78] and prepared his report on the basis of information in those documents. He did not have the opportunity to meet with LVQH or talk to his family.[79]
8. Dr McDowell considered that the central challenge was LVQH's behavioural issues, and a primary tenet of his assessment was that it was not possible, on the information before him, to clearly differentiate which aspects of LVQH's behaviour could be attributable to his various diagnoses. In expanding upon this view, in the context of the supports needed by LVQH, Doctor McDowell commented in his report:

In LVQH's case, the issue appears to be his behaviour rather than his capacity to undertake daily living tasks at home. As noted above, it is not possible to determine from the information provided the extent to which this is a direct expression of his neurodevelopmental problems

Without an explanation for his behaviour (beyond attributing it to his diagnoses) it is not possible to ascertain the best mix of support services at home.[80]

1. In closing submissions, Counsel for the Agency summarised Dr McDowell's evidence and opinions as being that the central challenge is LVQH's behaviour, and that while LVQH appears to have the skills and capacity to manage daily living skills at home, the obstacles to him doing so are predominantly behavioural and for that reason the assistance required relates to helping LVQH calm down and cooperate, and not necessarily what would be required to do the living tasks themselves.
2. These views in turn informed Dr McDowell's conclusion that without an explanation for LVQH's behaviour, even if the requested supports were provided, the best outcome would be in easing the burden of day-to-day life, with no significant change in the fundamental problems LVQH experiences. Further, Dr McDowell considered that while the requested 30 hours of support worker assistance might help, it might also worsen the situation, if it was not effective or appropriate. Similarly, Dr McDowell opined that the support worker hours offered by the Agency could be more than enough if the methodologies of behaviour management were effective in managing the presenting situation as well as teaching LVQH how to better regulate.[81]
3. The Agency 's contentions on this support were that:

(ii) The Agency accepted that, upon consideration of the evidence, it is reasonable and necessary in all of the circumstances that LVQH be provided with support worker assistance, but not at the 30 hour rate requested. > > (iii) Noting the evidence about LVQH's reported behaviours of concern, particularly non-compliant and oppositional behaviours, and the reported escalation of those behaviours, the Agency accepts that these behaviours represent a risk of carer burnout and therefore support worker assistance is appropriate. > > (iv) It was accepted that positive behaviour support intervention via psychological treatment) was an appropriate support to include in LVQH's plan (Request 1). > > (v) Further support could be provided through the behaviour support practitioner to explore environmental and contextual adjustments to manage and mitigate risk regarding LVQH's behaviours of concern (Request 8). > > (vi) Support worker assistance at a frequency of 13 hours per week, comprising 10 hours per week for assistance with self-care and three hours per week for community participation, was reasonable and necessary. > > (vii) There is insufficient evidence which demonstrates that 30 hours per week of support worker assistance is reasonable and necessary; will be effective and beneficial to the Applicant; and represent value for money, in accordance with sections 34(1)(c)-(d) of the NDIS Act and Rule 3.1 of the Support Rules. > > (viii) Insofar as support worker assistance is requested to assist Ms L to transport LVQH to and from school, it is reasonable to expect a parent to undertake this task, pursuant to section 34(1)(e) and Rule 3.4 of the Support Rules. > > (ix) The Tribunal could not be positively satisfied that the full 30 hours sought by the Applicant, as opposed to the 13 hours proposed by the Agency, is reasonable and necessary in accordance with sections 34(1)(c)-(e) of the NDIS Act.[82]

4. As can be seen for the history of LVQH's plans, the Agency was adopting a 'step-down' approach to the provision of support worker assistance to LVQH. Under that approach, LVQH received a maximum of 15 hours per week assistance and a minimum of eight hours per week, under the plan immediately preceding his current plan, in which his support worker hours were reduced to zero per week.
5. Such a significant reduction in the provision of what has been an important support for a young child should obviously not occur without very careful consideration of all of the relevant factors bearing upon such a decision, and the available evidence. The Agency's approach and decision was explained in this way in its outcome advice following the internal review requested by Ms L:

Include Support Worker funding - in home and in the community 30 hours per week

NDIS Act section 34(1)(e) criteria: Reasonable expectation of families. Carers, informal supports and the community.

All NDIS supports must take into account what is reasonable to expect families, carers, informal networks and the community to provide. Supports funded by the NDIS are intended to complement the informal supports available, by considering what is reasonable for families, carers, informal networks and the community to provide. I am not satisfied this support is best provided by the NDIS.

Regarding your request for Support Worker funding, I acknowledge that LVQH had responded well to support workers in his previous plan and had assisted him with his daily routine (Item 12). However, the intention of support worker funding with a step down approach is to implement strategies and build the capacity of informal support to help establish routines, so children can complete certain daily tasks without the need for a support worker in future. LVQH's current BSP includes ongoing support from a Behaviour Support Practitioner who will aim to support him in developing his skills for emotional regulation, as well as to provide direct support to educate you in appropriate behaviour management techniques (Item 5).

If you require In Home Care (IHC) support, you can visit the In Home Care - Department of Education, Australian Government website to see if this service is right for you. As per our guidelines, we outline that we can't fund supports that mainstream and community services should provide, even if the other service system doesn't actually provide it. The NDIA does not make up for other organisations and services, where it's their responsibility to fund or provide a service you need. Therefore, at this point in time, your request for Support Worker funding has been declined.[83]

