Pursuant to section 114 of the Administrative Review Tribunal Act 2024 (Cth), the following alterations are made to the decision and the statement of reasons for the decision:

1. '40 hours of Occupational Therapy' is replaced with '20 hours of Occupational Therapy'.

1. The sentence 'the current 12-month plan approved on 3 March 2025' is replaced with 'the current 12-month plan approved on 22 May 2025' at paragraph 23.
2. The words 'agency-managed' are replaced with 'plan-managed' in line 6 of paragraph 24.

.........................[SGD]..........................................

General Member D Heron

Respondent: National Disability Insurance Agency

Decision: Pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:

a) Within 14 days of this decision, VWJC's statement of participant supports include as reasonable and necessary supports:

• 480 hours for early intervention therapy delivered by a Therapy Assistant Level 2;

• 60 hours of Behaviour Consultation/Supervision delivered by an Allied Health Therapist;

• 20 hours of Occupational Therapy;
• 3 hours for report writing at the Allied Health Therapist rate; and

• Existing core supports replicated on a pro-rata basis for 40 weeks.

b) The Respondent is to determine the appropriate mechanism and evidence required for the provision of the reasonable and necessary reimbursement for manual claims for supports from 3 March 2025 to the date on which this new statement of participant supports for VWJC is approved.

1. The date by which the Agency must reassess VWJC's plan is to be 9 months or 40 weeks after the date on which these supports are included in VWJC's statement of participant supports.

d) The management of funding for VWJC's statement of participant supports is plan management.

............................[SGD] ............................

General Member D Heron

NATIONAL DISABILITY INSURANCE SCHEME -- reasonable and necessary supports - consideration of s 34 National Disability Insurance Scheme Act 2013 (Cth) - autism - ABA therapy - current good practice - value for money - section 34(1)(c) National Disability Insurance Scheme Act 2013 (Cth) - section 34(1)(d) National Disability Insurance Scheme Act 2013 (Cth).

Administrative Appeals Tribunal Act 1975 (Cth) Administrative Review Tribunal Act 2024 (Cth) National Disability Insurance Scheme Act 2013 (Cth)

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 National Disability Insurance Scheme Act 2013 (Cth)

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

National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)

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

Hill and National Disability Insurance Agency [2023] AATA 3626

McGarrigle v National Disability Insurance Agency

Re Drake and Minister for Immigration and Ethnic Affairs (No 2)

XXWC by his mother and National Disability Insurance Agency [2020] AATA 923

NDIS - Operational Guidelines - Reasonable and necessary supports NDIS - Operational Guidelines - Early childhood approach

National Guidelines for Best Practice in Early Childhood Intervention Early Years Learning Framework - Developmental Milestones

1. VWJC (the Applicant) is four years old and met access to the National Disability Insurance Scheme (the NDIS) through the early intervention pathway for impairments arising from his diagnoses of Global Development Delay (GDD) and Autism Spectrum Disorder (ASD) Level 3.

1. On 28 February 2024 VWJC's statement of participant supports (SOPS) was approved by a delegate of the Chief Executive Officer (CEO) of the Respondent (the Agency), for a 12- month period. On 6 March 2024 VWJC's parents requested a change in circumstances and review of his plan. VWJC's parents confirmed two days later with the Agency that this was a request for a review of a reviewable decision.

1. On 15 April 2024, the Agency decided to vary the original decision (Internal Review Decision).1 The varied plan included additional funding hours approved for early childhood supports under a key worker model.

1. On 20 April 2020 VWJC's parents filed an application for review in the Administrative Appeals Tribunal (the AAT) seeking further support hours in his SOPS.

1. At the hearing held on 14, 15 and 16 May 2025 via Microsoft Teams, VWJC's parents were represented by Ms A Cox of Special Voices. The Respondent was represented by Ms N Blok of Counsel instructed by Ms G Rush of Moray & Agnew.

1. The Joint Tender Bundle and Supplementary Tender Bundle were marked and admitted into evidence. Throughout the hearing other materials were requested of both parties. I acknowledge the obliging nature of VWJC's parents who undertook to locate and tender evidence to assist the Tribunal during hearing sitting days and the intervening evenings. This evidence comprised of:

(a) Emails from VWJC's parents detailing waitlisting for other services, marked A1

1 Joint Tender Bundle (JTB), T1, Application for AAT Review, dated 6 July 2023 page 6.

(b) Two videos of VWJC at Little Learners, marked A2

(c) Little Learners pricing 6 months, marked A3

(d) VWJC words list, marked A4

(e) Example of BC running record notes, marked A5

1. I have considered all the evidence before the Tribunal. I refer in this decision to certain evidence that in my opinion is directly relevant to my determination of this matter.

