TMCP by his nominee TMCP(N) and Chief Executive Officer, National Disability... [2026] ARTA 446 | Case summary

ActTMCP by his nominee TMCP(N) and Chief Executive Officer, National Disability... [2026] ARTA 446 | Case summary | Zoe

[3]

The Act sets down the law that underpins the Scheme.
The objects of the Act include supporting the independence and social and economic participation of people with disability, to provide them with reasonable and necessary supports and to facilitate the development of a nationally consistent approach to the access, planning and funding of supports. Importantly, the Act aims to enable people with disability to exercise choice and control in the pursuit of their goals and in the planning and delivery of high quality and innovative supports in addition to protecting and preventing people living with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the Scheme.[10] In giving effect to the objects of Act, regard must be had to certain factors, including the need to ensure the financial sustainability of the Scheme, the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the Scheme.[11]
Individuals who are granted access to the scheme are referred to as 'participants'.[12] The scheme is designed to provide individual plans to participants which fund certain specified supports.
Section 33 of the Act identifies the matters that must be included with a participant's plan. Subsection 33(2) requires that a plan include a statement of participant supports, which are prepared with the participant and approved by the CEO. Paragraphs 33(2)(a) to (e) of the Act specifies that a statement of participant supports must include general, reasonable and necessary supports in addition to the date by which the Agency must reassess the plan, as well as information regarding management of other plan aspects.
Section 33(5) of the Act directs that when deciding whether to approve a statement of participant supports the CEO (and this Tribunal upon review) must have regard to the participant's statement of goals and aspirations, relevant assessments, the principle that a participant should manage their plan to the extent that they wish, the operation and effectiveness of previous plans and compliance with spending in addition to being satisfied the supports are reasonable and necessary and the NDIS rules are applied.[13]
On 3 October 2024 the National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024 (amending Act) came into force. Numerous provisions in the Act were amended, including, significant amendments to section 34 regarding reasonable and necessary supports.
The amending Act introduced paragraph 34(1)(aa) which provides that the support must be necessary to address the participant's needs arising from the impairment/s to which they met the disability requirements under section 24 of the Act. Further, it introduced the concept and definition of what is an NDIS support and what is not an NDIS support[14] and amended paragraph 34(1)(f) of the Act, requiring the decision-maker to be satisfied, when considering whether a support is reasonable and necessary, to be satisfied that the support is an 'NDIS support'.
Section 34(1) of the Act now provides that when considering what 'reasonable and necessary' supports are to be funded, that the decision maker must be satisfied that each limb outlined in paragraphs 34(1)(aa) to (f) are established:

[16]

Value for money > > 3.1 In deciding whether the support represents value for money in that the costs of the > > support are reasonable, relative to both the benefits achieved and the cost of alternative > > support, the CEO is to consider the following matters: > > (a) whether there are comparable supports which would achieve the same outcome at a substantially lower cost; > > (b) whether there is evidence that the support will substantially improve the life stage > > outcomes for, and be of long-term benefit to, the participant; > > (c) whether funding or provision of the support is likely to reduce the cost of the > > funding of supports for the participant in the long term (for example, some early > > intervention supports may be value for money given their potential to avoid or > > delay reliance on more costly supports); > > (d) for supports that involve the provision of equipment or modifications: > > (i) the comparative cost of purchasing or leasing the equipment or > > modifications; and > > (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 circumstances. That > > evidence may include: > > (a) published and refereed literature and any consensus of expert opinion; > > (b) the lived experience of the participant or their carers; or > > (c) anything the Agency has learnt through delivery of the NDIS. > > 3.3 In deciding whether the support will be, or is likely to be, effective and beneficial for a > > participant, having regard to current good practice, the CEO is to take into account, and if > > necessary seek, expert opinion. > > Reasonable family, carer and other support > > 3.4 In deciding whether funding or provision of the support takes account of what it is > > reasonable to expect families, carers, informal networks and the community to provide, > > the CEO is to consider the following matters: > > (a) for a participant who is a child: > > (i) that it is normal for parents to provide substantial care and support for > > children; and > > (ii) whether, because of the child's disability, the child's care needs are > > substantially greater than those of other children of a similar age; and > > (iii) the extent of any risks to the wellbeing of the participant's family members or carer or carers; and > > (iv) whether the funding or provision of the support for a family would improve the child's capacity or future capacity, or would reduce any risk to the child's wellbeing;

[24]

On 17 January 2023 Ms Sharn Kelly, occupational therapist, Just Right Therapy Services, undertook an initial assessment of the Applicant.[17] Following the assessment an internal referral was made to Just Right Therapy Services for speech and behavioural therapy services. At the time of the assessment the Applicant's only support was that provided by his general practitioner. It was noted that the Applicant's diagnoses were autism, obsessive-compulsive disorder (OCD), global developmental delay and attention-deficit hyperactivity disorder (ADHD) and that he was not taking any medications, though Risperidone was previously trialled. Further, Ms Kelly recorded that the Applicant was at risk of absconding and required 1:1 supervision to ensure he does not. It was recorded that he damaged property when overwhelmed (including televisions and iPads) and that he enjoys playing with light switches and running water; apparently this has led to removing taps from bathrooms and removing plumbing from walls. A service agreement was entered into with the mother on 9 March 2023, with the provision of one hourly occupational therapy sessions and speech therapy sessions for 48 weeks per annum, the former being in-person (and so including travel costs) and speech therapy was to be delivered via telehealth.
In a progress report dated 13 April 2023 Ms Kelly reported that Just Right Therapy Services referred the Applicant to Bounce Therapy Services which, it appears, she also works for.[18] At the time of the report the formal supports provided to the Applicant and his family (in addition to the family's general practitioner) were early childhood educators (who provided three morning shifts of four or five hours duration and two afternoon shifts of three hours per week, noting that the previously received daily supports were "more effective"), a mental health social worker, a speech therapist (though only an initial assessment had been booked) and psychology (again, only an appointment had been booked). The Applicant's additional behavioural concerns were listed as opening and closing doors, undoing locks and trying to drain the water tank at the home. Ms Kelly noted that she had observed the Applicant in the school environment, where he was observed to leave the classroom and attempt to climb the boundary fence. It was noted that the Applicant changed classrooms and had greater access to 1:1 support. He showed curiosity in how things work, including light switches, power points and electrical sharpeners. A trial of a Houdini harness and Carrot car seat was completed and deemed suitable. Ms Kelly opined that the Applicant required 1:1 or 2:1 support throughout his day, noting he is at risk of absconding and has interests in water, electrical outlets, plumbing and locks. She recommended that he be provided support worker assistance in the morning and evening.
In a progress report dated 18 December 2023[19] and amended on 24 January 2024 Ms Kelly reported that the Applicant has received ongoing weekly occupational therapy in the home from Bounce Therapy Services since March 2023.[20] She reported that the Applicant requires full support in dressing, though can undress independently. She is of the view that the Applicant requires 1:1 support generally and 2:1 support when dysregulated, such as when he gets ready for school or when hearing loud noises. She observed that he responds well to deep touch but does not have the necessary supports to engage in these activities. Further, the Applicant has mixed success with toileting and will require assistance after a bowel movement, a decline in function as in the December 2023 report she stated that he was independent in toileting. She reports that the Applicant requires 2:1 support when showering or bathing due to his interest in water and damage to plumbing (e.g. pulling taps out of the wall) and also when accessing the community due to his risk of absconding and unbuckling his Houdini harness when in the car. She went on to state that the Applicant wakes several times during the night and will try to abscond from the home. Bolting the front and back door has proved unsuccessful due to the Applicant being able to undo the locks. It was reported that a recent NAPA intervention was "successful" however the parents were unable to follow through and continue with the recommended intervention due to the "complex needs and dynamics of the family". Even with the provision of 2:1 support the mother has limited capacity to attend to the Applicant due to his younger siblings' needs, who also require 1:1 support. It was also recommended that cleaning and gardening services are provided to the family. Ms Kelly also recommended increasing occupational therapy to three sessions per week (with 90 minutes travel per session, 30 hours per annum in report writing and meeting with parents), speech therapy twice weekly, an AAC device, behavioural and psychological therapy weekly as well as private swimming lessons and NAPA biannually.
On 16 May 2024 Ms Kelly provided a functional capacity assessment report.[21] She noted that the Applicant's younger siblings sleep with the parents each night and one will stop the mother from interacting with the Applicant due to her "extreme attachment". It was also noted that the Applicant also sleeps with a parent each night. Vineland 3 assessments completed in March 2023 and May 2024 showed no changes in his functional capacity, which remains in the low range with regression noted in some domains. The table of support needs remained largely unchanged from that outlined in the previous report. Ms Kelly was of the opinion that the level of support required for the Applicant exceeds the expected responsibility of a parent and that given the Applicant's siblings needs, as well as looking after the farm property, the parents do not have capacity to attend to the Applicant. She opined that the Applicant made:

[26]

Ms Kelly went on to state that skill development has been limited due to the time spent on redirecting and assisting the Applicant to regulate. She is of the view that progress will only occur if the Applicant is provided with 2:1 support during the day and 1:1 during the night as well as cleaning services and yard maintenance. It was noted that a referral was made to a behavioural support practitioner, but the Applicant was waiting for his first appointment.
Ms Kelly provided a further letter of support dated 21 March 2025, stating that the Applicant continues to require 2:1 support and home modifications, including fencing due to "credible and immediate risk of fatality or serious harm".
The Tribunal had the benefit of Ms Kelly's oral evidence. She has a Masters in Occupational Therapy, with accreditation through AHPRHA. She has worked with the Applicant since January 2023. She reported that she has weekly sessions with the Applicant either in the home, school, clinic or community. As to the community sessions, she explained that there were three community outings in 2024. Based on her observations in 2024 she recommends a 2:1 ratio of support when undertaking community outings.
Ms Kelly reported that the Applicant is provided with the support of a teacher and teacher's aide in his classroom, which he shares with another student. On some occasions two other children join the class. She reported that the bathroom to the classroom is locked at all times and the light switches are taped down to minimise the Applicant attempting to enter the bathroom or play with electricity. Other current behaviours of concern are the Applicant touching other students bottoms, attempting to put his hand down their pants or "mouthing" them (placing his mouth on them) or biting. When the Applicant leaves the fenced area at the school he is accompanied by two teachers at all times.
In respect to NAPA Ms Kelly noted that the Applicant attends with his mother, a support worker and there is also a therapist present. She reports that when he returns from intensives, she notes an increase in his functional capacity and that he has more functional words. Further, he was more engaged in therapeutic activities and able to sit and attend to joint activities. She stated that the mother bought many of the therapeutic tools used at NAPA such as vibration boards, a treadmill and the like but this "wasn't able to be sustained just due to the home environment and not have access to the support to help [the Applicant] engage in those activities." When invited to state her opinion of why NAPA was such a successful intervention and the care ratio should be replicated, Ms Kelly stated:

