TRCH and National Disability Insurance Agency [2024] AATA 2918 | Case summary

TRCH and National Disability Insurance Agency [2024] AATA 2918 | Case summary | Zoe

[48]

Both parties agreed that there should be some exercise physiology in the plan. The provision of exercise physiology to TRCH is consistent with the stated goal of improving TRCH's strength and coordination. A report from Ms Cindy Lee, exercise physiologist, dated 24 May 2021,[26] notes that TRCH needs development of his gross motor skills to learn correct movement patterns. At that time, Ms Lee stated that she was doing 30 minutes per week of hydrotherapy with TRCH. She stated that the pool pressure assists TRCH to get used to a 'lowered threshold of sensory processing'.[27] She stated they are attempting to reduce TRCH's sensitivity to back floating so that TRCH can kick off the wall to build leg power. High-speed ball games are also being used to improve TRCH's processing speed. TRCH was also attending weekly 30-minute land-based sessions focusing on using the correct muscles and movements for gross motor skills. While this report provides a future plan, it gives little information about progress, although it notes that TRCH had gone from being resistant to back floating to being able to back float for two laps of the pool, and that he is able to dive and come back up from the deep end of the pool.
TRCH's school recommends regular extracurricular activities and exercise physiology.[28] None of the school staff gave evidence at the hearing. A physiotherapy assessment in January 2023 noted that TRCH has below average gross motor function, low muscle strength, low postural endurance and difficult behaviour.[29] An occupational therapy assessment of June 2023 recommended that TRCH have access to hydrotherapy.[30] A behavioural assessment recommends that TRCH have exercise physiology and community access.[31] None of the professionals who wrote these reports gave evidence at the hearing, and both the school and the occupational therapist appear to have mirrored the requests made by Ms TRCH.
The evidence given by Ms TRCH, Ms El Rifai and Ms Bazzi is that TRCH finds water soothing and showers frequently during the course of the day. He is able to shower less frequently if he is taken to the pool.[32] When considering the supports to be provided, the Tribunal is satisfied that none of these witnesses were independent third parties. Ms Bazzi acknowledged in her evidence at hearing that she sees herself as an advocate for Ms TRCH and TRCH.[33] Ms El Rifai has a conflict of interest, as she would likely be paid to do support work and attend some therapy appointments.
The evidence of Dr McDowell was that the role of professional therapists in managing TRCH's condition is really very small. His view was that the people who have the greatest involvement with TRCH day-to-day are the ones who need to be trained to provide TRCH with a therapeutic community.[34] He identified that Ms TRCH, support workers, classroom teachers and professionals should act as 'co-therapists',[35] with the professional therapists training the others involved in aspects of TRCH's life. His view was that in using this model there would need to be a consultation with a professional for one hour per month for 'course correction and resetting'.[36] It appears to be on this basis that the Agency has indicated that it is of the view that 12 hours per annum of exercise physiology would be sufficient.
Dr McDowell impressed the Tribunal as a qualified, experienced, independent professional with sound knowledge of best practice and no conflicts of interest. His concern was the best model of care for TRCH and appropriate support for Ms TRCH:

[50]