1. On 14 October 2024, the Administrative Appeals Tribunal (the AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

1. The National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (the Back on Track Act) commenced on 3 October 2024 and made significant amendments to the NDIS Act. The amendments pursuant to section 34 of the NDIS Act will apply to this review.2

1. VWJC's parents seek an increase in capacity building funding in his SOPS. The funding requested is for early intervention supports to continue VWJC's attendance at Autism

2 Section 129 National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No 1) Act 2024.

Partnerships 'Little Learners Program' (LLP). LLP is an early intervention Autism program based on the principles of Applied Behaviour Analysis (ABA) therapy.

1. LLP is run by Autism Partnerships and their fee schedule is comprised of the following supports:

• 27 hours per week of 1:1 Behaviour Therapy for 50 weeks - $91,129.50;

• 6 hours/week of Small-Group Behaviour Therapy (1:2) for 50 weeks -

• 3.5 hours/week of Behaviour Consultation for 50 weeks - $33,948.25;

• Behaviour Consultation travel of 12 hours to home/educational setting/community (1 visit per month), for 50 weeks - $2,327.88;

• 1.5-hour case consultation/fortnight for Behaviour Therapists (4.5 hrs/fortnight), for 25 weeks - $9,763.88;

• Non-face-to-face support - activities as part of delivering support items 1 and 2, occurring prior to and after each daily session (4 hours/week), for 50 weeks - $17,358.00;

• 3.5 hours of Standardised Assessment with a Speech Pathologist - $678.97;

• 8.5 hours of Standardised Assessments with a Psychologist - $1,895.42;

• 6 hours for NDIS Progress Report from Behaviour Consultant & Speech Pathologist - $1,163.94.

1. LLP is a 12-month program that costs $171,285.84 per annum**.**3

3 JTB, A8 AP Little Learners Fee Schedule October 2024, p25.

1. VWJC's parents seek reimbursement for out-of-pocket expenses relevant to fees and other therapy expenses of approximately $48,000 from plan depletion in late 2024 to current. They also request to self-manage VWJC's SOPS.

1. By the final day of the hearing the Agency agreed that the assessments undertaken by VWJC's parents in obtaining VWJC's ASD diagnosis should be funded by the Agency upon receipt of invoices.

1. The issue of out-of-pocket expenses as a reimbursement, remains for my consideration.

1. Plan funding is important to this matter because Autism Partnerships is not a registered NDIS provider. This means that any participant wishing to utilise their NDIS funding for the LLP will need to have either plan-managed or self-managed funding.

1. I will set out the history in relation to the management of the VWJC's plan. In July 2024 VWJC's parents made a section 48 review request to the Agency due to fund depletion. The Agency approved a new plan on 24 August 2024 for a 12-month period and this plan was self-managed.

1. In October 2024, VWJC's parents requested a review due to funding depletion. This was refused by the Agency.4

1. In February 2025, the Agency submitted they would initiate a new plan due to funding depletion; and that this would be Agency managed. This proposal was not agreed to by VWJC's parents.

1. On 4 February 2025, a Directions Hearing was held by the Tribunal and the matter was timetabled to hearing. On 3 March 2025, the Agency approved a new plan for the 12-month period ending 3 March 2026. This plan is Agency managed.

4 JTB, S7, Respondent's Revised Statement of Facts, Issues and Contentions dated 23 April 2025, p1423.

1. VWJC's parents submit the decision to Agency manage VWJC's funding, created a risk of harm that led to a regression for VWJC as he was not able to continue at LLP.5

1. Prior to the conclusion of the hearing, the parties agreed that plan-management was appropriate for further SOPS. I agree with this approach.

1. The current 12-month plan approved on 22 May 2025 has capacity building improved daily activities funding of $64,016.88 as a stated support.