[30]

At hearing Ms Kelly confirmed, further to her report dated 13 April 2023,[23] that when providing therapies to the Applicant his younger siblings attempt to intervene by entering his bedroom or seeking her attention or connection, which causes attention to be drawn away from the Applicant, who then can become dysregulated and attempts to leave the home. Her observations in the home are that the younger siblings scream, kick and hit each other, pull each other's hair, cry and have "meltdowns" when one of their parents' attention is not directed at them, as well as climbing on shelves to try and get food. She stated that this then takes away from the ability of the parents to support the Applicant. She stated that when the younger siblings are screaming, she has observed the Applicant putting his fingers or hands over his ears and trying to "run away". She recalled an incident that the father had reported where he had taken the Applicant and at least one of the younger siblings for a walk, the purpose of which was to assist the Applicant to become regulated. However, during the walk a younger sibling started to cry and insist that she not go any further. The father then became distracted and so the Applicant ran away and was found at a creek on the property. She is of the view that 1:1 support overnight, providing a parent is co-sleeping with the Applicant, is adequate to ensure the Applicant's safety.
In respect to the fencing support Ms Kelly confirmed her recommendation for its installation. She advised that the current fencing at the home only surrounds the home and back garden but does not include the disability accommodation and so the new fencing will also surround this structure. She explained that the Applicant feels comforted when he is contained. She gave an example of a year or two previously whereby the Applicant held his wrists together while holding sticky tape, intimating that he "wasn't trusting what his hands were doing". She gave an example of therapy successfully taking place when a mattress has been placed against his bedroom door and it was only when a sibling attempted to ender the room that he tried to leave the session. Having said that, she stated that on other occasions in the home she has seen him remove doors and move things out of the way to attempt to leave the home or get to his interests such as electrical wiring. She is firmly of the view that with provision of 2:1 support the parents could implement strategies to address his behaviours of concern. Further, support workers would also feel safe and also be able to implement strategies. She sees the first priority is for the Applicant to feel safe, whereby she anticipates a reduction in his absconding. In respect of his communication, she stated that he has been prescribed an alternative assistive communication technology device (AAC), and is working with a speech therapist, however he is not using this consistently. She understands that the plan is for the speech therapist to continue to implement the AAC at her sessions in the school environment before it can be translated into the home. She is of the view that it would only be successful in the home if there were 2:1 support provided to the Applicant, as he requires that level of attention to engage and develop his skills.
Ms Kelly stated that she has only provided training with support workers "on the job"; that is, when she is in the home or in the community with the support workers, where she will discuss strategies or interventions. Otherwise, she provides documentation to the mother, who, she understands, will share it with support workers. In response to questioning by the Respondent she confirmed that she has not provided formal training to the support workers, primarily as she prioritises her direct sessions with the Applicant.
In response to questioning from the Tribunal as to the emotional consequences of the Applicant receiving 2:1 support from support workers and not his parents, Ms Kelly stated that he would still receive care and attention from the parents but it would be the responsibility of the support workers to redirect him from behaviours of concern. The Tribunal also asked Ms Kelly to explain why bathroom doors were not locked (other than at bathtime). She explained that this was trialled, but the Applicant would engage in head banging or attempting to pick at the lock and so it was decided that the risk of locking the doors was greater to him than it was in allowing him to access the bathroom and "trying to rip off tap wear". She stated that the locks on the doors were twist locks. She believes that more sophisticated locking systems have been explored but could not be certain. She stated that bolts on top of the doors were tried on the front and back doors but because the Applicant dragged a chair over to unlock it, these are no longer used.
The Respondent sought expert review by Mr Michael Malcomess, occupational therapist, where the assessment took place in the Applicant's home.[24] Mr Malcomess noted that both the mother and father conceptualised the Applicant's behaviours of concern as related to his autism and not his ADHD. Mr Malcomess stated that the Applicant's coping strategies are being severely constrained by his intellectual impairment. He noted that hyperactivity was present in the form of continual motion throughout the assessment and that he would flee when experiencing anxiety. Impulsivity was also noted during periods of anxiety and stress. He noted that the Applicant's ADHD symptoms were:

[33]

Mr Malcomess recommended various changes to the physical environment of the home, including security cameras, durable fixtures, perspex sheeting to light fixtures, security cameras and ceiling fans. However, he was of the view that such modifications would be premature without addressing the Applicant's sensory stimuli seeking. Further, he opined that the modifications may be disruptive to everyday routines and risk perverse outcomes, such as increasing the frequency of the Applicant's destructive sensory seeking behaviours. However, he distinguished the installation of diplomat fencing, stating that without this there was a very real and immediate risk of fatality. He recommended training for the parents and support workers in redirecting behaviours. He was pessimistic about the parents' capacity given they exhibited behaviours that "suggest extreme exhaustion and despair". He also noted that the Applicant's two younger siblings "exhibit a startling array of unaddressed behaviours of concern based on their observed behaviour during the OT assessment...".
The Tribunal received oral evidence from Mr Malcomess.[25] After confirming his occupation and qualifications for the record, Mr Malcomess confirmed the contents of his report. He described the family home as appearing to only be partially built with holes in walls. The bathroom was heavily affected with damage; fixtures were removed from the wall or water fed into a wall cavity. He also observed "rubbish on the roof". He noted that infinity mirrors had been set up in the home for the Applicant's benefit, which indicated to him repetitive stimulatory seeking behaviour.
In respect to the Applicant's ADHD, the main things that stood out for him was the Applicant's constant motion, which he believes is employed to allow the Applicant a sense of retaining control. He also noted displays of warmth by the Applicant, which are not generally present with a person who only has autism; instead, this emotional intelligence is often present in ADHD. He understands from his review of peer reviewed journals that developing terminology refers to AuDhd (autism and ADHD combined). He is of the view that it would be a disserve to the Applicant if only his autism was treated and not his ADHD. He described the Applicant as very physically agile and so held no concerns about his physical health. However, in Mr Malcomess's view, the Applicant's constant motion would significantly impact on the Applicant's capacity to learn and he remarked on the Applicant's reduced executive functioning.
Mr Malcomess was questioned about his recommendation to provide training to support workers. He explained that the Applicant's constant movement is about "maintaining control" and it is "devastating" for the Applicant to lose control. In his view, support workers would need to spend a lot of 1:1 time with the Applicant, shepherding him away from dangerous situations and find ways to work on more functional activities, such as doing chores around the home. He believes that this would be more manageable if the Applicant's ADHD was more appropriately managed. With this 1:1 time with a support worker "not too smothering of his independence" medications could be "a game changer" in that the Applicant would gain functioning and should be able to initiate and follow through with tasks and complete other learning. He was of the view that the relationship with a support worker would take time to develop and any changes would take months and not weeks.
When asked about the suitability of provision of 2:1 support, he remarked that he was not convinced that this would be appropriate. He commented that the Applicant would be safer with 2:1, but it is dependent on the support worker's aptitude or physical abilities. With a child such as the Applicant who can move so quickly, he could see the benefit of 2:1. However, his view is that with 1:1 care, with the sole focus on the Applicant, should be sufficient, but in reality "it isn't that simple" given the ADHD component of the Applicant's presentation. He reiterated that if the Applicant's ADHD was treated, there should be an improvement in his ability to learn. He conceded that a trial of ADHD medication may not result in significant changes to the Applicant's behaviours of concern.
In respect of the internal home modifications Mr Malcomess confirmed that he did not recommend any internal home modifications until such time as viable treatment options for the Applicant's ADHD were explored. He was concerned that the repairs in the home would be "attracting attention" from the Applicant, who would see it as "more of a challenge to dismantle and pull apart and rebuild." He understands that this is the reason why the parents have not made repairs to date "its just easier that way because it doesn't get pulled back out". He stated that these modifications would not assist the Applicant in reaching his goals, instead it would simply be "environmental fortifications that protect assets", which is not looking at how to improve the Applicant's functional development.
Mr Malcomess was questioned by the Applicant's representative regarding his observation of the parents' sense of futility. He stated that the parents do not know what else to do as there "are no easy answers". He recalled the mother stating that how heightened she and all family members are at all times, being in a perpetual cycle of fight or flight.

[34]