1. The Agency's approach of focusing on building LVQH's capacity and skills through the provision of capacity building supports while stepping-down his support worker hours is understandable, if it was supported by evidence that this strategy was effective and beneficial for LVQH. There is, in the Tribunal's view, insufficient evidence to support such a conclusion. For example, in her September 2024 report LVQH's behaviour support practitioner, Ms Small, noted that LVQH was 'working towards' achieving the goals in that plan. This measure sat below options of 'partially,' 'largely' and 'fully' achieving those objectives. One of the barriers noted by Ms Small as impacting the planned behaviour support intervention was the funding available in LVQH's current plan.[84]
2. The evidence reflects that there has been an escalation in the behaviours of concern exhibited by LVQH across the period relevant to this review. In light of that evidence, it is difficult to justify the decision to remove all support worker assistance in LVQH's current SOPs.
3. The Tribunal notes the Agency's concession, which on the evidence is considered appropriate, that support worker assistance for LVQH is a reasonable and necessary support. Implicit in this position is the acceptance that provision of this support is necessary to meet LVQH's needs arising from an impairment in relation to which LVQH meets the access requirements in the NDIS Act. The Tribunal is also satisfied that the provision of support worker assistance to LVQH is reasonable and necessary, and meets the criteria in section 34(1)(aa) of the NDIS Act. The contest on this support relates to the amount of such assistance that should be included in LVQH's SOPS.
4. On that issue, the Tribunal is not persuaded that the amount of assistance sought on behalf of the Applicant, being 30 hours each week, is reasonable and necessary.
5. The Director of the service that has been providing support services to LVQH, Ms McKirdy, in recommending the 30 hours of assistance sought, expressed her opinion that the 13 hours offered by the Agency was inadequate. As noted, Counsel for the Agency explored this view at some length with Ms McKirdy during her evidence, and the Tribunal accepts the Agency's submission that it was based largely on the stress exhibited by Ms L, rather than LVQH's needs.
6. It is to be noted that the plans around how this frequency of assistance would be used have evolved during the review; for example, as previously noted LVQH's Occupational Therapist, Ms Featherstone, envisioned in her report of September 2024 that the bulk of the hours (20 per week) would be directed towards community access, with only 10 hours of in-home assistance.[85] In her later report of March 2025 Ms Featherstone opined that five hours of assistance were required each week day; two hours in the morning for self-care and skill development strategies, and three hours in the afternoon, similarly for self-care and skills development, but also to be used for community participation activities.[86]
7. In looking at the provision of in-home assistance to LVQH by a support worker, the evidence of Ms L and the relevant allied health witnesses is to the effect that these hours would be used to assist and supervise LVQH in undertaking daily activities of self-care, and in regulating his emotions and behaviour.
8. There is some common ground in the evidence of LVQH's Behaviour Support Practitioner, Ms Small, and that of Dr McDowell, that LVQH has capacity to perform these daily living tasks, and that the existing challenges arise from his behaviours; for example, the need to have his mother present for some activities.
9. Ms Small's evidence lends weight to the concerns Dr McDowell expressed about the uncertainty attaching to the provision of additional support hours to LVQH. Those concerns go squarely to the issue of whether the frequency of support sought would be, in the language of section 34(1)(d) of the NDIS Act, effective and beneficial for LVQH. Adding more support worker hours that are not effective in assisting and developing LVQH's skills and capacity will not be beneficial. Nor would it meet the section 34(1)(c) criterion of representing value for money.
10. In considering whether additional hours beyond those offered by the Agency are likely to be effective and beneficial for LVQH, there may also be a benefit for Ms L in terms of supporting her in her role as LVQH's mother and primary carer, but the focus of section 34(1)(d) is upon LVQH as the participant.
11. Additionally, the responsibility of parents to provide substantial levels of care and support is recognised in Rule 3.4 of the Support Rules. Ms Featherstone's report[87] provides evidence about the risk of carer burnout that Ms L faces, and Ms L herself gave substantial and at time compelling evidence about her circumstances and the impacts upon her, and LVQH's younger brother, of LVQH's impairments and his behaviours of concern. The Tribunal notes that outside of LVQH's father, there is limited assistance available to Ms L through her family or other informal networks. In considering the extent of those risks, the Tribunal accepts that the provision of support worker assistance is necessary.
12. However, the Tribunal considers that the frequency of support worker assistance offered by the Agency, supplemented with the regular assistance provided by LVQH's father for on average three and at times four nights per fortnight, together with the provision of respite assistance (Request 2) which the Tribunal has found to be a reasonable and necessary support for LVQH (as explained below), should address those risks significantly and does not go beyond what it is reasonable to expect Ms L, as LVQH's parent, to provide by way of care and support.
13. Further, the behaviour support plan developed for LVQH places significant importance upon equipping LVQH's support network with the skills and knowledge to consistently implement the strategies and interventions outlined in the plan. As LVQH's primary support, Ms L has a key role in this.
14. It must also be noted that together with the offered hours of support worker assistance, LVQH will be providing with the abovementioned supports for positive behavioural support and psychology sessions, which are directed towards addressing LVQH's behaviours of concern, which impact upon his capacity to perform the daily living activities for which support worker assistance is sought. There is now a very comprehensive behaviour management plan in place for LVQH, which is directed toward the implementation of strategies to manage LVQH's behaviours of concern, and reducing presentations of those behaviours.[88]
15. Under the guidance of that plan, it is to be expected that over its lifetime the opportunity will present for an informed evaluation of what is being achieved through the provision of support worker assistance for LVQH. This should inform future decisions about this support, and particularly about the potential benefits for LVQH of additional assistance.
16. It can also be noted, as the Agency's Counsel explained in her closing submissions, that the Agency's proposal for support worker assistance represents the highest number of consistent hours of support that LVQH has had or been offered under his plans, and also provides certainty about those hours.[89]
17. At this time the Tribunal is not persuaded that there is sufficient evidence to support a finding that the requested 30 hours of support worker assistance is reasonable and necessary.
18. The Tribunal is persuaded that the 13 hours of support worker assistance offered by the Agency meets the requirements of section 34(1) and is a reasonable and necessary support. Specifically, the Tribunal finds that frequency of support hours:
    1. is necessary to address LVQH's needs arising from an impairment in relation to which he meets the NDIS access criteria - section 34(1)(aa);
    2. will assist LVQH to pursue the goals in his plan about further developing his emotional regulation skills and his self-care skills - section 34(1)(a);
    3. will assist his social participation, principally through building his skills and supporting community participation activities - section 34(1)(b);
    4. represents value for money in that the associated costs are reasonable, relative to the benefits to be achieved, and there are not comparable supports that could achieve the same outcome at a substantially lower cost - section 34(1)(c) and Rule 3.1 of the Support Rules;
    5. will likely be effective and beneficial for LVQH, to support him to develop his skills and capacity - section 34(1)(d);
    6. takes into account what it is reasonable to expect LVQH's parents to provide by way of care and support - section 34(1)(e) and Rule 3.4 of the Support Rules; and
    7. is an NDIS support for LVQH - section 34(1)(f) and Item 14 of Schedule 1 of the Transitional Rules - and appropriately funded under the NDIS - section 7 of the Miscellaneous Transitional Rules.
19. Support worker assistance at a frequency of 13 hours per week should be included in LVQH's SOPS.