For this reason, the Tribunal found his evidence to be highly persuasive.
There is some evidence that exercise physiology is beneficial for TRCH. In terms of the criteria to be examined in relation to the support under section 33(5) of the NDIS Act, the Tribunal is satisfied that this support will assist TRCH to pursue his goals by improving his strength and his sensory tolerance and that the support is likely to be effective and beneficial for TRCH. There are no other sources of funding for this support. Any improvements in his capacity are likely to facilitate his social and economic participation. The Tribunal finds that the provision of this support meets the criteria set out in s 33(5)(a),(b), (d) and (f) of the NDIS Act. There has been limited evidence presented about whether the cost of this support is value for money, but the Tribunal notes that the hydrotherapy component of the exercise physiology combines both the sensory and settling effects of water for TRCH, and the physical improvements in strength and coordination which could be expected from other supports such as physiotherapy or a gym program. There is also some evidence that TRCH made progress in hydrotherapy. This appears to be a reasonable therapy for TRCH to engage in. The Tribunal is satisfied that the support is value for money and while it is reasonable for Ms TRCH to continue to take TRCH to the local heated pool for recreation, the provision of exercise physiology in the form of hydrotherapy would be an adjunct to this. The Tribunal is therefore satisfied that exercise physiology, in the form of hydrotherapy, meets all the criteria set out in s 33(5) of the NDIA Act.
The Tribunal could not so be satisfied about the land-based component of the exercise physiology. The evidence before it does not indicate that TRCH derived any particular benefit or improvement from engaging in this program, nor that those benefits could not be achieved by the occupational therapy both parties acknowledge is required.
The Tribunal considered how many hours of exercise physiology, in the form of hydrotherapy, should be provided to TRCH. The evidence before it is that TRCH made some improvements by attending 30-minute sessions weekly. The evidence did not indicate over what time period that he attended these sessions. It appears to be an activity that he enjoys, and which contributes to his behavioural management, his strength, and his sensory processing.
The Tribunal considered the positions of both parties. It formed the view that 12 hours of exercise physiology per year would likely be insufficient. This allows no time for the exercise physiologist to train Ms TRCH and support workers in the necessary techniques or for them to liaise with other key therapists, such as TRCH's occupational therapist, to ensure that all the therapy supports, and other supports, are working on the same skills. It also seems to allow no time for report writing. If the therapy interventions are to progress on the model proposed by Dr McDowell, adequate time for these additional tasks is critical, especially initially.
Consequently, the Tribunal is satisfied that it is reasonable and necessary to fund 18 hours of exercise physiology in TRCH's plan, and doing so meets the requirements set out in s 34(1) of the NDIS Act. This allows for one hour per month for hydrotherapy and provider travel, two hours for report writing and four hours for training and liaison. The evidence of Ms TRCH and Ms El Rifai is that they try to attend the local heated pool with TRCH most afternoons. If they are provided with the training and techniques to progress his hydrotherapy, they can do so as part of their normal activities.

[51]

Both parties agree that speech pathology is reasonable and necessary for TRCH. Ms TRCH seeks 82 hours per annum of speech therapy, plus travel. In Mr Jason's report, he recommends that TRCH receive 50 hours per annum with a speech therapist, 50 hours per annum with a speech therapy aid, 12 hours per annum of speech therapy intensive and two hours of reporting, a total of 114 hours per annum.[38] In his evidence at hearing he revised this recommendation to 30 minutes per week with a speech pathologist, 30 minutes per week with a speech pathology aide, and 12 hours per annum of intensives. Allowing for a two week break at Christmas this would be 62 hours. The Agency is of the view that 60 hours per annum is reasonable and necessary.
Mr Jason stated that evidence-based research has identified that having speech pathology twice a week with two different speech pathologists is more beneficial than the typical program of 30 minutes per week. It is also beneficial to have these sessions in a range of forums including the clinic, home, and school in order to assist with generalised communication skills across environments.[39] Mr Jason gave the opinion that TRCH's expressive language skills are at an age equivalent of less than one year but that his receptive language skills are higher. He is able to follow commands and gestures, although he does not interact with another person unless he wants something.[40] Mr Jason stated that he had observed improvements in TRCH's communication skills during his period of intensive sessions as, by the end of the three sessions, TRCH was able to use the skill of tapping on his chest to ask for something, which had been taught to him in the first session.[41] Mr Jason confirmed that part of the role of a speech therapist would be to pass those skills on to the others in TRCH's life, like Ms TRCH, Ms El Rifai and the school.
Mr Jason agreed that TRCH has made slow progress with therapy.[42] He also agreed that there is a natural overlap between speech therapy and occupational therapy, particularly in areas like teaching the following of instructions.[43] He said that his plan for TRCH would be for him to initially be able to request objects and actions, then move to 2-step instructions, eye contact, turn taking and basic name recognition. He said that the funding for speech therapy would need to include travel because of the necessity of seeing and working with TRCH at his home and school.[44]
Dr McDowell noted that TRCH has had access to therapy supports for nine or 10 years and is still operating at one year old level.[45] He was of the view that most of TRCH's learning would happen through behavioural repetition and that TRCH's failure to learn so far is not due to fragmentation of therapy but to how his brain works.[46] He was not of the view that any type of therapy should occur more frequently than monthly.
The parties do not dispute that the support of speech therapy meets the requirements set out in s 34(1) of the NDIS Act, and the Tribunal agrees. As TRCH is non-verbal and has not been taught to use communication boards or other alternative communication methods, the Tribunal considers it to be a crucial support to enable TRCH to participate fully in the activities of his life. Identifying a method of communication that works for TRCH is essential. The Tribunal must determine how many hours of speech therapy are reasonable and necessary.
The evidence before the Tribunal is that TRCH's inability to communicate effectively is a key contributor to his level of functional impairment. Not only can he not express his wants and needs, his inability to do so appears to cause him considerable frustration and to contribute to his 'meltdowns' and behavioural difficulties:

[53]

The Tribunal noted that, ultimately, the recommendation of Mr Jason is for two 30-minute sessions of speech pathology per week with two different practitioners; 12 hours of intensives in school holidays; two hours for report writing, and provider travel to enable the necessary activity of working with TRCH at his school and home. This is 64 hours per annum plus travel. Mr Jason also gave evidence that TRCH had been able to learn communication techniques during his intensive sessions of speech therapy, so it appears that this therapy is likely to be effective and beneficial for TRCH at a higher intensity. Ms TRCH's evidence was that TRCH's communication skills improved during the period of December 2023 and January 2024 when he was seeing Mr Jason on a regular basis.[48]
The Tribunal considers it appropriate for the two sessions per week of speech pathology to occur during the 40 weeks of school term, with intensive sessions during the school holidays. This would make 54 hours per annum, plus travel, when report writing is included. Allowing for the speech pathologist to provide training to Ms TRCH and support workers and to liaise with TRCH's other practitioners and school would bring the total number of hours to 60 hours per annum, without travel.
In this case, provider travel is essential. The speech pathologist must work with TRCH at home and at school, and also work with the school, to maximise the benefit of the therapy. Ms TRCH gave evidence that she considers that having therapy at school benefits TRCH and it is necessary to retain this.[49] Dr MacDowell's evidence is that the therapists must attend TRCH's school and work with the school, as this is the primary place for capacity building.[50] While it is apparent that only a portion of TRCH's speech pathology appointments need to be at school or home this will require the provider to travel, as will observing TRCH at school and the techniques being used to communicate with him in the school community with a view to ensuring these techniques are consistent across all areas of his life.
The Tribunal finds that the reasonable and necessary support for speech therapy under s 34 of the NDIS Act is 60 hours per annum of speech therapy, plus 15 hours for provider travel - a total of 75 hours per annum. The Tribunal expects that the intensity of this support will reduce in future plans - either because TRCH has made progress and those people who are involved in his life have been appropriately trained; or because it has been clearly demonstrated that TRCH is unable to benefit from this therapy.

[71]