On 1 February 2023 Mr Hans Schmidt-Harms, child, youth and family worker from Far South Coast Family Support Service Inc, wrote in support of additional NDIS funding for the Applicant.[26] On 21 February 2023 Mr Schmidt-Harms provided a further letter of support for additional childcare subsidy for the in-home day care provided to the Applicant and his younger siblings as they were at "imminent risk of unintentional neglect and harm."[27] He explained that due to the Applicant's risk of absconding from day care and the 30km drive to such a facility, the child is unable to attend day care. Apparently, the Applicant's treating general practitioner recommended that the Applicant not attend day-care due to the mother's chronic medical conditions.
On 8 February 2023 Ms Theresa Graveson, in-home care placement manager, ALHCA, stated that the service has provided in-home care to the family since March 2021 in the form of an early childhood qualified staff member as a nanny/educator, "trying" to provide care from Monday to Friday from 8 AM to 6 PM.[28] Care is provided for all three children of the home as the mother suffers from mental health conditions and a physical health condition. It was noted that under the current funding arrangement only one nanny/educator could be provided to the family and so a second could not be provided to care for the Applicant who "needs one on one care". It was reported that the Applicant seeks sensory input by destroying things in the home and playing with plumbing and so flooding the family home. He will also abscond at any opportunity. It was reported that due to various factors the service could only provide three days of care to the family and it was felt that the Applicant required individual care, which would also prevent educator burn out. Ms Graveson advised that the service was seeking funding for a second carer to be present in the home.
Ms Kellie Bateman, child, youth and family worker, Sapphire Neighbourhood Services (formerly Far South Coast Family Support Service) provided a letter of support dated 16 May 2023 addressed to the NDIS. She recommended an increase in the Applicant's current level of funding, stating that a recent reduction has negatively impacted on the family.[29]
Ms Colleen Weir, family and relationships counsellor, Catholic Care stated in a letter dated 18 May 2023 that she provided therapy to the mother from September 2021 to February 2022 and then for a further three sessions in March 2023. Ms Weir supported the mother's request for additional childcare, behavioural supports for the children and respite for the mother. She was of the view that the family "hold risk" because the Applicant requires 24/7 supervision due to his "aggressive, absconding and risk taking behaviours". The mother reports travelling to services "impedes her health" and "triggers her trauma symptoms" and also finds it stressful to be home alone with the children without support given her own mental health difficulties. Ms Weir went to recommend additional supports in the home for the family as it will assist the mother managing her health conditions and the family's overall functioning.
There is in evidence two statements from Ms Leanne Munro, childcare worker, In-Home Care program; one is dated 29 May 2023 and the second is undated. [30] In the first she reported providing weekday care to the Applicant's two younger siblings. She has also provided 1:1 support worker support assistance directly to the Applicant on weekends and attended the NAPA training programs in 2023 and 2024. In the first statement she declared that during the three-month period she has worked with the family she has observed the Applicant requires 1:1 support to ensure his safety and that of his sisters. She also reported that he destroys objects around the home and in the yard where he tries to remove taps and throw them on the roof; as a result there is only one working tap in the home. However, when she has provided 1:1 care to the Applicant on weekends she remarked that the Applicant's communication, eye contact, body movement, eating, playing and compliance with directions markedly improves, allowing her to take the Applicant on outings such as walks, picnics and swimming. In the second statement she stated that she now operates as a sole trader and provides support each morning to assist the children to prepare for school and transports them whilst providing 1:1 supervision of the Applicant. She also provides support after school, collecting the children from school, bringing them to their afternoon activities and assisting with homework, play, dinner and bathtime. She noted that when the Applicant has two adults with him he "thrives, grows, communicates, laughs and plays freely and safely".
Ms Rikai Westwood, early childhood educator, provided a statement addressed to the mother on 14 October 2024. She stated she had previously cared for the Applicant when he was at preschool. She is of the view that the Applicant requires 2:1 support 24/7. She described also caring for the Applicant and his younger siblings and, when he absconds, having to call the parents for assistance.
There are in evidence handwritten notes apparently completed by support workers Mses Westwood and Munro and the mother during the period 29 January to 31 May 2024.[31]
Ms Cheryl Robinson of Cheryl's Personal Support Services provides domestic assistance, personal care, community transport and other assistance to the family.[32] In an undated letter of support Ms Robinson stated that she has been working with the Applicant and his family to provide community access, assistance to attend therapy and "anything else needed". She stated that the Applicant's behaviour at school is "becoming an issue" and requires constant supervision at home due to his destructive behaviours. Ms Robinson provided that the Applicant would benefit from occupational therapy, speech therapy, behavioural therapy, play therapy, sensory therapy, psychology and social groups as well as 2:1 support at all times, feeding support as well as swimming lessons, equine therapy and weekly gymnastics sessions in addition to travel time. She has observed the Applicant ride his own pony with positive behavioural results. She has observed occasions where the Applicant has absconded.

[35]

There is in evidence a carer impact statement dated 26 September 2024 completed by Ms Crystal Luobikis, support worker for the Applicant since February 2024. She stated that due to the stress and demand of the role she has recently decreased her availability to undertake work with the Applicant. She stated that the Applicant requires 2:1 care at all times. She also noted that the Applicant's siblings also require 1:1 care. She stated that the parents "live on a farm where they run a zoo. This more or less is a 24/7 job they have to attend to keep their business running". At hearing the mother stated that Ms Luobikis wished to clarify her statement that both the younger siblings also require 1:1 care, and that it is extremely difficult to care for the youngest child if the other siblings are present, which Dr Pincus interpreted as intimating that the provision of 2:1 support would also assist in caring for the younger children. This was not read onto the record.
A supporting statement from Ms Ebony Craigie, support worker, is also in evidence (undated).[33] She reports that she provides the Applicant care before and after school and it is her view that the Applicant requires 1:1 and 2:1 support worker assistance at all times. She gave an example of a recent shopping trip where the Applicant ran around the store and attempted to run down a fire escape. She gave a second example whereby the Applicant ran away towards the destination and then attempted to damage community property and had "meltdowns" but this was "extremely manageable". She noted that working with the family is "extremely intense" due, in part, to the Applicant's siblings' behaviour which are "overwhelming" for the Applicant and staff alike. She reported that when present to support the Applicant there are times when she must divert her attention to his siblings. She stated that when the Applicant is receipt of 1:1 and 2:1 support she observes "significant improvement" in his behaviour leading to a "more smooth, safe and calm environment".

[43]

Dr Kathryn Leccese, paediatrician, authored a referral dated 18 May 2023. She reported that the Applicant has been diagnosed with autism spectrum disorder Level 3, global developmental delay and ADHD.[38] She noted that his gelastic seizures had resolved, he had a chronic nail fungus, night terrors, recurrent croup and staph infection, chronic cough, frequent micturition and past abnormal hearing screen. Dr Leccese went on to state that previous medications had included melatonin, fluoxetine, dexamphetamine, Ritalin and Intuniv but the Applicant was unable to tolerate these due to either headaches, increased OCD or other behaviour issues. She noted that recent NDIS funding cuts means he will lose services such as swimming lessons, gymnastics, equine therapy "which helped him function at a somewhat reasonable level at home" and recommended that these supports be funded again and a support worker provide supervision and transport to his community activities. Dr Leccese went on to state that the loss of supports will put the family at risk of breakdown and carer burnout and that the mother cannot cook or shop without support. Further, at school the Applicant requires 2:1 support, he has destroyed plumbing at home and "caused thousands of dollars in damage in the home". She reported that the Applicant is selectively mute, being able to speak in the past, and so requires speech therapy. Dr Leccese recommended occupational therapy at the home and school to implement strategies to ensure the Applicant's safety, provision of a Houdini harness, provision of incontinence consumables, overnight supports, respite, support worker assistance in the home, assistance with cleaning, behaviour therapy and finally participation at the neurological and physical abilitation centre (NAPA) program.
Dr Leccese completed a report for the Applicant's general practitioner following a consultation dated 2 July 2024.[39] She noted that the Applicant's IQ had not been tested but was likely to be in the moderate to severe range. The Applicant continues to receive weekly occupational therapy, but no speech therapy and has 2:1 assistance at school. She noted that following the NAPA intensives he now has five to six language phrases. She opined that the Applicant requires 2:1 support worker assistance at home and at school, as he often engages in self-harming behaviours (head-butting) to elicit attention from the family (and the mother specifically) and support workers cannot provide sufficient assistance due to the needs of the younger children. She noted that the Applicant sleep is "good" and his eating is "normal". She went on to state that the mother is willing to "retry" stimulant medication and this will be reviewed in one month.
Dr Leccese advocated for the "continuation" of 2:1 support for the Applicant in a letter dated 20 March 2025 stating that these have been essential in maintaining is safety.[40] Her report repeated information contained in the reports authored by Mses Kelly and Regan. In a letter dated 27 April 2025 Dr Leccese stated that urgent provision of 2:1 support worker assistance was necessary to meet his day-to-day needs and to provide respite care to the family. She noted that the Applicant was deemed ineligible for mental health services, though did not provide the reasoning behind this. She also supported the proposed home modifications. She stated that without the provision of these supports the Applicant is "at substantial and ongoing risk of serious harm".
On 12 June 2025 Dr Leccese emailed the mother following a discussion with the mother on the same day, advising:

[45]

The Tribunal had the benefit of Dr Leccese's oral testimony. She explained that the Applicant's main diagnosis is autism but he also has ADHD, anxiety and OCD-like behaviours. He was diagnosed with global developmental delay, which will probably result in diagnosis of a moderate intellectual disability in the future. He has a chronic nail fungus infection and dental issues. She became involved in the Applicant's care in 2022. Prior to her involvement with the family the Applicant had been prescribed with Clonidine, presumably to assist with sleep. She stated that it can be used for ADHD symptoms when a child is too young to be placed on stimulants. Her notes indicate that it was ceased due to its sedative effects, as he was reported to be very sleepy.
Dr Leccese stated that she first met the Applicant in February 2022. Ritalin was then prescribed in February 2022, however this was ceased as the mother reported that the Applicant did not sleep and lost a significant amount of weight. The exact date of ceasing the medication is unknown, but no repeat script was given. Later in 2022 he was prescribed Risperidone. She recalls that dexamphetamine was trialled and a significant increase in anxiety and OCD behaviours was reported, as well as tachycardia. Dr Leccese did not take vitals as he is difficult to assess in clinic; the suggestion of tachycardia was based on the mother reporting that his heart rate increased. After undertaking a risk/benefit analysis it was considered that it was appropriate to cease the medication. She reported that Fluoxetine was then prescribed in 2023, which targeted the Applicant's anxiety. The Applicant was not on the medication very long as it was reported to cause an exacerbation in his behaviours of concern. Vyvanse was trialled in 2024 but was ceased due to the same effects as the Fluoxetine. More recently he was then placed on Fluoxetine (again) for his rigid behaviours and anxiety and Risperidone twice daily for behaviour exacerbations that are associated with autism. Intuniv was trialled, where the mother described the Applicant as "manic" and ceased and so the Applicant remains on Fluoxetine and Risperidone.
Dr Leccese stated that in her experience ADHD medications are usually more effective if a child is not neurodiverse or does not have complex behaviours. Whilst there is a role for medications, she also stressed that she does not believe the Applicant's ADHD is driving his behaviours of concern and there is a need to support the Applicant's environment, including training his support workers. She agreed that stimulant medications could be trialled, however given the Applicant's cognitive load and that so much can stress him out she is not persuaded that focusing on his ADHD symptoms is helpful at this stage. She remarked that perhaps Vyvanse can be trialled again in a few years.
It was put to Dr Leccese the difficulty to reconcile her evidence regarding some improvements since the introduction of medications with the reports in evidence regarding his recent behaviours. Dr Leccese stated that there has been some improvement, such as it being easier to redirect the Applicant as a result of his medications. As a result, she recommends increasing his Risperidone and fluoxetine given the improvement to date. The Risperidone should tackle some of the more rigid behaviours, so there is "room to manoeuvre". As to the reporting that the Applicant has difficulties sleeping at night, she was asked whether there was any consideration of prescribing medications to assist. She stated that Risperidone could be increased at night to assist with the Applicant's sleep; she had no concerns about increasing his dosage at night. She explained that this has not been trialled because he is using Risperidone and melatonin, which was commenced in April 2025. She remarked that there is another SSRI that is more helpful with sleep but it is used as a last resort.
As to her clinical observations of the Applicant she recalled that he loves water; the only way to keep him in the room was to keep the tap on. She has not seen him in a while because it is difficult to get him to a session and even when he is present it is difficult to get his vitals. The last time she saw the Applicant was in July 2024.
At hearing Dr Leccese was questioned about her recommendations regarding support worker assistance. She stated that she was of the view that assistance in the afternoons would be appropriate to have an extra support worker given the parents' ill health and the high needs of the younger children.
Dr Pincus's recommendations were put to Dr Leccese. In respect to the recommendation to trial Ritalin she remarked that in a child like the Applicant where there was a significant increase in his anxiety and OCD symptoms, she does not think this would be "make or break with him". She is of the view that the next years are going to be difficult for the Applicant, with adolescence and his inability to communicate it is expected that he will have increased displays of aggression. However, there are no medications that will change his behaviours, as his behaviours are driven by his autism. She is open to exploring longer acting versions of the Risperidone, or aripiprazole, but stressed that there will always be fluctuations in his behaviours.
The Tribunal had the benefit of consultant paediatrician Dr David Pincus's written and oral evidence. He is a practising general paediatrician with a practice spanning 30 years, currently working as a senior paediatrician providing mentoring and reviewing clinical management of 20 general practitioners in Queensland.[41] Dr Pincus undertook a review 'on the papers' at the request of the Agency.
In his report dated 18 September 2024 Dr Pincus made the following observations about the Applicant.[42] His opinion is that the Applicant does not have global developmental delay, but rather a moderate to severe intellectual impairment. Further, the Applicant fits under the label of profound autism and has significant emotional dysregulation and his impairments relate to communication, cognition and behaviour. He is severely impaired with activities of daily living and Dr Pincus holds concerns about his parents to safely manage him. Dr Pincus opined:

[54]

Dr Pincus's evidence at hearing can be summarised as follows. He provided an overview of ADHD medications. He stated that there is no way to determine which medications are more effective for a child, instead it is established by clinical trial. In respect to Fluoxetine he stated that it can sometimes make agitation worse in children, and so he is always concerned with prescribing it for a child who is very hyperactive and impulsive. Dr Pincus expressed surprise that the Applicant has been able to tolerate 20 mg of fluoxetine given the description provided by the mother regarding the Applicant's side effects to the medication in 2022. He explained that it may have been that in 2022 the changes to behaviour observed were related to other factors rather than the medication. Later he stated that removing all anxiety from the Applicant by the use of Fluoxetine may be counter-productive, as it is important for there to be some anxiety present as the anxiety causes one to be cautious. He also stated that there are medications other than Fluoxetine to address OCD which are better, such as sertraline or clomipramine. Further, it would be useful to know which SSRI medication the parents are on and may be responding well to, as there is often a genetic component to anxiety. Dr Pincus stated that SSRIs and stimulants are not classified as chemical restraints. He stated that Risperidone can have a sedative effect; he would be concerned about prescribing a high dose as it may not take into account the child's rights. It was put to Dr Pincus that the Applicant is also currently taking Risperidone. He stated that for the majority of children this will increase a child's emotional regulation and decrease impulsivity and they will sleep better. He has also seen profound results where non-verbal children become verbal. Dr Pincus stated that he recommends stimulant medications because he understands that it is the Applicant's behaviours of concern and impulsiveness are what cause the greatest burden.
Dr Pincus stressed that when trialling medication it is important to get feedback from a number of independent sources to ascertain whether the medication is effective. In his view, given the Applicant's underlying anxiety, he would be more likely to trial Vyvanse which is longer acting. He would then review two to four weeks later, seeking a report from a teacher and several other points of independent information. He prefers this as this tends to mitigate against inherent biases. This is important, particularly in the school space as a significant change in his behaviour with the erection of the school fence has been noted as he no longer requires close supervision and now feels safe, so it would be important to get information from school as well. He also noted that this is not dissimilar to observations in the home where if the Applicant discovers that if he cannot break something he moves his attention to other activities. In any event, there are many other stressors in the household. Therefore, he would recommend paediatric review every four weeks and without any significant change within six months he would consult a child psychiatrist.
Dr Pincus was of the view that a week of trialling medication can often be sufficient. However, he cautioned that one must be careful in reaching a conclusion particularly with a child as driven as the Applicant, and whether they are occurring exactly in the time period that the medications are meant to work. He noted that as children with autism are often very sensitive to medications and so one must start with a low dose, but also it is important to push through the first two or three weeks where all the side-effects may disappear, except for reduced appetite which tends to persevere. He observed that he would be surprised if a child experienced significant tachycardia using stimulant medication, noting that there are good studies in children with congenital heart disease using Ritalin with no negative cardiac effects. He reiterated that in these first weeks of trialling medication it is important to get as many observations of the child's behaviours from as many different sources as possible. He often prescribes medication with a placebo to get more accuracy in reporting of behaviours and side effects.
Dr Pincus spoke about the enormous pressure that the family are under, caused by various factors including their rural location, a busy household, a farm, past trauma as well as the parents having physical and mental health problems as well as managing a very "driven" child such as the Applicant and with two younger children also exhibiting behaviours of concern. He described the current home environment as a feedback loop where that the Applicant triggers others, and then they trigger him back. He stated the fence at the school was able to stop the feedback loop at the school, where it is now seen that the situation is really calmed down significantly. He stated that these factors all can influence the parents' reporting of side-effects, thus the need for independent reporting as well. He agreed that when the child is participating in a NAPA intensive might be a good time to trial medication as he is "out of the chaos of the house and all the demands that that are put on the parents in the home".
Mr Robin noted that when at the NAPA Centre the Applicant is 14 times less likely to engage in behaviours of concern. In response Dr Pincus stated that there is no doubt that the Applicant has major genetic developmental concerns. However, he is unable to state how much of the Applicant's behaviours of concern are environmental or developmental. In his view the Applicant's current home environment is a contributing factor. Given the NAPA Centre data regarding less behaviours of concern, though it cannot be certain he is more concerned that there are intrinsic factors contributing to the Applicant's difficult behaviours. He commented on his experience in seeing children with difficult behaviours moving to another home environment such as with grandparents and seeing a dramatic reduction in behaviours of concern. He stressed that this does not mean that the Applicants' parents are not doing a good job, but rather it is the case that the Applicant is living in what is a "self-perpetuating situation". He stated that treating the ADHD with medication will not be a cure to all behaviours of concern, instead it could result in a 50% betterment in the family situation. However, he is of the view given the reported behaviours post the fence installation at school and post NAPA intensives, leads to a conclusion that there is "a strong environmental component to the challenges being seen with [the Applicant]...But to me it means that the environment is still the biggest issue".
In respect to Dr Leccese's interaction with the family he commented that it was not apparent that there was an opportunity to undertake anything more than bi-annual reviews or to get multi-point information and undergo an intense program to undertake a trial of medication. He also noted that he was at an advantage over Dr Leccese as he had the opportunity to have four to six hours to review all the background reports, whereas as for a treating paediatrician a summary would have to be sufficient together with talking to the parents. He remains certain that there would be a difference if the Applicant's level of impulsivity and hyperactivity could be minimised. With the introduction of 2:1 support worker assistance he is concerned about whether having more people in the home will actually help the situation or make the Applicant more dependent upon others and not be able to develop autonomy.
As to the report that the Applicant's side effects when trialling dexamphetamine worked briefly for focus, but caused manic behaviour, property damage and increased aggression, Dr Pincus stated that he has not seen these as side effects, though given the Applicant's underlying anxiety it is possible that once the stimulant medication wore off it is possible that there would be OCD behaviours. However, he would require more information, such as whether these symptoms emerged when the Applicant was "feeling unconstrained". However, he did state that there can be a rebound effect whereby the child is "good for four hours and then as it comes of the system, they seem to have an exacerbation of their usual behaviour". In such cases he would recommend titrating medication during the day, such as giving a full dose in the morning, a half dose at lunchtime to minimise the rebound or prescribe a more longer acting stimulant so there is not withdrawal at the end of the day. In his view what the mother described could have been managed by changing the dosage regime or dosage.

[60]

The mother's oral evidence can be summarised as follows. The family are in "crisis". The mother states that the Applicant's ADHD has been treated since 2023. First stimulant medication was trialled (both slow and long release) which resulted in "manic episodes" and "complete distress" and his anxiety was "difficult to watch". The trials usually lasted "about a month" and he appears to be very sensitive to medication. She believes that ADHD is not his main concern, and rather it is his autism and OCD as when he is calm, he can enjoy activities. He has a deep interest in water, not just sensory seeking. They are currently not using power in the home as he knows which fuse in the meter box can be switched on or off. The fuse box was damaged by the Applicant, resulting in the family "living in darkness for months". It is not safe to put turn on the lights, as he can reach downlights and pulls them down. He can apparently reach them by pushing over furniture. She estimates the cost of using electricity is $300 per week due to the Applicant's behaviours. When questioned how this is possible if she has been living in darkness for months, she explained that this was before they stopped using electricity. During that period the Applicant insisted on always having all electrical items on (eg lights, fans) and when he accesses water play this requires electricity to power the pump.
The Intuniv was introduced slowly with no effect. At another occasion during her oral evidence she stated that the Applicant's behaviour escalated in the last month due to the trialling of Intuniv which made him "manic" and he now takes Risperidone and Fluoxetine which has reduced his OCD behaviours, allowing him to be redirected from activities that interest him and he is less distressed. It has been a couple of months since she has noticed these improvements.
In respect to Clonidine the mother recalled that the medication was trialled for about a month, with hallucinations and seizures apparently continuing for about a year after ceasing the medication. She cannot recall specifically how long dexamphetamine was trialled, to the best of her recollection it was about a month. She described the Applicant as "completely manic" and he is "in a state of distress", "like watching someone on speed"; he was exhibiting a lot of stimming behaviour, making distressing noises and crying and that all of his behaviours went "through the roof" where he would break things like furniture (as opposed to 'accidentally' damaging property through his intense interest in the task, such as water play). When asked to explain the causal effect, she stated that it did not happen straightway but was like "an explosion" and there were no environmental factors that could explain the sudden change in his behaviour and that these behaviours stopped immediately upon ceasing the medication.
The mother stated that Risperidone makes the Applicant calmer, noting that the father does not agree. She is of the view that that the combination of Clonidine and Risperidone is the best combination for the Applicant.
As to the fencing the mother testified that the fencing would be placed around the home and shed, which has been converted into a future home for the Applicant or "carer accommodation" in the backyard. She renovated the family home and took out all fixtures and put them into the carer accommodation. When asked about the need for 12 gates, the mother reported that the number of gates have been reduced in a recent quote to nine gates to allow access to livestock, the horse enclosure and other parts of the farm, so replicating existing gates.
The mother was adamant that the Applicant requires 2:1 support at all times. Her preference is that one of the parents does not cover the overnight care needs of the Applicant. The second overnight carer may be active or inactive; it depends on whether the Applicant sleeps. She states that both she, the husband and the two younger siblings are awake when the Applicant is awake overnight. She stated that he may only sleep one hour for one week and then will have a period when he does sleep longer. Over a month this looks like a "rollercoaster" where she and the father cannot catch up on their sleep. He always wakes at or before 5 AM. Ideally the overnight shift would commence at 10 PM and cease at 6 AM. Having one overnight worker would allow the younger children to sleep as well as one parent. During the day 2:1 care is required given his needs and those of the younger siblings, though not during school hours. It must be viewed holistically; she needs to cook meals, the father needs to work on the farm and the younger children also have high support needs. The youngest child will not allow the Applicant and the other sibling to approach the mother and perceives the presence of support workers in the home as a threat to her. The middle child is constantly anxious, hypervigilant, likely being a trauma response to having the mother to run away from her to catch the Applicant when he attempts to abscond. This child receives four hours per week of support worker assistance in addition to therapies under the NDIS.
The mother's oral evidence is that the Applicant is aware that if only one person is with him he knows that he cannot be stopped from engaging in risk taking behaviours. However, when in the presence of 2 support workers he laughs, knowing that they will be able to prevent him absconding or engaging in risk taking behaviours. Currently there are no supports in place as support workers will not work without a 2:1 care ratio nor without the provision of travel time (in addition to km costs). When asked how she arrived at the travel request, she stated that the support workers will charge what is in the Price Guide. She referred the question to a support coordinator.
The mother provides horse lessons to others. She does these while the children are at school. In response to her statement that the father does not work on the farm, she stated that the father only feeds the animals, though she needs to oversee and sometimes repeat this work. The father cannot do lawn mowing or tractor work. The father does the transport of the children to and from school, dishwashing and bins. The Applicant's new behaviour is that he is fixated on body hair and likes to place his face on the father's arms. He then follows the father around the farm when he is feeding the animals.
She described mornings as "crisis aversion", kids screaming, meltdowns and the Applicant absconding from the home. A support worker is present in the morning and for three hours in the afternoon. Due to underspending, they sometimes engage two support workers in the afternoon. Support workers will refuse to work on weekends unless 2:1 support that provided. Sometimes they will get a second support worker, other times a parent will attend an outing with a support worker. The Applicant will get upset when one support worker attends, as he knows that he cannot leave the home for a bush walk (or access the community generally) without another person present. Most recently two support workers worked between 8 AM to 4 PM. If one support worker attends, it is only for seven hours on a Saturday and five hours on a Sunday. She is adamant that reduction in NDIS funding has meant that the Applicant's needs are simply not met.