Request 2 - in-home respite for four weeks per year

1. Ms L gave evidence at the hearing about this request and how this support might be used, if it was included in LVQH's SOPS. She envisioned that respite would be accessed for the purposes of undertaking holidays; that is, a support worker would accompany the family on holiday, and that respite support would also be accessed in the home, in the form of 10 hour blocks of overnight care, with a support worker coming to the house. In cross-examination, Ms L gave evidence that this support would:
   • enable her to rest, sleep and have a break;
   • enable LVQH to have a clear break from her, and from his younger brother; and
   • allow her to refresh, and for LVQH to build his capacity and skills.
2. Ms L also gave evidence about the limited amount of informal support that her parents were able to provide, describing this as infrequent and in the order of taking the children for overnight stays every six months or so, and visiting more regularly.
3. Ms L also addressed respite support in some of her written submissions filed in the review, stating 'I have reached a state of carer fatigue and burn out,'[90] and also:

Respite would allow me and to have much needed time apart from LVQH, whilst also ensuring LVQH's needs, wants and functional capacity are being addressed. For myself to have planned time away from LVQH would mean I am able to get the respite needed to continue to provide most of LVQH's care. It will also allow me to focus on [LVQH's brother], so I can address his complex needs of emotional attachment disorder and ADHD.[91]

1. Ms L's written submissions filed prior to the hearing also addressed and rejected the position of the Agency (as perceived by Ms L) that sufficient respite arose from LVQH spending some nights with his father, and also attending school and outside-hours school care.
2. In her evidence Ms McKirdy noted that respite care would enable Ms L to have some one-on-one time with LVQH's brother.[92] The Clinical Nursing Report provided by Ms McKirdy's service[93] included a recommendation for 'maximum respite care annually for Ms L and [LVQH's brother].' That report also noted that:
   • Ms L 'is struggling with extreme carers' fatigue and has voiced without appropriate support for LVQH she will be incapacitated to fulfill her role as a parent."
   • Ms L 'works two separate jobs and utilises government assistance such as before and after school care to remain a functioning and contributing member of society. Ms L is also responsible for attending all therapies including transportation, currently totalling over 60km per week.'
3. As noted above, LVQH's Occupational Therapist (Ms Featherstone) had Ms L complete a Caregiver Burden Assessment in August 2024, resulting in score of 81/96 and a finding that Ms L was at risk of 'burning out.' The Occupational Therapist recommended respite as a core support for LVQH:

Respite is essential for Ms L, as it allows her to take necessary breaks from the demands of caregiving, ensuring she can maintain her own well-being and continue to provide effective support for LVQH's needs.[94]

1. Again, this recommendation was further developed in the second Occupational Therapy report provided during the hearing (Exhibit 5):

LVQH's mother is experiencing carer burnout and continues to provide appropriate care for LVQH with consequences to her own wellbeing and social participation. LVQH's mother, Ms L, reports to have lost contact with many of her friends and is often too exhausted for social interactions when LVQH does occasionally stay with his father because of LVQH's overnight (multiple wakings needing 1-1 care) and intense daytime care need. LVQH's mother works while LVQH is at school, as do most parents, therefore school time is not considered a suitable alternative time for carer respite activities.

A combination of in-home and short-term accommodation respite are likely to meet LVQH's needs and support his mother's ability to sustain her informal carer duties. The following outlines the intended use for these respite hours -

- Two (2) supported school holiday trips (5 days, 4 nights each) where the family will fund the daily activities and travel

• Second/separate accommodation for LVQH and overnight disability support workers
• LVQH often develops new routines better when provided with a new location without existing environmental cues triggering previous behavioural responses. Observed when first interacting with OT in the home vs clinic setting. Novelty from the clinic setting supported development of new relationship
• Self-care and 'down-time' (outside of planned family activities) to be supervised by disability support workers to allow Mum to rest and connect with LVQH's brother
• This type of support also allows LVQH to participate in community activities with his family, safely.

- Two (2) days, One (1) night blocks of respite - twice per term and one (1) during summer holidays (18 days per year)

• Increased support worker hours to cover 6am-9am for self-care and emotional regulation
• 9am - Mum to drop LVQH to school
• 3pm - Disability Support Workers to collect LVQH from school and complete all afternoon routines, including self-care, meals, and social interactions. Mum will be out of the house with LVQH's sibling, visiting her friends, and family member (who cannot provide disability-specific supports).
• Evening routine - Disability Support Workers to assist with bedtime routine o Overnight - Mum returns and provides supervision in the home

Total respite is therefore 10 days (24/7) in a new location, and 18 days in-home care with support workers increased to 9-hours per day, not including any overnight support. These options allow Mum to engage in her own self-care and reconnect with informal social supports that will provide future wellbeing resilience for Mum's ability to sustain her carer duties.

1. Ms Featherstone also responded to targeted questions[95] asked of her by the Agency.[96] In her answers, Ms Featherstone advised:
   • Her recommendation for four weeks of in-home respite per year to be included in LVQH's SOPS:
     • includes 'providing time for Ms L to be away from her substantial additional caregiving duties related to LVQH's disability; co-regulation, physical assistance for self-care tasks, and managing complex behaviours';
     • 'other parents of seven year-old children do not manage these complex tasks as 'part of typical parenting responsibilities'.'
     • would 'enable Ms L to engage in her own self-care/leisure activities which support her capacity to sustain ongoing informal caring responsibilities.'
     • would 'allow Ms L to complete household domestic duties that she otherwise does not have time to complete when caring for two children one with substantial complex needs.'
     • was based on her view first that LVQH would not currently benefit from being away from his mother at night as they co-sleep and therefore in-home respite with increased hours (Ms Featherstone suggested 6-9am and 3-10pm - 10 hours per day) will allow Ms L to have respite during the day; and secondly, this would reduce the overall costs of respite compared with centre-based services.
     • is grounded in best practice guidelines and supported by standardised assessments, noting the Caregiver Burden Inventory assessment of Ms L (as noted above).
     • referenced commentary on the NDIS website that 'respite supports participants and their carers by giving carers short breaks from their caring responsibilities. For carers, taking some time off can help them better manage their own health and improve their well-being.'
   • The hours that LVQH attends school are insufficient to alleviate ongoing carer burnout, and before and after school care and other activities in the mainstream school environment were not available due to LVQH's needs for high-intensity support due to his behaviours.
   • The recommended level of respite support would help LVQH achieve his goals by reducing the caregiver burden on Ms L, improving her capacity to provide the co-regulation LVQH requires which in turn will increase his sense of safety, which is foundational to achieving his developmental goals such as self-care, safety awareness, emotional regulation and other skill-building.
   • Expected benefits and outcomes of providing respite support would include:
     • significant improvements in the well-being of LVQH and Ms L.
     • reducing caregiver burnout, ensuring Ms L 'can continue to offer the consistent, high-intensity care he requires.'
2. In answering a specific question about whether respite at a level lower than the 28 days recommended could still achieve the same benefits and outcomes, Ms Featherstone references a section in her 27 September 2024 report[97] dealing with the risks associated with LVQH's current situation, and answered that the 28 days sought were required to achieve the benefits and outcomes identified, and '[F]ewer hours will not address the ongoing nature of carer burnout as periods between respite days will not allow Ms L to fully recover from carer stress that she experiences ...'
3. Doctor McDowell was asked by the Agency to address respite support in his assessment. He noted that one of the guiding principles regarding the amount of support that an Applicant's parents should provide where that Applicant has ASD Level 2 and ADHD was that parents need to undertake parenting duties, including learning how to manage 'special' (that is, disability related) situations, but that this also required additional supports of professionals to educate and guide the parents; trained individuals to provide services that are too difficult, complex or inappropriate for the parents to provide; and '[G]eneral assistance when the workload of day-to-day life is beyond reasonable for parents. This can take the form of day-to-day support as well as episodes of respite care.'[98]
4. When specifically asked to comment in his report as to whether he agreed with the request for four weeks of in-home respite per year, Doctor McDowell stated:

In the calculation of support, including in-home respite, I would begin with family's ability to undertake day to day life. If this family falters, if LVQH's mother's mental health worsens, the long term will be worse for LVQH in addition to greater potential future liability for

the NDIS (and other government systems). For this reason I support respite and home supports with the goal of 'manageability' of day to day life. This is not the same as capacity building.[99]

1. When asked to comment in his report on whether respite would duplicate the support worker assistance (Request 3) Doctor McDowell said:

It could be duplication. It depends on the purposes of the support work - the extent to which it is functional and extent to which it is intended for capacity building.[100]

1. Doctor McDowell also opined in his report that he found difficulty in recommending a set number of days for in-home respite in the absence of a behaviour plan that he could predict as likely to work.[101]
2. Doctor McDowell was asked by the Tribunal to expand upon these views when giving his evidence. Noting again the difficulty he perceived as arising from the level of understanding of LVQH's behaviours and the implications of this for his behaviour management, Doctor McDowell said:

But the working principle I've got is that if you're operating in the world in the best interests of the child, making sure that the family is going to survive and be happy and do its job properly is probably right at the front of considerations.

So I've got a strong bias towards helping the family survive and do it so that the kid has the best chance of growing up with a good life.

Exactly what that means in terms of week to week support and periods of respite care, I really don't know. I mean, other families with single parents manage this. There's such huge diversity. I think it's just a, a kind of a calculation based on what's fair and reasonable.

1. The provision of respite was also recommended by the consultant paediatrician who was engaged by Ms L to provide a 'second opinion' regarding LVQH's 'behavioural challenges';[102] and LVQH's speech pathologist.[103]
2. The Agency's central contention on Request 2 was that it was made in the terms proposed for reasons to enable Ms L to have time to engage in her own self-care, leisure activities and other domestic duties and such outcomes would be achieved by the provision of additional support worker assistance relating to Request 3. Further, the Agency noted that the inclusion of positive behaviour support in LVQH's SOPS will also provide support to manage and mitigate risk in respect of LVQH's behaviours of concern.
3. For these reasons, the Agency contended that respite support was not reasonable and necessary as it duplicated other supports delivered under alternative NDIS funding.
4. Further, the Agency submitted that LVQH's attendance at school provided practical respite for Ms L, and further noted that:

... the Applicant has been attending out of school hours care for a number of years. The Respondent considers that the implementation of behaviour and inclusion supports will assist the Applicant to participate in this type of care and that it is in the best interests of the Applicant to participate in social settings such as outside of school care, rather than being at home with a one-on-one support worker.[104]

1. For these reasons, the Agency submitted that the Tribunal could not be positively satisfied that the respite support requested was reasonable and necessary in all of the circumstance, in accordance with sections 34(1)(c) - (e) of the NDIS Act and Support Rule 5.1(c).[105]
2. Support for short term accommodation and respite is recognised in Item 5(b) contained in the Table in Schedule 1 of the Transitional Rules as an NDIS support (unless otherwise provided).
3. The Tribunal is satisfied that the evidence establishes that Ms L currently carries a heavy load in being the primary carer for LVQH, in the context of her working responsibilities, the needs of LVQH's brother, Ms L's own mental health condition and the limited nature of other informal and family supports that are available. While as the Agency notes, Ms L seeks the inclusion of respite for the reasons noted, being to have time to engage in her own self-care, leisure and other domestic activities, it is important to note that the underlying purpose of the support sought as explained by Ms L is effectively to assist in sustaining her role as LVQH's primary carer and to support LVQH.
4. The Tribunal does not accept that the provision of support worker assistance relating to Request 3, or the inclusion of positive behaviour support in LVQH's SOPS, operate so as to provide a sound basis to conclude that the inclusion of respite support would duplicate these supports. There may an element of overlap in how the regular day-to-day support worker assistance hours operate in providing Ms L with some short breaks, but this outcome is incidental in the Tribunal's view, and the following observations of the Tribunal in the case of JQJT v NDIA [2016] AATA 478 are relevant in this context:

The NDIA submits that the purpose of the community access support is to assist JQJT's social participation and not to provide his parents with respite. We accept that submission but, when considering the wellbeing of any family caring for a person with serious disabilities, the two cannot readily be separated; respite is a secondary benefit that goes to the well-being of the family.[106]