Ms TRCH seeks four hours per day of assistance from a support worker for six days per week (24 hours). The Agency is of the view that two hours per day for seven days per week (14 hours) is reasonable and necessary. The Agency appears to have formed this view on the basis of Dr McDowell's report in which he says that two hours of 1:1 support each school day should be sufficient, with an additional two hours of 1:1 support on weekend days.[77]
The Tribunal notes that this does not specifically take into account Dr McDowell's view that feeding supports should be a task of home support; that the support workers who work with TRCH will need to be trained by his therapy team, and will therefore require the time to attend therapy appointments; or that the support workers, in conjunction with Ms TRCH, will be responsible for implementing these therapeutic interventions across TRCH's day. In his report, Dr McDowell notes that TRCH requires care in almost all areas, as would a very young child, but in contrast to a very young child, the provision of care to TRCH is made more difficult due to his age, size and challenging behaviours.[78]
At hearing, Dr McDowell acknowledged that the two hours of support work per day was simply for physical tasks such as feeding TRCH, getting him ready for bed and bathing him. He said that this time was about function rather than therapy.[79] Nonetheless, if this functional time is to incorporate consistent therapeutic approaches to managing TRCH in a therapeutic community as suggested by Dr McDowell, the support workers are going to require additional time to liaise with TRCH's therapists, learn techniques and provide feedback. There also needs to be some time provided for support workers to attend the local heated pool with TRCH on some afternoons in order to assist him with his hydrotherapy in a non-clinical environment, and to give Ms TRCH some respite. This could all be incorporated into some additional funding for the purpose of SCCP at a weekday rate. This would be consistent with the goals of improving TRCH's skills and putting him in a position where he is willing and able to play with other children.
Ms El Rifai holds a Diploma of Community Services and a Statement of Attainment in Implementing Restrictive Practices. Ms El Rifai's evidence was that she has been working with TRCH since mid-2021 and that she has worked with him regularly for 4 to 5 hours per day, including Saturdays and Sundays. On average, it would have been between 20 and 30 hours per week. Ms El Rifai said that she has sometimes worked for seven hours if it has been necessary.[80] The Agency noted that this degree of support work was not funded in the August 2021 plan.
Ms El Rifai stated that she takes TRCH to the local heated pool and to the shops. She also assists with mealtimes and personal care. She stated that she has to take him to the toilet and uses a disabled toilet when they are out in the community. She needs to wipe him after urinating and defecating and also needs to wash his hands for him. He cannot toilet alone. He can wash his body in the shower, but not his hair. She stated that his mood has changed since he has commenced puberty and he is now more difficult to manage. She explained that TRCH drags her around to show her what he wants and that he has also grabbed her and head-butted her.[81]
Ms El Rifai stated that TRCH has now reached the point where sometimes she feels like he needs more than 1:1 support. She thought that he had been more compliant before he became a teenager. He will grab and try to hit other people if he has a meltdown during community access. She said that he can come out 'ready to attack'[82] and that he is fast. She said that she has to hold his hand during community access because he will walk ahead or run off. When they go to the shops he will run behind the counter and take what he wants. He has no concept of road safety.[83] Ms El Rifai stated that there have been some improvements in TRCH's skills as now he will hold a fork and spoon; stay on the toilet more; flush the toilet more often; stay at the sink to have his hands washed; and let the staff at the shop scan the snack he has picked.[84]
Ms El Rifai stated that even spending a short amount of time with TRCH is challenging and takes a toll. She was of the opinion that Ms TRCH is sleep deprived and is unable to sleep restfully because of her fear that TRCH will abscond from the home.[85]
Ms TRCH works as a casual teacher and is currently employed full-time - although she does not work during school holidays. Ms TRCH has a neck and back injury which impacts on her ability to undertake the physical care tasks required by TRCH.[86] She explained that she has to take TRCH to her own physiotherapy appointments because she has nobody to look after him. She has no family support. Her parents and sister live nearby but are not supportive of her and do not assist her with TRCH's care. In fact, they have recently put their house on the market with the intention of returning to live overseas. This will leave Ms TRCH and TRCH as the only family members left in Australia. Ms TRCH described this as a 'big thing',[87] even though they only see her family for an hour or two a couple of times per week. Ms TRCH has required psychological support herself to deal with the attitude of her family.[88] Ms TRCH described herself as suffering from carer burnout.[89] She stated that this burnout affected her ability to follow through with the speech pathology 'homework' given to her by Mr Jason.[90]
Ms TRCH stated that, in her opinion, TRCH's meltdowns are becoming worse and that the school has informed her that he has been hitting people at school and hitting his support worker at school.[91]
Most of the professional reports before the Tribunal recommend that TRCH be provided with support work services and respite. These recommendations vary, and most do not specify the number of hours which should be provided. Dr Zondiwe Mwanza, consultant paediatrician, has supported access to respite for Ms TRCH as TRCH requires extensive supervision, support and behavioural intervention.[92] Mr Hosari recommends 10 hours per week of home based assistance, plus eight hours per day of community participation on a Saturday and Sunday.[93] Ms Bazzi recommends two hours per day for personal care, seven days per week plus five hours of social, community and civic participation on a Saturday.[94] Ms Morada initially recommended 10 hours per week for respite, therapy and personal care.[95] In an unsigned supplementary report she changed this recommendation to 30 hours per week of core support work plus an additional 15 hours per week for school holidays.[96] The Tribunal must treat this recommendation with caution as the document on which it is made is not signed and is not on letterhead, as with the initial recommendation, and Ms Morada did not give evidence at the hearing to clarify this change of position.
Notwithstanding the conflicting evidence, the Tribunal can identify that there is broad consensus that TRCH requires at least two hours per day of 1:1 assistance with self-care and activities of daily living. There is no consensus about the amount of time which should be provided for SCCP, although the reports, including that of Dr McDowell, indicate that 1:1 assistance is required for activities in the community. The reports about TRCH's behaviour indicate that he is difficult to manage.
The Tribunal is satisfied that two hours per day, seven days per week of support at a ratio of 1:1 is reasonable and necessary for TRCH for self-care and activities of daily living, taking account of the factors in s 34(1) of the NDIS Act. The Tribunal finds that this is insufficient to meet TRCH's needs, however, because he also needs some time in the community with a support worker through the week, particularly attending the local swimming pool, which helps him to self-regulate. Support workers would also need additional time to attend therapy appointments with TRCH so that they can learn and apply a therapeutic approach to TRCH's daily life. On balance, the Tribunal is satisfied that it would be reasonable and necessary for TRCH to also be provided with an additional three hours per week of 1:1 support work for weekday community access; and a further one hour of 1:1 weekday support for the purpose of the support worker being trained in implementing therapy. This would usually occur by them attending therapy appointments with TRCH. These hours should be able to be used flexibly across weekdays as TRCH and Ms TRCH require.
The Tribunal therefore finds that TRCH's NDIS plan must include two hours per day of 1:1 support for personal care and activities of daily living; three hours per week (weekday) of 1:1 support for SCCP and one hour per week (weekday) of 1:1 therapy support.
The parties have agreed to five hours of SCCP on a Saturday. The evidence before the Tribunal indicates that this is a reasonable and necessary support for TRCH, which will supplement the weekday activities and give Ms TRCH a more meaningful break. Dr McDowell's evidence was that five hours of SCCP on a weekend is reasonable to give Ms TRCH respite and time to attend to other family activities, but that from a clinical perspective a longer time would likely be tiring for TRCH. Noting that both the five hours of SCCP and the STA is to be provided on a Saturday, Ms TRCH will have access to five extra Saturday hours each time that TRCH attends STA to extend some of these sessions of SCCP if required. TRCH will still be provided with two hours of support on a Sunday, and it is reasonable that Ms TRCH does not have further support on a Sunday. The total support hours for at home supports, community access and therapy will therefore be 23 hours per week, plus STA.
The Tribunal finds that this support has been reasonable and necessary and has met the requirements set out in s 34(1) of the NDIS Act since the August 2021 NDIS plan.