[61]

In a carer statement dated 10 October 2024 the father reports that he urgently requires respite and sleep and has been unable to undergo cardiac surgery because of the lack of supports provided.[53] Further, he reported that the family home requires "robust modifications/adaptations" to ensure the Applicant's safety and to prevent further damage. In a further statement dated 23 March 2025 he reported that the Applicant continues to try and abscond from the home, up to eight times a day. At hearing the father stated that much of the evidence contained in his statement is no longer completely relevant as the "dynamics have changed" and "he [the Applicant] is worse now".
The father's oral evidence to the Tribunal can be summarised as follows. The Applicant is "fairly reliant" on him at the moment and is "quite persistent and, and (sic) needy". When asked to outline the Applicant's daily routine he explained that he wakes early and he will keep him quiet if he can and the Applicant will just sit in the bed and then he will "spring to life". He will then go with him to the kitchen and whilst the father prepares his breakfast the Applicant will get three electronic devices and watches certain ABC songs in sequence. He cannot be disturbed until he has watched the songs in the correct order. He cannot watch these in the car on the way to school because there is no reception. He then transports him and the younger children to school with a support worker in the car to make sure he does not injure his sisters or cause damage to the car.
In the afternoons he transports the children home and the Applicant will jump out of the car and attempt to remove the car's headlights. He will then run inside, remove his clothes and then runs to the bathroom and turns the taps on "a million times while it's filling up", then he will hop into the bath and play with the water. After some time he will get up from the bath and go and dress only in clothes that he chooses. He then goes outside and the father will follow him around whilst also feeding and watering the animals. He likes playing in the vegetable patch with the chickens and some puppies. Once all the chores are finished, he will go on "a pilgrimage around the place for pretty much till sunset". Whilst this changes, it usually involves "copious amounts of walking"; he later explained that there are a series of tracks that the Applicant takes circumnavigating the property. He described it as "an extra hour or two hours that I've got to spend outside wandering around aimlessly" with a support worker with him. He explained that sometimes the Applicant will have a meltdown if he cannot walk a familiar route or goes onto a road. When that occurs the father will need to place him on a farm buggy and attempt to distract him. He will then return to the home for dinner, then the father takes him on a drive for about an hour and then they will return home where the Applicant will watch some shows in bed and "if you're lucky" fall asleep.
The father described the damage the Applicant has done to property, including putting water in his fuel tank, removing power points from walls, ripping taps out of walls, pulling on chandeliers. They have placed special fittings on outside taps, but the Applicant will just bend the pipes and so snaps the metal. He has also got screwdrivers and unscrewed deadbolts on the doors. He stated that his relationship with his daughters is impacted by his need to focus on the Applicant. He stated that his youngest child is "attached to [the mother]'s hip most of the time" and becomes distressed when someone tries to take her away from the mother. When the mother was in hospital he asked family and friends to come to the home to assist him with caring for the Applicant and his younger siblings.
The father was asked about his employment. He stated that sometime in 2024 he ceased working as an abalone diver on the advice of his doctor due to his heart condition. The father stated that his caring responsibilities have had an enormous toll on him. He states that he wakes gasping at night for fear that the Applicant has absconded through the night. The quality of his sleep is poor due to his need to ensure that the Applicant does not abscond. His has atrial fibrillation which his specialist has suggested was caused by stress. He is currently in receipt of newstart allowance. He stated that he "struggled" when he does not have another adult present to assist with the Applicant. When asked if he was active on the farm he stated that he "was mobile", he feeds the animals, washes the dishes, does the bins and watches the Applicant. That is all he has capacity to do, because of his physical capacity and his own diagnosis with ADHD, which impacts on his motivation. He does not do the lawn mowing on the farm or gardening or undertaking home or farm maintenance. After school drop-offs he tries to return to the home. He stated that the school drop off is a round trip of 180 minutes. When asked to break this down, he stated that a direct trip is 30 minutes from the home to the school. The younger children go to a different school to the Applicant. This includes 20 minutes of sitting time to ensure he can get a park and stopping off to get the Applicant an ice block if he is demanding one. During the school day he usually does not have "the energy, the enthusiasm or the motivation...or the time" to attend to chores and so usually sits on his phone.
The father confirmed that he co-sleeps with the Applicant. Once the Applicant is asleep, he may go out and attend to some other farm chores and then go to bed. He states that he cannot drive alone with the Applicant as he has pulled the handbrake or tries to damage the car's dashboard. If he does not have someone to go on the drive with him, he will try to divert him to another activity such as walking. There was a cross-trainer in the home but he pulled the buttons of it. He will go on it as long as there is something that interests the Applicant on the television. Once he is no longer interested in the television, he jumps off the cross-trainer. He does not agree that the cross-trainer was initially successful.
The father stated that the provision of 2:1 support will give him a break and give the Applicant what he needs. Otherwise, he may have to surrender him. The bottom line is that the Applicant needs two people given his strength, and the support workers are scared to be alone with him which "places more of a burden on me". He is tired. He observed in respect of the request for fencing that "when you put a lock on something that's enough to settle the [Applicant's] compulsion, it's almost like the compulsion's been overridden by the physicality".

[62]

Ms Danielle Radovic, behaviour support practitioner, Live it Up!, authored an undated letter provided in response to the Principal's statement dated 25 March 2025.[54] Ms Radovic supported the installation of the diplomat fencing and other environmental modifications at the school, stating it reduces the Applicant's need for support from 2:1 or even 1:1 and so supported implementing the same strategies at home. In separate correspondence Ms Radovic stated that she worked with the Applicant in his home, community and motor vehicle during the period 16 to 21 January 2025.[55] She stated that she observed him flooding the home, cattery, fish tank and driveway. She declared that an alarm system, door and window locks and security cameras installed by the parents were destroyed or bypassed by the Applicant, proving ineffective.
Ms Kerri-Anne Regan, behaviour support practitioner, Billy Cart Behaviour, provided a 'Progress Report' based on a telephone call with the mother and occupational therapist on 19 and 24 June 2024 respectively, in addition to reviewing the reports and supporting letters in evidence before the Tribunal for the period 11 April 2023 to 31 May 2024 and a 'Home Behaviour Records' completed by the mother dated 22 and 23 May 2024.[56] Ms Regan stated that the Applicant's AAC device is "often" broken resulting in several screen replacements and that the mother reported that the Applicant has caused "hundreds of thousands of dollars worth of damage to family property". Further, the Applicant only sleeps 1-2 hours at night and cannot sleep for five days at a time. Both physical and mechanical restrictive practices are apparently in place, based on the mother's handwritten notes, requiring 3:1 support to dress the Applicant and get him into a car. This also includes physically holding the Applicant when in the community by way of the mother holding his hand and school staff holding his hand after the Applicant has run away or carrying him when he is trying to run away. It is noted that whilst the Houdini car harness was first implemented in July 2023it has not been routinely used.
A number of challenges were identified in implementing a behaviour support including the parents' mental and physical health concerns and parental burn out. The following interventions were recommended: art therapy, water therapy, two NAPA intensives per annum (in addition to the provision of short term accommodation whilst the Applicant attends), AAC technology, 39 hours per fortnight of an early childhood educator, speech therapy (conducted by therapist and therapy assistant), physical therapy (conducted by therapist and therapy assistant), support workers at a rate of 24/7 1:1 to implement the strategies provided by occupational therapist and behaviour support practitioner in additional to support coordination. A quote of $28,716.60 for annual behavioural support (including travel) was provided. Referrals to a neurologist, paediatrician and sleep specialist were also recommended.
Ms Regan provided a further report dated 19 November 2024.[57] She stated the purpose was to formally escalate her concerns as the Applicant is at "immediate and significant risk" as he does not have sufficient NDIS funding. She reported that the Applicant fled the family home on 14 March 2024 at 3:00 AM and was later found by a member of the public at 7:00 AM on a main road. She went on to state that the Applicant displays "a history of extreme physical activity during dysregulated periods, especially during medication trials, this includes walking up to 25 km at night". She stated that broken locks and doors mean that the Applicant can abscond from the home and despite the recommendation for fencing, this has not been provided. She advocated for increase in support worker ratios and funding, as well as travel expenses. She reported that school attendance has reduced to half days. Further, she reported that Dr Leccese was mistaken when she reported that ADHD medications had not been trialled and the mother is attempting to correct the record. She noted that the Applicant ran out of the school grounds some 400 m away and states that the Applicant can attempt to abscond from the home environment over 70 times per day. She noted that none of the strategies put in place have had any impact on his absconding behaviours and that only with robust home modifications and fencing the likelihood of his behaviours of concerns continuing are likely to be significantly reduced and therefore may result in a reduction of 2:1 supports.
Ms Regan also has provided a comprehensive behaviour support plan dated 12 November 2024.[58] She reported that following his most recent NAPA intensive the Applicant replaced his behaviour of throwing items with "something different". She remarked that the Applicant responded well to a trial of visuals, but does not like it when these are changed or moved. The most recent report regarding his sleeping dated 7 November 2024 revealed a more consistent pattern of sleeping 11 PM to 7 AM each night:

[64]

Later in the same report Ms Regan reported that the Applicant is currently sleeping only two to three hours per night and finding it difficult to fall and stay asleep. She also states that the mother reported on 17 September 2024 that though the Applicant's behaviours of concern improved, his OCD symptoms had increased. She also reported that the Applicant is not currently taking any medications except for treating a nail fungus. She stated that the mother ceased use of the Houdini harness from 19 June 2024, trialling travel with 2:1 supports instead, stating that unsafe behaviours in the car are only present when the Applicant travels with one adult only. Hand-holding restrictive practice whilst the Applicant is in the community is deemed to only be appropriately used by the parents and only when he is at risk of absconding onto main/busy roads. Ms Regan later stated that the harness was ceased as it has been associated with an escalation in the Applicant's behaviours of concern[59].
On the first day of hearing an email dated 21 October 2025 and incident review report apparently created the same day for the period 4 November 2024 to 20 October 2025 was tendered into evidence.[60] It indicates that increased behaviours of concern occurred when the parents were distracted or attending chores, when in unfamiliar environments or when experiencing sensory overload when accessing the community. Incidents were lower during structured daily routines, suggesting that predictability reduced the Applicant's risk of engaging in behaviours of concern and that absconding may indicate emotional or sensory overwhelm.
Ms Regan is a certified behavioural analyst with a Bachelor of Psychology and Master of Behaviour Analysis and is a registered behavioural support practitioner with the NDIS. Ms Regan's oral evidence can be summarised as follows. She has worked with the family remotely since about October 2024 (noting she was on maternity leave for about six months during this period). She states that one of the barriers to the implementation of the behaviour support plan is that all work is undertaken remotely. The Applicant is a complex child. Most of the recommendations are environmental changes. What that looks like is replacing a functional behaviour, such as access to sensory input which are regulating to him such as bushwalking. Therefore, she has recommended designated walking tracks, take apart stations for him and providing him with more predictability in his day-to-day life.
Ms Regan noted that there has been "incredible success" at NAPA, where the Applicant is able to learn new skills and develop functional behaviours. Outside of this setting, there is significant regression. In her view there has not been sufficient funding by the NDIS to support his behavioural plan. She stated that the situation is made more complex by "incredibly burnt out parents to the point where we're talking having conversations (sic) about relinquishing care".
Ms Regan stated that the fencing is imperative, as is the provision of temporary 2:1 support, fading to 1:1 in the future, robust and lockable fixtures being installed in the home and funding for support worker travel. She reported that the Applicant is attempting to abscond "every minute of every hour". She apparently reached this conclusion of evidence from the mother and the incident reports in evidence, with just a "snapshot" so creating an average. When it was put to her that the NAPA Centre is successful because it is a more stimulating environment rather than it being based on 2:1 support, Ms Regan stated that in the home there has been no provision of 2:1 support, she cannot include the mother in this because she is taking care of the other siblings. In her view it is "difficult if not impossible" to replicate the NAPA environment without 2:1 support. Ms Regan reported that when the Applicant receives 2:1 in NAPA and at school, a reduction in "behaviours of concern reduction to almost zero in those environments". In the home, she stated that when he receives 1:1 support his "behaviours are really, really significant". When asked what intensive therapeutic supports could be delivered during 2:1 support she stated "functional communication, daily living skills, those functional equipment replacement behaviours" to replicate what is happening in the NAPA centre to assist with his regulation.
In her view 1:1 is not appropriate at the moment; her opinion is based on discussion with the parents and various support workers. In her view given the risk of fatality or serious injury restrictive practices are appropriate, including lockable windows and doors.
Ms Regan stated that a water play station in the back garden was erected to allow the Applicant to engage in water play activities, but this was not successful, primarily being because of barriers of finance, lack of support workers and the parents being unable to attend to his needs. When asked what regulates the Applicant, she stated that he has high needs for, walking, running, heavy movement activities and water play. She explained that the bushwalks are not feasible because he needs a 20km bushwalk.
Ms Regan employees a Learning Management System, which can be accessed by support workers to undertake training. She will also provide direct training with the mother, providing more practical support. She "tries" to provide training to support workers, however she has not done so. The two current support workers have not been trained, apparently because one is pregnant. She does not know how long they have been on staff.
In respect to the recommendation of ADHD medications she stated:

[73]

It is without doubt that the Applicant's impairments result in substantially reduced functional capacity in activities requiring communication, social interaction, learning and self-care. He frequently and consistently exhibits behaviours of concern and is severely impaired in activities requiring executive functioning. The evidence supports a finding that the Applicant requires support worker assistance to meet his day-to-day activities.
I must next determine the reasonable and necessary ratio and hours of support worker assistance the Applicant requires.
The Applicant's parents and witnesses generally spoke with one voice: the Applicant requires 2:1 support at all times. Family support services and current and past support workers and educators working with the family state the same.
There are various reasons provided to support the contention that the Applicant can only be kept safe at a ratio of 2:1 support. As I understand it, the primary reasons are his history of absconding from the home, school and from caregivers in the community. After advocacy on the part of the Applicant's mother, the Applicant's school erected a high fence around his classrooms and a section of the playground. This is the same fencing that is sought to be erected around the family home and carer accommodation, addressed below. It is argued that given his strength and speed it is only with two other support workers present that his risk of absconding (and so the possibility of his injury or death) can be reduced.
The second reason is that the Applicant engages in behaviours that result in harm to himself, others and damage to property. Again, it is argued that only with the provision of 2:1 care can this risk be minimised.
The third reason is that the parents do not have capacity during the day to provide support, either together or individually. Whilst it is not their preference, they concede that one of them can be the second person overnight to provide supervision and care to the Applicant. Their inability to provide this support is based on the high needs of the younger two children of the household, their household and farm responsibilities as well as their poor mental and physical health.
I found the Applicant's treating occupational therapist Ms Kelly a compelling witness. She demonstrated a sound understanding of the Applicant's needs and the home environment and was able to provide practical examples of activities that could be employed to address the Applicant's sensory seeking behaviours and to assist with emotional regulation. I gave significant weight to her evidence as it was based on her own observations of the Applicant in the home, school and in the community. Whilst she remained steadfast in her views about the supports that should be provided to the Applicant, she was careful in her evidence not to make sweeping statements, was clear about her professional expertise and never strayed into the area of advocacy.
In April 2023 Ms Kelly recommended that the Applicant receive a combination of 1:1 and 2:1 support worker assistance in the mornings and evenings. By late 2023 Ms Kelly recommended that the Applicant receive 1:1 support generally, and 2:1 when dysregulated and when undertaking self-care tasks involving water or when in the community. She identified that the parents were unable to follow through with recommended interventions due to the family's "complex needs and dynamics...". By May 2024 she advocated for 2:1 care for the Applicant during the day and 1:1 care overnight, again referring to the limited ability of the parents to attend to the Applicant because of the care needs of the Applicant's younger siblings. She maintained at hearing that 2:1 24/7 support was the most appropriate support ratio for the Applicant. Nevertheless, I was concerned that she had not provided any direct or indirect training to the Applicant's support workers to assist them in appropriately managing his behaviours of concern.
In contrast, I found Ms Regan a most unsatisfactory witness. She appeared to only have a superficial understanding of the Applicant's needs and spoke in generalities about his behaviours of concern. This makes sense on some level as she has never met the Applicant or observed him in his home, school or in the community. She states that the failures of any recommended behavioural modifications are largely down to the lack of 2:1 support for the Applicant and failure to fund home modifications. She was unable to adequately explain why she had not provided each support worker working with the family appropriate training in managing the Applicant's behaviours of concern. Without such training and support being provided to support workers, I am not persuaded that the putative failure of 1:1 support is established.
Ms Regan stated that neither parent is engaged in paid work because of their caring responsibilities. This is contrary to other evidence before the Tribunal. When asked specifically to state her understanding of the support ratio the Applicant receives at school Ms Regan replied that there were two teachers and a SLSO in the classroom. This is simply not correct. She reported that once the fence was built, the absconding behaviour ceased. Again, this is not correct; the Applicant absconded on at least two other occasions when the opportunity arose. However, I do recognise that he responded well to teachers and was soon returned to the fenced playground.
Ms Regan also appeared to overstate the Applicant's difficulties. By way of example, she stated that there are occasions when the Applicant attempts to abscond from the home 70 times per day. There is no evidence before the Tribunal to support this statement. She reported that she has qualitative and quantitative data collected by the mother and support workers, the occupational therapist and school incident reports. I understand this to principally refer to the diary entries completed by the mother and support workers. Given the tenor of these diary entries and their repeated assertions that incidents would not have occurred had 2:1 support been in place, it is difficult to understand how she was persuaded that the diary entries constituted objective or reliable data.
Further, Ms Regan made statements outside the bounds of her qualifications. She has no medical qualifications but gave her opinion about the suitability of prescribing Risperidone to the Applicant on two occasions at hearing, expressing her disapproval. It was also apparent that she was not abreast of the Applicant's actual response to medications; her evidence regarding the efficacy of Fluoxetine and Risperidone is in conflict with the mother's evidence and that of the Applicant's paediatrician, who both reported positive effects. When pressed on this she cited the Applicant's weight gain as a concern, an issue not raised by the mother or paediatrician. Again, she was unable to provide any specific evidence on this point.
I was left with the firm impression that Ms Regan was not appearing as an independent allied health worker who maintained an appropriate degree of professional distance, but rather as an advocate. This is best demonstrated by her statement at hearing where she referred to herself and the family collectively:

[75]

It follows that I gave little weight to Ms Regan's reports and statements of support where they were not corroborated by other independent evidence.
I found Dr Leccese a cogent and considered witness. She gave her evidence in a forthright manner and took time to ensure it was accurate. Nevertheless, I am concerned about the lack of frequency of consultations with the family given the level of concern she held and the families reports about the Applicant's safety and wellbeing. The medical evidence before me suggests that she consulted with the family in May 2023 (via telephone) and July 2024 (in-person). It is apparent that her 20 March 2025 statement was largely based on the reports authored by Mses Kelly and Regan and mistakenly refers to the Applicant currently receiving a 2:1 ratio of support worker assistance. This misunderstanding was rectified before her April 2025 letter of support, which apparently coincided with a telephone consultation with the mother.[71] I am persuaded that Dr Pincus's description of fortnightly to monthly review following the introduction of stimulant and trials of other medications represents best practice. It is evident that this has not occurred. Further, there is no independent reporting points regarding the efficacy of the medication being trialled. It is apparent that Dr Leccese relies solely on the mother's reporting of the effect of the medications on the Applicant. I will discuss this in more detail below.
The parents were adamant that much of the family's difficulties are the result of the Applicant's behaviours of concern and the failure of the NDIS to provide 2:1, 24/7 support and home modifications. They did not state explicitly or by implication that their own mental and physical health difficulties may impact on their ability to manage and address the Applicant's behaviours of concern, rather they conceptualise the Applicant's behaviours having a deleterious effect on their mental and physical health only. They are positive that 2:1 support at all times is appropriate. On this point, it was difficult to get a sense of the calls on the parents' time outside their care of the Applicant and undertaking basic household and farm chores. The mother referred to a lawnmowing business in a carer statement and there is also a reference in the hearing papers that the farm is a 'zoo'. It emerged that the parents had the physical and psychological capacity to renovate the family home and are in the process of renovating a shed on the property to provide carer accommodation, apparently with the aim of making this available to families whose children live with disabilities. Mr Malcomess refers to this as a "animal park for children with disabilities". The mother stated that it will later be used to provide accommodation for the Applicant when he is an adult. That may well be the case. The mother also provides equine therapy, up to three classes per week, for her "mental health". Similarly, I did not get a clear sense of the Applicant's actual sleep pattern, though I do accept that there are nights when he sleeps for only a short period.
It is clear from the evidence of Mses Kelly and Regan and others that at least part of the provision of support worker assistance is to enable the parents to address the younger children's needs. In fact, if the younger children do in fact require 1:1 support worker assistance, then those supports are more appropriately funded under their NDIS plans and not the Applicant's plan. It follows that paragraph 34(1)(aa) of the Act would not be met in respect to any support worker assistance that is to be provided to meet the needs of the Applicant's younger siblings.
The submissions of the Respondent, not disputed by the Applicant, is that access to the Scheme was granted on the basis of impairments arising from the Applicant's autism and not his ADHD. Therefore, any supports made necessary by impairments arising the Applicant's ADHD would not meet the requirements of paragraph 34(1)(aa) of the Act.
Dr Leccese's view is that that most of the Applicant's behaviours of concern are related to the Applicant's autism. Dr Pincus takes the view that the family's care burden would significantly diminish if the Applicant's ADHD were treated pharmacologically.
It is not the role of the Tribunal to determine definitively what is driving the Applicant's behaviours of concern. As to what (if any) medications the Applicant should trial, this is of course a matter for his parents and treating paediatrician.
However, paragraph 34(1)(c) of the Act requires me to be positively satisfied that the requested support represents value for money, relative to its benefits and the cost of alternative support. In this case I am satisfied that the provision of 2:1 support worker assistance is to be compared to the trialling of ADHD medication to address the Applicant's impulsivity generally and his behaviours of concern specifically. I am satisfied that this alternate support is sufficiently comparable to allow a comparison to be usefully made: National Disability Insurance Agency v Deayton [2025] FCA 562.[72]
It is evident that the parents do not believe that the Applicant's impulsive behaviours are driven by his ADHD. The mother's testimony and written statements about the trialling of medication indicate that she observed no discernible benefit from the various stimulant medications trialled and often reported a significant deterioration in the Applicant's behaviours of concern. Her statements regarding the use of Clonidine, which she stated "coincided with hallucinations and suspected seizures" stands in direct contradiction to Dr Leccese's clinical notes which were that Clonidine was ceased due to its sedative effects. Further, the mother testified that the hallucinations and seizures continued for a year after he ceased taking this medication. Again, Dr Leccese's reports indicate that seizure activity had resolved, based on a normal EEG in February 2022 and a previous MRI in 2017 both of which were 'normal'. By Dr Pincus's account, the mother's descriptions of the Applicant's response to stimulant and other medications were not known side-effects or could be attributed to the effects of withdrawal and that, in any event, careful titration would be preferable to cessation. I am persuaded that the mother's description of the Applicant's adverse side-effects to medication should not be accepted without corroborating independent evidence. As Dr Pincus observed, there may be inherent biases at play that may impact on her assessment of its efficacy. This is not an implausible theory given the mother's conviction that ADHD is not relevant to the Applicant's behaviours of concern and that the only appropriate way to address these behaviours is the provision of 2:1, 24/7 support and the erection of a diplomat fencing.
I am not satisfied that the trial of stimulant medication to treat the Applicant's ADHD has been sufficiently explored at this point to confirm or exclude Dr Pincus's hypothesis that there would be a marked improvement in the Applicant's behaviours of concern should his ADHD be appropriately treated with medication.[73] I was much persuaded by Dr Pincus's observation that when trialling such medications it is imperative that there are multiple sources of information regarding its efficacy to counter any bias. It may well be the case that there will be no significant change in the Applicant's behaviours of concern following the use of stimulant medications. Consistent with Dr Pincus's recommendation if there is no significant reduction in the Applicant's behaviours of concern within a six month period, consideration should be given to paediatric psychiatric review. Nevertheless, it would be inappropriate in the circumstances not to at least trial stimulant medication to address the Applicant's hyperactivity and impulsivity and simply endorse the provision of 2:1 paid support during the day and 1:1 overnight.
As I have already stated, there is simply no reliable data before me that captures the frequency or intensity of the Applicant's nighttime wakefulness to persuade that paid overnight support is warranted in this case. In any event, changes to the Applicant's medications and provision of regulating experiences may well see a shift in the Applicant's sleep patterns to reduce the frequency and duration of his nighttime wakefulness. For these reasons I am not satisfied that the provision of 1:1 overnight support is either reasonable or necessary in the circumstances.
I am not positively satisfied that the Applicant's request for 2:1 day time and 1:1 nighttime support worker support represents value for money in that the costs of the support are reasonable when compared to the cost of alternative support in respect to the trialling of stimulant and other medications to attempt to ameliorate the Applicant's behaviours of concern. I am satisfied that the comparable support of trialling stimulant medication may achieve the same outcome as the provision of 24/7 2:1 support at a substantially reduced cost as set down at r 3.1(a) in the Support Rules. When assessing value for money consideration of rules 3.1(b), (c) and (f) indicate that it would be premature to provide 24/7 2:1 support in the circumstances where there is an absence of evidence that the proposed support will substantially improve the life stage outcomes for the Applicant or increase his independence. As Dr Pincus warned, the provision of the requested support may in fact foster dependence and reliance on this more costly support.
I conclude that paragraph 34(1)(c) of the Act is not established in respect to the provision of 2:1 support worker assistance during the day and at a ratio of 1:1 overnight.
I note that I found persuasive Dr Pincus's written and oral statements about the provision of support at this intensity and volume may result in reliance by the Applicant (and his parents) and would not foster his social and economic participation or meet his stated goal of increased skill building in various domains (as stated in his NDIS plan). Having found 34(1)(c) criteria not met I am not required to consider the other criteria; nonetheless, paragraph 34(1)(a) is also not established.
I wish to note that there are plainly environmental factors at play that also contribute to the Applicant's behaviours generally. The allied health reports stated that the Applicant requires support worker assistance due to the parents' inability to implement therapeutic interventions within the home. It is also apparent that Ms Kelly also is of the opinion that support workers are necessary to meet the needs of the younger children by allowing the mother to attend to them and not have her attention divided between them and the Applicant. The environmental factors are multi-faceted and in making such a finding I do not wish to give the impression that I blame the parents nor do I fail to recognise the extreme pressure they are under caring for the Applicant and his younger siblings who also appear to demand much of the parents' focus and physical and psychological energy. I accept the parents are exhausted and at hearing their despair at their current situation was palpable. Having had the benefit of their evidence, it is clear that it is their honest belief that 2:1 support for the Applicant and the erection of a diplomat fence will solve most of the family's problems. The parents' capacity is also significantly compromised due to their own mental and physical health concerns.
The family's perpetual state of crisis provides some explanation for quick abandonment of recommended behavioural strategies. One such example is the water play table which was prescribed by Ms Regan to provide a safe and appropriate space for the Applicant to explore his interest in water. Apparently, after an incident where the Applicant broke up the table when the parents attempted to relocate it, it was not rebuilt. Similarly, bolting of doors was also abandoned because the Applicant would use a chair or screwdriver to attempt to open or remove the bolts. Likewise, the Houdini harness is not used routinely, even though upon arrival in the family home the Applicant reportedly quickly exists the car and engages in risk-taking behaviours. Plainly, the parents have difficulty in providing a safe and stimulating environment for the Applicant. Again, this is no criticism of the parents. Rather, it is just a reflection of their current capacity.
My conclusion on this point is supported by the description of the Applicant's behaviour at NAPA. The Tribunal was urged to consider that this is because the Applicant is in receipt of 3:1 care whilst at the NAPA. I am not so convinced, though of course I cannot rule it out completely. I am persuaded by Dr Pincus's view that NAPA controls for the chaos of the family home: the Applicant is away from the family home for three weeks, he is engaged in stimulating activities and has the sole attention of his mother, who also has less demands placed on her during the same period. It may well be that only after the Applicant attends respite through the provision of short-term accommodation (currently funded for four weeks per annum) that a reliable 'baseline' of the Applicant's behaviour may be established.
Having said that, I am positively satisfied that the provision of support worker assistance at the ratio of 1:1 for six hours each weekday and each weekend for 48 weeks a year[74] is reasonable and necessary. I note that this is two hours more than recommended by Dr Pincus and advocated for by the Respondent. However, it is apparent on the evidence before me that the Applicant requires significant support in the afternoons, at time when it is imperative that he receives 1:1 assistance to engage in activities that meet his sensory seeking needs as well as activities that can assist with regulation. The additional hours are justified in my view as Dr Pincus's recommendations were made on the basis that the diplomat fence should be funded and would provide a circuit breaker in respect to the Applicant's absconding behaviours.
It may be that the provision of 1:1 support that will be funded going forward, there will be a reduction in the behaviours of concern as it is expected that the support worker will employ strategies that focus on the Applicant regulating himself and providing sufficient scope for him to seek out sensory experiences in an adaptive and appropriate way. It is appropriate to provide this level of support particularly to enable support workers to implement behavioural and regulation strategies to address the Applicant's autism related behaviours as recommended by the occupational therapist, behavioural support practitioners and NAPA. It is imperative that this support is exclusively provided to the Applicant. It is funded not to assist the parents in managing the household or meet the younger children's needs. It is only on this basis that I find that the provision of 1:1 support worker assistance for six hours per day meets paragraph 34(1)(aa) of the Act.
I am satisfied that support worker assistance at the ratio, duration and frequency will assist the Applicant to meet his expressed goals and to undertake activities to facilitate his social and economic participation. Paragraphs 34(1)(a) and (b) of the Act are met.
Further, I am persuaded that the provision of this support does represent value for money in that the costs of the support are reasonable relative to both the benefits achieved and the cost of alternative support in accordance with paragraph 34(1)(c) of the Act.
Having regard to the severity of the Applicant's impairments I am satisfied that the provision of these supports will be effective and beneficial having regard to current good practice. Paragraph 34(1)(d) is met.
Part 3.4 of the Support Rules provides guidance as to what should be considered when determining whether the provision of a support takes into account what is reasonable to expect families, carers, informal networks and the community to provide. I am satisfied that it is appropriate that the parents (and other informal supports) provide the remainder of care and supervision to the Applicant. Given his age, it is not unusual for parents to provide substantial care and support. I accept that the child's care needs are greater than those of a child of a similar age. However, I am satisfied that with the provision of six hours per day and eight hours per day on weekends will assist the parents in meeting the Applicant's needs outside these hours. This is particularly so if the support workers are provided sufficient training to ensure that the Applicant's sensory seeking needs are met during these periods. I am satisfied that the provision of support at this ratio takes into account what it is reasonable to expect the Applicant's parents, extended family and informal networks to provide. Paragraph 34(1)(e) of the Act is satisfied.
And finally, it is not in dispute, and I so find, that the provision of support worker assistance is an NDIS support, pursuant to paragraph 34(1)(f) of the Act.
Taking into account the findings above, I am of the view that it is both reasonable and necessary to amend the Applicant's social, community and civic participation (SCCP) funding to two hours of funded SCCP support each on Saturdays and Sundays for 48 weeks per annum. I am satisfied that this meets the cumulative requirements set down in subsection 34(1) of the Act.
Whilst outside my remit, it is also apparent that the parents require supports to address their psychosocial health as a priority. By addressing this, the parents will be in a much better position to meet their ongoing needs and that of the children. Further, it is also evident that the family system requires support by family support services (such as those previously engaged by the family). These are not supports that the Scheme are responsible for. This is particularly important given that it has been raised that the parents have considered relinquishing care.