5. As noted above the Support Rules[107] recognise that while it is normal for parents to provide substantial care and support for children, in deciding whether funding or provision of a support takes account of what it is reasonable to expect families and carers to provide, regard must be had to whether the child's needs are substantially greater than those of children of a similar age, and the extent of any risks to the wellbeing of the participant child's family members or carers.[108]
6. The Tribunal accepts the evidence that Ms L is currently at significant risk of carer burnout. The risks to her wellbeing are appreciable.
7. Further, the weight of the professional evidence relating to the requested support recognises the potential benefits of this support for LVQH and the sustainability of Ms L's care. Rule 7.1 of the Support Rules notes the Agency's responsibility for providing supports (including respite) for children, families and carers, required as a direct result of a child's disability, that enable families and carers to sustainably maintain their caring role.
8. In the Tribunal's view, inclusion of respite in LVQH's SOPS is consistent with the principles set out in section 5(f) of the NDIS Act which provide that the best interests of LVQH as a child are paramount, and full consideration should be given to the need to promote LVQH's development, and particularly to strengthen, preserve and promote positive relationships between LVQH and his immediate family members.[109]
9. Having regard to all of the evidence and the parties' contentions, the Tribunal is satisfied that the requested support of 28 days respite is reasonable and necessary. In so finding, the Tribunal is satisfied that the requested support is necessary to address needs of LVQH which arise from impairments in relation to which LVQH meets the access requirements.[110] Turning to the other requirements set out in section 34(1) of the NDIS Act, the Tribunal finds the requested support will:
   • Assist LVQH to pursue his plan goals of developing his emotional regulation, his learning and attention and self-care skills and his social development, and reducing his dependence on his parents - section 34(1)(a).
   • Assist LVQH (and Ms L) to undertake activities to facilitate LVQH's social participation - section 34(1)(b).
   • Represents value for money in that the costs of the support are reasonable, relative to the benefits to be achieved and the cost of alternative support, noting the considerable cost that would result if Ms L was unable to continue to care for LVQH for any extended period - section 34(1)(c).
   • Will be, or is likely to be, effective and beneficial for LVQH, having regard to the weight of the professional evidence as noted above - section 34(1)(d).
   • As noted, takes account of what it is reasonable to expect LVQH's family, and particularly Ms L, to provide by way of support to LVQH - section 34(1)(e).
10. The requested respite support should be included in LVQH's SOPS.

Requests 5 and 7 - physiotherapy at 10 sessions per year, and exercise physiology at 52 hours per year

1. These two requests can be considered together, given the relevant evidence and how it was presented during the review.
2. In making the decision under review, the CEO's delegate concluded that the requested support of physiotherapy at 10 sessions per year did not meet the criteria of 'value for money' in section 34(1)(c) of the NDIS Act, on the basis that there was insufficient information to confirm that alternative informal supports, which could potentially benefit LVQH, had been tried.[111] That decision did not deal specifically with exercise physiology.
3. On behalf of LVQH, Ms L contended that both the requested supports of physiotherapy and exercise physiology were reasonable and necessary. In her pre-hearing submissions Ms L contended:
   • In response to the decision under review, that there was no alternative 'informal support' that could replace physiotherapy.[112]
   • That she was willing to negotiate on the combined hours of physiotherapy and exercise physiology that might be provided.[113]
   • That LVQH 'is unable to regulate his emotions, has poor motor skills and hyperactivity. Physiotherapy and exercise physiology will assist LVQH in developing skills.'[114]
4. In her evidence and submissions at the hearing Ms L made similar points, referring to these supports as assisting to build LVQH's skills and capacity, and noting also that they would help LVQH by directing his energy.
5. Some relevant allied health reports were provided on behalf of LVQH. A paediatric physiotherapist who conducted an assessment of LVQ in early 2023 advised as follows:

On assessment, LVQH was co-operative and able to follow instructions well to complete required tasks. LVQH walked independently with a heel toe gait and appropriate foot progression angles. He generally walked quite quickly, but had an appropriate gait pattern when walking at a more regular pace with his hand held. He walked on his toes on the rare occasion when he was excited or stimulated. He was able to run with good speed, but tended to skip or gallop at times when excited. He stood with reasonable foot and lower limb alignment. He sat with good sitting posture in various positions and was able to sustain static positioning for a reasonable length of time.

On examination, LVQH had full hip flexion and knee flexion and extension range ... [H]is ankle dorsiflexion was sufficient ... . His upper limbs were not formally tested, but functionally had range within normal limits. He had no increase in muscle tone or spasticity and reflexes were not tested at this time.

Stairs were able to be climbed reciprocally ascending and descending. His strength was age appropriate with LVQH being able to squat well with good alignment at most times. He could easily walk on his toes and heels and perform animal walk such as bear and crab walk. He could walk along a beam and forwards and backwards and along a line with only minimal loss of balance. He was able to jump repetitively with 2 feet together with good height and amplitude and perform a standing broad jump of 150cm. He could hop with good strength, speed and amplitude and change directions. He could stand and balance on each leg for only a few seconds at a time. More complex coordination skills such as star jumps required repeated practice and were performed with reduced coordination of speed and control. He was unable to perform scissor jumps which require more alternating coordination. When kicking a soccer ball and dribbling LVQH had developing control. However when asked to move around obstacles with the ball or run to kick a moving ball he was noted to gallop or skip rather than run. This was more obvious when he was excited or cognitively focused on another task.