[72]

Ms TRCH seeks 32 hours per week of 1:1 supports during school holidays. The Agency is of the view that 18 hours per week of 1:3 support is appropriate.
The parties have also agreed to 12 days per year of STA, but the care ratio for this is also disputed, with the Agency's position being that 1:4 is reasonable and necessary, and Ms TRCH seeking 1:1.
The Tribunal notes that, as Ms TRCH is a casual teacher and does not work over the school holidays, although she may have some work to do, the hours of care that she seeks are equivalent to TRCH's school attendance. It is normal for parents of school aged children to have the children home for the school holidays. This is particularly the case for older children who are too old for mainstream vacation care programs. Of course, these children would also be able to spend some time independently in the community and at the homes of friends, which is not accessible for TRCH. Nonetheless, the Tribunal finds that providing care during school holidays for 32 hours per week does not take account of what it is reasonable for Ms TRCH to provide, and so does not meet the criteria set out in s 34(1)(e).
The Agency has proposed 18 hours of care per week during the school holidays. In addition to the increased supports for self-care and activities of daily living; and SCCP and therapy which will result from this decision, this amounts to 41 hours per week of care during the school holidays - a substantial amount.
At issue is also the care ratio at which this care is to be provided. Dr McDowell's evidence is that the support level required is different depending upon the activities involved. For community access, TRCH would require 1:1 support. For a disability specific holiday program which is appropriately secured and caters to children with TRCH's needs, Dr McDowell thought that a care ratio of 1:3 would likely be sufficient, and if respite was to be provided in a group home arrangement, which was also disability specific, 1:4 would likely be suitable. Dr McDowell noted that he has not met TRCH and therefore does not have 'an intuitive clinical feel for the level of support he needs just to be safe':[97]