1. The plan outlines that funding can only be used as follows:

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

1. The role of the Tribunal is to make the correct or preferable decision based on the material before it.7 In reviewing the decision:

(i) the Tribunal stands in the shoes of the delegate/internal reviewer and must make the correct or preferable decision based upon the evidence and other material before it8 and

5 JTB, S1, Applicant's submission on Plan Management proposal dated 30 January 2025, p1323.

6 JTB, R1, NDIS Plan dated 3 March 2025 - 3 March 2026 p1195.

7 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at 37.

8_Esber v The Commonwealth_ [1992] HCA 20; (1992) 174 CLR 430 at 440_; Frugtniet v Australian Securities and Investment Commission_ [2019] HCA 16; (2019) 266 CLR 250 at 51.

(ii) the scope of the Tribunal's jurisdiction is determined by reference to the scope of the internal reviewer's powers under section 100 of the NDIS Act, which is in turn informed by the scope of power under section 33(2) of the NDIS Act.9

1. The relevant provisions under the Administrative Review Tribunal Act 2024 (Cth) (ART Act) are sections 54 and 105.

National Disability Insurance Scheme Act 2013 (Cth)

1. I note the following aspects of the statutory regime.

1. Section 31 of the NDIS Act sets out several principles that apply to the development of a NDIS plan for a participant. The purpose of the plan is to state how the funds provided for in the participant's SOPS are to be managed.

The preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:

(a) be individualised; and

(b) be directed by the participant; and

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

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

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

9 QDKH, by his litigation representative BGJF v National Disability Insurance Agency (2021) FCAFC 189 at 7.

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

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

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

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

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

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

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

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

1. A participant's plan does not take effect until the SOPS forming part of the plan has been approved by the CEO under s 33(4) of the NDIS Act. Section 33 of the NDIS Act sets out certain matters that must be included in a participant's plan, including: have regard to the participant's statement of goals and aspirations (s 33(1)); have regard to relevant assessments conducted in relation to the participant (s 33(5)(b)); and have regard to the operation and effectiveness of any previous plans of the participant (s 33(5)(f)).

1. Section 4 provides the general principles guiding actions under the NDIS Act and relevantly states:

Section 4 - General principles guiding actions under this Act

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

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

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

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

1. As at the commencement of this hearing, section 34 of the NDIS Act states:

(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and

necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:

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

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

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

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

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

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

(f) the support is a NDIS support for the participant Note: For the purposes of paragraph (aa):

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

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

(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(aa) to (f).

1. The relevant rules in respect of this review are the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (the Support Rules).

1. Rules 3 and 5 of the Support Rules relate specifically to subsections 34(1)(c) - (e) of the

• 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.

• 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;

(c) for all participants - the desirability of supporting and developing the potential contributions of informal supports and networks within their communities.

Supports appropriately funded or provided through the NDIS

• 3.5 Schedule 1 sets out matters for the CEO to have regard to in considering whether supports are most appropriately funded or provided through the NDIS, rather than through other service systems (service systems is defined in paragraph 6.4).

1. Part 5 of the Supports Rules sets out the general criteria for supports:

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

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

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

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

(d) it relates to day-to-day living costs (for example, rent, groceries and utility fees) that are not attributable to a participant's disability support needs.

• 5.2 The day-to-day living costs referred to in paragraph 5.1(d) do not include the following (which may be funded under the NDIS if they relate to reasonable and necessary supports):

(a) additional living costs that are incurred by a participant solely and directly as a result of their disability support needs;

(b) costs that are ancillary to another support that is funded or provided under the participant's plan, and which the participant would not otherwise incur.

1. Schedule 1 as referenced in Rule 3.5 is instructive of the supports that will be 'most appropriately funded' under NDIS. The relevant provisions are as follows:

• 7.8 The NDIS will be responsible for personalised supports, specific to a child's disability (or developmental delay), which are additional to the needs of

children of a similar age and beyond the reasonable adjustment requirements of early childhood development service providers.

• 7.9 The NDIS will be responsible for early interventions for children with disability (or developmental delay) which are:

(a) specifically targeted at enhancing a child's functioning to undertake activities of daily living, but not supports which are specifically for the purpose of accessing a universal service such as school readiness programs that prepare a child for education; and

(b) likely to reduce the child's future support needs, which would otherwise require support from the NDIS in later years, including through a combination and sequence of supports.