1. The physiotherapist noted the goal that was in LVQH's then operative NDIS plan about improving his gross motor development and his balance and co-ordination skills, and concluded that 'LVQH presents with reduced high level coordination and balance and this is currently affecting his running gait and limits his full and active participation in his community soccer team.'
2. A report dated 1 October 2024 was provided by an Exercise Physiologist.[115] Much of this report dealt with LVQH's presenting problems (described as poor behavioural control and emotional regulation, lack of independence, limited access to the community and poor nutrition) and his treatment to date. However, the Exercise Physiologist reported upon a number of outcome measures used to measure LVQH's function. These measures reflected that LVQH:
   • Was a normal weight for his age.
   • Scored slightly above the average score for boys his age in the High Level Mobility Assessment Tool, which 'is used to evaluate higher level gross motor skills to determine capacity to engage in running, jumping, hopping and stair climbing.
   • Scored in the 50th percentile on a muscular power test (standing on two feet and leaping forward as far as possible).
   • In undertaking a two-minute running test, had a running pattern that 'was okay for his age', although his pre-test resting heart rate was on the 'higher end of the normal range.' LVQH was below the average for boys under nine years of age in a 10-metre sprint.
   • Performed 17 push-ups in a bodyweight resistance assessment, placing him in the 90th percentile.
   • Scored extremely high for levels of stress and anxiety on the Depression, Anxiety and Stress Scale.[116]
3. The Exercise Physiologist concluded that weekly exercise physiology sessions would help LVQH to reach his goals of improving gross motor function and coordination 'so he can safely participate in the activities of daily living in the future.'[117] Predicted outcomes, should this support be provided, were also explained.
4. Further to the above report, a Senior Accredited Exercise Physiologist from the same allied health practice provided an additional 'Supporting letter of Recommendation' dated 29 October 2024,[118] supplementing the report and also explaining the differing focus of physiotherapy and exercise physiology and noting research findings regarding children with autism and exercise.
5. The Agency contended that LVQH did not present with substantial functional deficits in mobility such that specialised exercise therapy responses were required, and that there was insufficient evidence as to how these requested supports would be effective and beneficial for LVQH; and how they represented value for money. Consequently, the Agency submitted that the Tribunal should not be satisfied that the requested supports are reasonable and necessary, in accordance with sections 34(1)(c) and (d) of the NDIS Act. It was also contended that the Tribunal could not be positively satisfied that the requested supports are most appropriately funded or provided through the NDIS, rather than through other general systems of service delivery.[119]
6. In its Statement of Facts, Issues and Contentions, the Agency submitted that the evidence of 'multiple carers and treating practitioners do not refer to any significant physical impairment experienced by the Applicant' and noted references to him being 'active' and participating in school sport, soccer and swimming lessons.[120] The Agency also specifically noted some of the passages from the assessment conducted by LVQH's paediatric physiotherapist, and the testing results reported by his exercise physiologist, as cited above.[121] Further, the Agency noted that there was some contrary evidence before the Tribunal regarding LVQH's skills to independently complete personal self-care tasks, citing the Behaviour Support Plan prepared by Ms Ellen Small, Behaviour Support Practitioner and dated 22 May 2024,[122] which opined that LVQH had the skills to perform these tasks, although he usually refused to do so independently and relied on his mother for assistance and prompting. For completeness, the Tribunal notes that in a later review report of that plan, dated 27 September 2024, Ms Small recommended the provision of physiotherapy 'to address challenges that impact LVQH's mobility, coordination, and overall quality of life'.[123]
7. The Agency also relied on the evidence given by Doctor McDowell in his report (Exhibit 3) and at the hearing, which was that on the information provided to him,[124] he did not consider these supports to be justified. When asked by the Tribunal to expand on that opinion, Dr McDowell explained his understanding that the NDIS required impairments to be 'severe and permanent'[125] and he saw no evidence of that or of any motor control disability, beyond what he described as 'clumsiness', which he considered would be better addressed through supporting LVQH to engage, and providing coaching, in activities that he enjoyed, rather than professional therapies.[126]
8. In considering the requested supports, again no issue arises in relation to section 34(1)(f) of the NDIS Act. Exercise physiology is a category of support specified in column 1 of the Table to Schedule 1 of the Transitional Rules (that is, supports that are NDIS supports unless otherwise provided). In the Schedule 1 Table, exercise physiology is included together with 'personal well-being activities',[127] and relevant supports for that item are described in the following terms:

Supports that maintain or increase physical mobility or well-being through personal training or exercise physiology to address the functional impact of the participant's disability.

(a) accessing services from an appropriately qualified professional;

(b) assessment and development of a personalised exercise program which aims to increase or maintain a participant's functional capacity;

(c) maintenance of muscle strength, range of motion, balance and mobility.

1. Physiotherapy is not specifically identified in the Schedule 1 Table, and would seem to best align with Item 34, which is entitled 'Therapeutic supports', with the following description of supports:

Supports that provide evidence-based therapy to help participants improve or maintain their functional capacity in areas such as language and communication, personal care, mobility and movement, interpersonal interactions, functioning (including psychosocial functioning) and community living.

This includes an assessment by allied health professionals for support planning and review as required.

1. The abovementioned submissions and evidence of Ms L indicate that the primary intent around these requested supports would be to improve LVQH's skills and capacity, and also to direct his energy. These aims do not readily align with the support descriptions contained in the Schedule 1 Table. The functional impacts sought by Ms L for LVQH in completing tasks such as self-care would also be addressed to an extent by the provision of support worker assistance for LVQH, as per Request 3, which is to be included in LVQH's SOPS, and the related positive behaviour and psychology supports. This raises a prospect of possible duplication of supports, and the potential application of Rule 5.1(c) of the Support Rules, which set out some general criteria for supports, and provides:

5.1 A support will not be provided or funded under the NDIS if:

(c) it duplicates other supports delivered under alternative funding through the NDIS.

1. Further, having considered the relevant evidence, the Tribunal is of the view that the Agency's submissions about these supports are persuasive. While it is acknowledged that the requested supports are aligned with LVQH's plan goal about improving his gross motor development, there is a lack of evidence to establish that at this time LVQH has any disability related physical impairments in respect of which these forms of treatment would, if provided, deliver effective and beneficial outcomes and further, that they represent value for money.
2. The evidence reflects that behavioural factors, rather than physical impairments, are impactful upon LVQH's capacity to undertake many tasks, including the self-care activities identified in evidence by his mother. In another example from a different context, while LVQH's plan goal references playing soccer, the evidence established that he has been able to play this sport at school, and that any barriers to his effective participation arise more from his social skills, rather than any physical or mobility issues.[128]
3. The allied health evidence noted above establishes that LVQH scored slightly above average for his 'high level mobility'. He has good posture, flexion and strength for his age. His running pattern is described as 'okay for his age' and he can run 'with good speed', albeit with a tendency to skip or gallop when excited. That might be thought not to be unusual for a child of LVQH's young age. The Vineland Scale assessment conducted by LVQH's Occupational Therapist, Ms Featherstone, found that his gross and fine motor skills scored as a 'relative strength.' The Tribunal also notes the comments of Ms Featherstone regarding LVQH's mobility; while recommending physiotherapy as a capacity building support for LVQH, Ms Featherstone stated:

'LVQH's mobility at home and in the community is not directly affected by his primary disability; however, additional demands, such as social and sensory challenges, increase his cognitive load, often resulting in physical fatigue, withdrawal, or reduced capacity in other functional domains.'[129]