[74]

Ms TRCH's evidence was that TRCH's class at school consists of six pupils, one teacher and one SLSO.[99] This a ratio of 1:3. She also gave evidence that TRCH's lunchbox comes home full; that he comes home in dirty underwear because he has not been toileted with the assistance he requires; and that he is hitting the staff and students at school. Nonetheless, he currently spends his school day in this care ratio and there is no evidence that the above shortcomings relate to the care ratio. They could be due to the quality of care that he is receiving, a miscommunication about TRCH's needs, short staffing, staff training or a number of other factors.
The Agency confirmed that its intention is for the holiday care and STA to occur in disability specific programs and facilities with trained staff which cater to children with issues like TRCH's, and are intended to keep him safe. He will need to spend time with other children in supported play in order to meet the goal of being able to socialise with other children. This is not facilitated by always providing him with 1:1 supports.
The Tribunal considered the evidence about TRCH. He requires routine and repetition. He can be aggressive. He is non-verbal and has frequent meltdowns. He requires 1:1 support for community access. He currently attends school at a ratio of 1:3. The Tribunal did not have any evidence before it to indicate that TRCH would not be able to attend holiday care and STA in the ratios suggested by the Respondent (other than Ms TRCH's understandable concern), provided that the facilities in which such care occurs are secure and the staff appropriately trained. Only time will tell if these ratios do not work. A trial of care conducted in such a manner will produce observations and incident reports with which to guide future supports. It may be that TRCH requires a higher care ratio even in disability specific settings, but this has simply not been tested.
The Tribunal was concerned that, with TRCH's need for routine and the fact that he is non-verbal, it is unrealistic to simply expect him to transition into such arrangements without additional support. While he attends school at a ratio of 1:3, this is in a very familiar environment, with familiar staff and peers. The Tribunal is of the view that TRCH will need to be supported by his usual support workers while he starts this transition. These workers will be able to offer him security and familiarity while imparting their knowledge to the workers in these new environments. For this reason, the Tribunal decided that it is reasonable and necessary to provide an additional 20 hours of support work for the purpose of transitioning TRCH into holiday care and STA. This would allow his usual workers to attend with him at the beginning of each day for a few days in each environment.
TRCH is able to attend school in a 1:3 care ratio, and there is no evidence before the Tribunal to demonstrate that TRCH will not be able to attend holiday care at a 1:3 ratio or STA at a 1:4 ratio, provided they are conducted in an appropriate environment with trained staff. The Tribunal was unable to find that it is reasonable and necessary to provide TRCH with holiday care and STA at a ratio of 1:1. It may be that care in these ratios does not suit TRCH, but this is yet to be established.
The Tribunal finds that it is reasonable and necessary to provide TRCH with 18 hours per week of holiday care for 12 weeks per year at the ratio of 1:3 and 12 days per annum of STA at the ratio of 1:4, and that these supports meet the criteria specified in s 34(1) of the NDIS Act. Both of these activities are to occur in disability specific environments, rather than in the general community.
Further, the Tribunal finds that it is also reasonable and necessary to provide an additional 20 hours of support work to be used flexibly to assist TRCH to settle into holiday care and STA. This will allow TRCH to transition into these environments with additional support.

[82]