[80]

Provider Travel - Labour Costs (Time) > > The NDIA uses the Modified Monash Model (MMM) to classify locations based on remoteness and population size, categorising them into MMM1 (major cities) to MMM7 (very remote areas). The NDIA modifies the classification of some locations to enable service delivery in isolated areas to support service delivery. > > When a provider claims for labour costs (travel time) related to a support, they can claim for up to 30 minutes of travel to and from each participant in MMM1-3 areas and up to 60 minutes in MMM4 5 areas for each eligible worker. This is known as a travel time limit. The MMM classification is based on where the participant is when the support is delivered. More information can be found on page 30. > > In addition to the above travel, providers delivering core and capacity-building supports can also claim for travel time from the last participant to their usual place of work but only if they must pay their worker for the return travel time and this is subject to the relevant travel time limit. > > If a worker travels to provide services to multiple participants during the same trip, the travel time (including return travel where applicable) can be divided among the participants. This division should be agreed upon with each participant in advance as part of their Service Agreement. Travel time claims must be made separately from the primary support claim using the same line item and the "Provider Travel" option in the myplace Provider Portal. The hourly rate for travel claims should be the same as the rate agreed for the primary support, or lower if agreed with the participant. > > ... > > Provider Travel - Non-Labour Costs > > If a provider incurs costs, in addition to the cost of a worker's time, when travelling to deliver Face to-Face supports to a participant (such as road tolls, parking fees and the running costs of the vehicle), they may negotiate with the participant for them to make a reasonable contribution towards these costs. The NDIA considers that the following would be reasonable contributions:

[83]

The Respondent submits that the costs of support worker travel are subject to the rules specified in the Pricing Guide. The 2025-26 Pricing Guide relevantly states that travel costs can only be funded in certain circumstances, including where a support worker operating as a sole trader is travelling from their usual place of work and to or from the participant.[75] In such situations the support worker can claim travel costs from a participant's plan. As for non-labour travel costs, the Pricing Guide dictates that this is $1 per kilometre of travel and other associated costs (tolls, parking etc) up to the full amount.[76]
I make the following observations.
The Price Limits Guide is an operational guideline published by the Agency on its website and it applies to the provision of supports for all Scheme participants.[77] It sets out the pricing arrangements and price limits that apply to the provision of supports. It contains general rules that apply when a registered provider makes a claim for payment for a support and deals specifically with claims for non-direct services, including claims for travel and other claims such as where a service is cancelled at short notice or payment for non-face-to-face services. It also dictates that registered providers must generally not add any other charge to the cost of the supports it provides to a participant.[78]
In respect of support workers, the Price Limits Guide imposes price caps. It states that the cost model estimates the fully loaded cost of a billable hour of support considering: base pay; shift loadings; leave entitlements; salary on costs; employee allowances; operational overheads (including supervision costs, utilisation costs and workers' compensation costs); corporate overheads and margin.[79]
It is well established that, like all governmental policy, the Price Limit Guide should be applied by the Tribunal unless there are cogent reasons not to. Whilst the Tribunal is not bound to follow the Price Limit Guide, if it is not followed, there must be cogent reasons not to do so.[80] The Federal Court has observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[81]
I find that the Applicant lives in Zone 5 of the Modified Monash Model. The Price Limits provides that the maximum travel time that can be claimed by a support worker employed by a provider is 60 minutes if it is agreed between the provider and the participant. Further, a support worker operating as a sole trader can claim non-labour travel costs if travelling from their usual place of work to or from the participant, or between participants.[82] As for non-labour travel costs, the Pricing Guide dictates that this is $1 per kilometre of travel and other associated costs (tolls, parking etc) up to the full amount.[83]
The Tribunal is significantly hindered in its task as there is no evidence of agreements between the Applicant and his providers or support workers in respect of the reimbursement of travel, nor are any invoices charged by support workers or support providers tendered into evidence. I also note that there is no evidence regarding this risk of withdrawal of support due to a failure to provide travel time , though this is not strictly relevant to the findings that I must make.
As outlined at [185] providers are only permitted to claim travel costs from a participant's plan when all the conditions there outlined are met. Without evidence regarding an agreement as to travel costs between the Applicant, by his nominee, and his provider or evidence that the provider has agreed to pay the support worker for time spent travelling or, that the support workers that provide support to the Applicant are travelling from their usual place of business or between participants I cannot be satisfied that all these requirements are met. Where a plan is not Agency managed (as is the case for the Applicant) it is open for negotiation to take place between a participant and the support worker for different pricing arrangements. Whilst the Applicant may enter into such an agreement, I do caution that the Agency will not necessarily increase available funding to reflect any negotiated increase over and above the price limits in the Pricing Guide.
I am not persuaded that the provision of two hours of support worker travel per day represents value for money, particularly when the Pricing Guide and Pricing Strategy clearly do not make allowance for this.
It follows that I am not positively satisfied that the proposed travel time charge of two hours per day at the daily activity rates for each support worker represents value for money as required under paragraph 34(1)(c) of the Act.
Therefore, this is not a reasonable and necessary support and so is not to be included in the Applicant's statement of participant supports.

[84]

The installation of diplomat fencing is sought on the basis that it will prevent the Applicant from absconding from the home environment.
The complex home modification recommendation in evidence supported the installation of diplomat fencing around the family home.[84] This was, in part, based on there being a marked change in the Applicant's behaviours of concern after the school installed diplomat fencing sometime after April 2023. Quotes dated 16 and 21 May 2025 places the cost at $131,419.50 to $147,246, including 12 opening gates.[85] It is understood that the area included in these quotes includes the family home, outside play areas and the separate dwelling that the family intend to offer disability related accommodation.
It is submitted that this fencing is a specialised, disability-driven environmental modification and is a practical cost-effective measure to manage the Applicant's behaviour, endorsed by his treating practitioners. It is urgently required as the standard residential fencing around the Applicant's home has proven ineffective in decreasing his absconding behaviours. Further, it is submitted that the erection of diplomat fencing will promote the Applicant's independence and family stability by allowing him to safely access outdoor areas around the home and so reducing the supervision demands on family members and support workers.[86]
I have given significant weight to Dr Pincus's support to fund the fencing as it will provide a safe environment for the Applicant and so may obviate the need for a higher level of carer support.[87] I accept Dr Pincus's view that this would be effective and that it would have the additional benefit of addressing parental stressors.[88]
The Applicant submits that as the adjective 'standard' prefaces the term 'home security and maintenance costs' in Item 1(c) to Schedule 2 of the Transitional Rules. Therefore, the remainder of the sentence should be read as applying the adjective 'standard' to each subsequent noun.
I reject the Applicant's proposed construction. The proper approach, as a matter of orthodox statutory interpretation and ordinary grammatical rules, is that a modifier only qualifies the word it directly precedes unless a contrary intention is clearly indicated. The structure of this clause does not indicate that such an intention is present; certainly, an ordinary reading of each noun in the list does is not clearly indicate such an interpretation. Each noun in the phrase is separated by commas and a conjunction which indicates that the noun 'fencing' is to be read as a distinct category.
Item 1(e) supports such a construction, as it reads:

TMCP by his nominee TMCP(N) and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2026] ARTA 446 (27 March 2026)

At a glance

Court

Decision date

Source

Judgment (103 paragraphs)

Legislation Cited (9)

Cases Cited (4)

TMCP by his nominee TMCP(N) and Chief Executive Officer, National Disability Insurance Agency (NDIS) [2026] ARTA 446 (27 March 2026)