1. The collective effect of this evidence is, as the Agency contends, that LVQH does not present with substantial functional deficits in mobility such that specialised exercise therapy responses are required.
2. The evidence noted above also, in the Tribunal's view, diminishes the conclusion expressed in the paediatric physiotherapy assessment report that LVQH presented with reduced high-level coordination and balance which ' ... is currently affecting his running gait and limits his full and active participation in his community soccer team.'
3. As noted, Doctor McDowell was of the opinion that LVQH's needs in relation to these requested supports would be better served (as an alternative to specialised therapies), through supporting him to engage in activities of interest, including through providing support in the form of coaching.
4. The evidence is not sufficient to satisfy the Tribunal as to the criteria under section 34(1)(c) and (d) of the NDIS Act; namely, that the requested supports represent value for money, and will be, or are likely to be, effective and beneficial for the participant.
5. Having concluded that some of the mandatory criteria under section 34(1) have not been met in relation to these requested supports, it is unnecessary for the Tribunal to proceed to consider the remaining section 34(1) criteria. The Tribunal finds that the requested supports of physiotherapy at 10 sessions per year, and exercise physiology at 52 hours per year are not reasonable and necessary supports within section 34 of the NDIS Act.
6. The Tribunal also finds that given the evidence about LVQH's current physical abilities and the purpose of the requested supports, as expressed by his mother, provision of the requested supports would to an extent (at least) be a duplication of an existing support, being LVQH's support worker assistance, which by rule 5(1)(c) of the Support Rules means that the requested supports cannot be provided or funded under the NDIS.

1. The Tribunal sets aside the decision under review and this matter is remitted to the Agency for reconsideration with a direction that LVQH's Statement of Participant Supports is to include the following additional supports:
   1. Psychology sessions at a frequency of 25 sessions per year.
   2. In-home respite at a frequency of 28 days per year.
   3. Support Worker assistance at a frequency of 13 hours per week.
   4. Dietetics at a frequency of 10 hours per year.
   5. Support coordination at a frequency of 36 hours per year.
   6. Positive behaviour support at a frequency of 70 hours per year.

By his mother, and Mr Ben Armstrong of People with Disability Australia

[1] Closing submissions made by Ms L, 18 March 2025.

[2] Autism Spectrum Disorder, Level 2 (ASD).

[3] Exhibit 1, T-Documents, Document T23, NDIS Plan (20 April 2024-20 April 2025), pages 158-177.

[4] T-Documents, Document T8, Interaction Notes, section 100 request, 23 April 2024, pages 43-45.

[5] T-Documents, Document T2, Internal Review Decision, 25 July 2024, pages 10-17.

[6] T-Documents, Document T1, Application for Review of Decision (undated), pages 1-2.

[7] Administrative Review Tribunal Rules 2024, Rule 5(3).

[8] Adopting the numbering used in the Agency's Statement of Facts, Issues and Contentions (Hearing Bundle, Document R3, [7]).

[9] Email from Mr Armstrong dated 28 February 2025.

[10] Hearing Bundle, Document R3, Agency's Statement of Facts, Issues and Contentions, [9].

[11] Report of Early Links Occupational Therapy Services dated 13 March 2025.

[12] Hereafter referred to as Doctor McDowell.

[13] Exhibit 3 (this version replaced an earlier version that had initially been contained within the Hearing Bundle).

[14] See Administrative Review Tribunal Act 2024, section 56(1)(a).

[15] Email dated 14 March 2024 from Moray & Agnew.

[16] This section is adapted from previous decisions of the Member.

[18] Shi v Migration Agents' Registration Authority [2008] HCA 31; (2008) 235 CLR 286, 324-325, 327 (Kiefel J).

[19] Administrative Review Tribunal Act 2024 (Cth), s 54.

[20] Shi (note 17) 300-301 (Kirby J); 314-315 (Hayne and Heydon JJ); 327-328 (Kiefel J).

[21] Beezley v Repatriation Commission [2015] FCAFC 165 [68], as applied in Sutherland v National Disability Insurance Scheme [2024] AATA 411 [53].

[22] National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth), s 2.

[23] The Agency addressed these matters in its Statement of Facts, Issues and Contentions (Hearing Bundle, Document R3, [24]-[36].

[24] Item 132 of Schedule 1 of National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024.

[25] McGarrigle v National Disability Insurance Agency [2017] FCA 308 (McGarrigle), at [91]-[93].

[26] National Disability Insurance Agency v WRMF [2020] FCAFC 79 (WRMF), at [149]-[152].

[27] This section is also repeated in Part 1 of the Support Rules.

[28] Which in turn reflect some of the requirements under section 34(1) of the Act.

[29] [2017] FCA 308.

[31] See https://www.ndis.gov.au/about-us/operational-guidelines

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

[33] Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 (President Brennan J).

[35] Ibid, and also Hearing Bundle, Document A31, pages 112-113 (Undated letter from a Nurse Unit Manager, Ms L's employer) and Hearing Bundle, Document A4 (report dated 26 September 2024 provided by Cronulla Nursing Services, at page 12)

[36] Hearing Bundle, Document A12, page 59 (Letter from Ms L's psychiatrist, dated 5 November 2024).

[37] Hearing Bundle, Document A17, Report of Dr Tong, dated 28 November 2024, page 71.

[38] Hearing Bundle, Document A3, Paediatrician's report, pages 8-9.

[39] The owner/manager of that business, Ms McKirdy, also gave evidence at the review hearing.

[40] Hearing Bundle, Document A4, pages 10-14.

[41] Hearing Bundle, Document A20, pages 75-78.

[42] Hearing Bundle, Documents A14, A19, A22, A27, A28, A29 and A30.

[43] Hearing Bundle, Document A6, Occupational Therapy Functional Capacity Assessment, pages 24-33 (report authored by Ms Ellyn Featherstone).

[44] Exhibit 5, LVQH Occupational Therapy Additional Assessment Information, 13 March 2025 (report authored by Ms Jacky Pelle and Ms Ellyn Featherstone).

[45] A report from the Occupational Therapy service that was previously working with LVQH was contained in the T-Documents (Exhibit 1, Document T3, pages 18-19, Report of Hopalong Occupational Therapy for Children, dated 22 November 2023).

[46] Hearing Bundle, Document A6, page 24.

[50] Exhibit 4, NDIS plan dated 13 December 2024.

[51] T-Documents, Document T21, NDIS Plan 20 April 2022 - 20 April 2023, pages 132-143.

[52] T-Documents, Document T22, NDIS Plan 21 April 20223 - 20 April 2024, pages 144- 157.

[53] T-Documents, Document T23, NDIS Plan 20 April 2024 - 20 April 2025, pages 158-177.

[54] This plan contained the following explanation for 'stated supports': Where a support is listed as 'stated' in my plan, I must buy this support as described in my plan, I cannot swap 'stated 'supports for any other supports.

[55] Exhibit 4, NDIS Plan 13 December 2024 - 12 June 2025.