Ms TRCH seeks transport funding of $9,282, being for 10,920 kilometres at 85 cents per kilometre. There was no clear calculation provided as to how this figure was arrived at, nor if it relates to provider travel, activity-based transport, or a combination of both. The Tribunal notes that it has already specified that travel is to be included for the total hours chargeable by professionals for exercise physiology, speech therapy and occupational therapy.
It is apparent that TRCH requires community access with the assistance of a support worker at a ratio of 1:1. He also has school transport funded on an in-kind basis by the NSW Department of Education. He is unable to travel independently, and his behavioural difficulties mean that travelling on public transport with a support worker is not likely to be accessible for him. The Tribunal is satisfied that transport funding for community access relates directly to TRCH's disability. It is also necessary to assist TRCH to pursue his goals of increased independence and socialisation. While it is reasonable for Ms TRCH to transport him to attend community and recreation activities while he is in her care, part of the purpose of TRCH having community access is to relieve Ms TRCH of such responsibilities. It is therefore not reasonable to expect her to transport him to and from community access with a support worker. The Tribunal finds that such transport is not a day-to-day living cost which should be borne by Ms TRCH. It is value for money when charged at the rate set by the current NDIS pricing arrangements as it is cheaper than alternatives like taxis. Ms El Rifai is able to take TRCH out to the local pool and the shops using her own vehicle. TRCH's support workers should be able to charge for such activity-based transport.[101]
It is also necessary for support workers to attend some of the reasonable and necessary therapy appointments with TRCH for the purpose of being trained in those therapies to deliver them across all aspects of TRCH's life. These therapies would not be necessary but for TRCH's disability, nor would the need for support workers to be trained in them. The Tribunal is satisfied that it would be appropriate for a support worker to attend one or another of TRCH's therapy appointments once a month for this purpose.
Given that it is necessary for support workers to attend therapy appointments with TRCH and also to take him on 1:1 community access, the Tribunal was satisfied that it is reasonable and necessary for TRCH's NDIS Plan to include limited transport for community access and support worker attendance at therapy appointments, and that the provision of such support meets the requirements set out in s 34(1) of the NDIS Act. It could not be satisfied that it would be appropriate to provide any other form of transport funding separate to that already specified in this decision.

[83]

Ms TRCH has requested multiple items of assistive technology. These are all recommended by Ms Hoskings in her report 15 June 2023.[102] This report contains a sensory assessment of TRCH and makes recommendations about equipment which may be useful. There is no evidence provided about any alternatives which may have been considered, any trials of equipment which may have been done or any research or evidence base which would support that the equipment in Ms Hoskings' report is the best and most appropriate equipment for TRCH.
The Respondent argued that the provision of the assistive technology would be a duplication of supports because it was a duplication of the goals of the therapy supports. The Tribunal disagrees with this position. The recommended equipment appears to be an extension of the therapy, to enable therapeutic supports to be provided to TRCH in the home as needed, rather than a duplication. This is in keeping with the approach advocated by Dr McDowell that TRCH be supported in a therapeutic community as part of his ordinary life rather than attending multiple therapy appointments. Nonetheless, the Tribunal does agree with the other arguments made by the Respondent that the requested assistive technology has not been established to be best practice or value for money. There is simply insufficient evidence provided about each requested support; alternatives to that support; the evidence base for the support; and any trials to indicate whether this support is of a particular benefit for TRCH, rather than a benefit generally. TRCH is a unique individual with quite particular sensory processing difficulties, and it is entirely possible that he may find some of the recommended equipment unpleasant to use.
The Tribunal is of the view that before the more expensive items such as the Vuly play gym and the Gravitron massage chair could be funded there would need to be evidence about TRCH trialling these technologies and receiving benefit from them rather than a set of generalised recommendations, which is all the evidence the Tribunal has before it. Ms TRCH may like to consider seeking funding for a trial of assistive technology in a future plan with a view to establishing whether specific items are a benefit to TRCH rather than the current 'scattergun' approach. The evidence currently before the Tribunal does not establish that these supports will be effective and beneficial for TRCH as set out in s 34(1)(e), and so they cannot currently be funded.
The Tribunal noted that the August 2021 plan and the subsequent plan replenishments have included an amount of $200 per annum for low-cost assistive technology. Having reviewed the list of very inexpensive items recommended by Ms Hoskings and noting that TRCH has a tendency to break items, the Tribunal was satisfied that it is reasonable and necessary to provide $500 per annum for low-cost assistive technology for TRCH. This would enable Ms TRCH to buy some of the more inexpensive items such as the Jelly Fish chair, fidget toys, Thera putty and visual timers. This appears to be appropriate, as these items are inexpensive and trialling and reporting upon their use would cost more than the items themselves. This gives Ms TRCH some flexibility in meeting TRCH's need for assistive technology without a commitment to expensive items which have not been proven to be effective and beneficial for TRCH.

TRCH and National Disability Insurance Agency [2024] AATA 2918 (15 August 2024)

At a glance

Court

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Judgment (185 paragraphs)

Legislation Cited (3)

Cases Cited (10)

TRCH and National Disability Insurance Agency [2024] AATA 2918 (15 August 2024)