[57] Hearing Bundle, Document A7, Carer Impact Statement of Ms L, pages 37-38.

[60] Hearing Bundle, Document A6, Report of Ms Featherstone, pages 26 and 29.

[64] Hearing Bundle, Document R2, Response to Targeted Questions of Ms Featherstone, dated November 2024, pages 7-9.

[65] Ms Featherstone provided a table of activities that a support worker would assist LVQH with; see Hearing Bundle, Document R2, page 7.

[66] T-Documents, Document T20, Comprehensive Behaviour Support Plan, dated 22 May 2024, pages 86-131.

[67] T-Documents, Document T14, My Support Plan (prepared by Ms Ellen Small), dated 29 April 2024, pages 57-66. It is noted that a previous support plan prepared by another practitioner was also before the Tribunal - T-Documents, Document T5, Support Plan (prepared by Ishi Dixit), dated 6 December 2023, pages 23-32.

[68] T-Documents, Document T18, Behaviour Support Plan Review Report (Ms Small), dated 10 May 2024, pages 78-84.

[69] Hearing Bundle, Document A5, NDIS Plan Review Report (Ms Ellen Small), dated 27 September 2024, pages 15-23.

[71] T-Documents, Document T18, BePlan Review Report, dated 10 May 2024, page 82.

[72]Hearing Bundle, Document A5, NDIS Plan Review Report, dated 27 September 2024, pages 15-23.

[74] Hearing Bundle, Document A4, Nursing Assessment report, Cronulla Nursing Services, dated 26 September 2024, pages 10-14, and T-Documents, Document T13, Report of Ms McKirdy (Director) and Mr Brown (Clinical Nurse Consultant), Cronulla Nursing Services, dated 26 April 2024, pages 52-56

[75] Hearing Bundle, Document A4, Nursing Assessment report, page 14.

[76] Evidence of Ms McKirdy, 17 March 2025.

[77] Exhibit 5, Doctor McDowell's report, at page 24.

[78] Ibid, see Appendix 1 at pages 26-27 for the list of documents provided.

[81] Evidence of Dr McDowell and Counsel for the Agency's closing submissions, 18 March 2025.

[83] T-documents, Document T2, Internal Review Decision, 25 July 2024, pages 7-8.

[84] Hearing Bundle, Document A5, Behaviour Support Plan Review Report, 27 September 2024, page 19.

[88] T-documents, Document T20, Comprehensive Behaviour Support Plan, Ellen Small, 22 May 2024.

[89] Closing submissions of Counsel for the Agency, 18 March 2025.

[90] See, for example, Hearing Bundle, Document A7, Ms L's Carer Impact Statement, pages 37-39.

[91] Hearing Bundle, Document A21, Applicant's submission, dated 22 December 2024, page 82.

[92] Evidence of Ms McKirdy, 17 March 2025.

[93] Hearing Bundle, Document A4, Clinical Nursing Report, Cronulla Nursing Services, pages 10-14.

[94] Hearing Bundle, Document A6, at page 32.

[95] Hearing Bundle, Document R1, Targeted questions to Applicant's treating practitioners, dated 23 October 2024, pages 1-5

[96] Hearing Bundle, Document R2, Response to Targeted Questions of Ms Featherstone, Occupational Therapist, dated November 2024, pages 6-12.

[97] Hearing Bundle, Document A6, page 31.

[98] Exhibit 5, Report of Doctor McDowell, at pages 12-13.

[102] Hearing Bundle, Document A20, Letter from Dr Tannous, 17 December 2024, at page 78.

[103] Hearing Bundle, Document A15, Letter from Melissa Sydes, Capable Kids, dated 21 November 2024, page 67.

[104] In its SFIC the Agency noted the conflicting evidence about LVQH's behaviour at school and made submissions about the weight to be attached to Ms Featherstone's report and the commentary therein regarding LVQH's behaviours and their impact upon the availability of before and after school care for LVQH. The Tribunal notes, in this context, Ms L's evidence at the hearing (17 March 2025) that LVQH was attending after school care for one day per week until around April/May 2024, and ceased at that time (save for attendances driven by emergent work-related circumstances for Ms L).

[105] Hearing Bundle, Agency's SFIC, [46]-[51].

[107] Which are also reflected in the Agency's applicable Guideline - Reasonable and Necessary Supports, which can be viewed at Reasonable and necessary supports | NDIS

[108] National Disability Insurance Scheme (Supports for Participants) Rules 2013, Rule 3.4(a).

[109] See section 5(f) of the NDIS Act.

[111] T-Documents, Document T2, Internal Review decision dated 25 July 2024, page 6.

[112] Hearing Bundle, Document A7, Carer Impact Statement of Ms L dated 27 September 2024, at pages 36-37.

[113] Hearing Bundle, Document A21, Letter from Ms A to the Agency dated 22 December 2024, at page 83.

[114] Hearing Bundle, Document A26, Ms L's response to the Agency's Updated Statement of Issues (undated), at page 102.

[115] Hearing Bundle, Document A8, NDIS Exercise Physiology Report, Chronic Care Allied Health, dated 1 October 2024, pages 40-52.

[118] Hearing Bundle, Document A11, Supporting Letter of Recommendation, Chronic Care Allied Health, dated 29 October 2024, pages 55-58.

[119] Hearing Bundle, Document R3, Agency's SFIC, [52]-[59], and oral submissions of the Agency's counsel.

[120] Hearing Bundle, Document R3, Agency's SFIC, [53]

[122] T-Documents, Document T20, Comprehensive Behaviour Support Plan, dated 22 May 2024.

[123] Hearing Bundle, Document A5, Behaviour Support Plan Review Report, 27 September 2024, pages 15-23, at page 22.

[124] In Appendix 1 of his report dated 28 February 2025 (Exhibit 3), Dr McDowell listed the materials provided to him by the Agency to inform his assessment; pages 26-27.

[125] This would appear to be a reference to the NDIS access criteria.

[126] Evidence of Doctor McDowell, 18 March 2025, and Exhibit 3, page 20.

[127] Item 18 of the Schedule 1 Table.

[128] Hearing Bundle, Document A4, Clinical Nursing Assessment report, Cronulla Nursing Services, at pages 10-11. See also the Vineland Scale assessment commentary in Hearing Bundle, Document A6, Occupational Therapy Assessment, at page 26.

[129] Hearing Bundle, Document A6, Occupational Therapy Report, page 29.