(a) meeting the early childhood education and care needs of a child with a developmental delay or disability required by children of a similar age including through inclusion supports that enable children to participate in early childhood education and care settings; or

(b) supports, which are clinical in nature provided in the health system, including acute, ambulatory, or continuing care; or

(c) new-born follow-up provided in the health system, including child and maternal health services.

1. As a further consideration is section 5(f) of the NDIS Act which contains the general principle guiding the actions of people who may do acts or things on behalf of others under the scheme. It provides as follows;

(f) if the person with disability is a child--the best interests of the child are paramount, and full consideration should be given to the need to:

(i) protect the child from harm; and

(ii) promote the child's development; and

(iii) strengthen, preserve, and promote positive relationships between the child and the child's parents, family members and other people who are significant in the life of the child.

1. It is important that I consider the purposes and objects of the Act in conformity with section 34(1) and the Supports Rules noting that if one of the requirements in ss 34(1)(aa)-(f) is not satisfied, the support will not be funded under the NDIS.

1. The NDIS has Operational Guidelines in relation to reasonable and necessary supports in a participants plan. While the Tribunal is not bound by any policy set out in the Agency's Operational Guidelines in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)10 the Federal Court held that a Tribunal should consider relevant government policy which is not inconsistent with the provisions or objects of the legislation.

1. The Guidelines relevant to this review are the NDIS Reasonable and necessary supports

and Early Childhood Approach. The Early Childhood Approach NDIS Guidelines state:

Best practice not only considers broad early childhood intervention research, but also evidence relating to the needs of children with a specific diagnosis, such as autism spectrum disorder or cerebral palsy.11

1. Further the NDIS Operational Guidelines set out the mechanisms for how NDIS funding can be managed.12 There are three options:

1. Agency managed means that only NDIS registered providers can be used by participants. Registered Providers make claims for services delivered to participants directly through the NDIS Provider Portal against a participants plan. Registered NDIS Providers must charge in accordance with, and up to, the maximum price in the NDIS Pricing Arrangements and Price Limits.

10 [1979] AATA 179 (1979); 2 ALD 634.

11 NDIS Guidelines, Early childhood approach, ourguidelines.ndis.gov.au/early-childhood/early-childhood- approach.

12 NDIS Guidelines, ourguidelines.ndis.gov.au/your-plan-menu/your-plan/how-do-you-buy-ndis-supports- providers/how-much-will-we-pay-each-ndis-support.

1. Plan-managed participants receive funding to utilise a plan management service. Plan managers are provided with invoices and receipts for services the participant has received and are responsible for claiming against the participants plan funding. This option allows a participant to have the choice to use providers that are not registered with the NDIS. Plan management also allows participants to pay less than the prices listed in the NDIS Pricing Arrangements and Price Limits by negotiating with the non-registered services they choose to engage for their supports.

1. Self-managed participants pay for services either out of pocket or receive an invoice from a provider and then make their own claim in the NDIS Portal. The funding is then disbursed into their nominated bank account, usually within 24 hours. This option allows participants to use non-NDIS registered providers. Self-management give the choice to participants to pay more or pay less than the prices listed in the NDIS Pricing Arrangements and Price Limits.13

1. Children enrolled in the LLP have 27 hours per week direct therapy time, usually across 4 days a week. An example of the daily schedule is below:

Example daily schedule at LLP14

13 NDIS Self-Management Policy, www.ndis.gov.au/participants/using-your-plan/self-management/self- management-policy

Staff provide information to family about the daily session

1. In making my decision and pursuant to section 33(5)(a) of the NDIS Act I have considered VWJC's current plan goals:

• Develop and use effective communication skills.

• Increase his involvement in his daily self-care routines.

• Develop age-appropriate play skills and safety awareness.

• Develop fine and gross motor skills required to play and learn confidently and effectively.

• Express and regulate his emotions at an age-appropriate level.15

15 JTB, R1, NDIS Plan 3 March 2025 - 3 March 2026, p.1202-1204.

1. The Agency agrees that early intervention supports are of benefit to VWJC. The Agency contends that the requested hours of supports are not reasonable and necessary for the purposes of s34(1)(c), (d) and (e) of the NDIS Act.

1. The Agency agrees that the current plan should be varied to the extent that the following supports are reasonable and necessary for a 12-month plan.16

• 525 hours per year for ABA therapy delivered by a Therapy Assistant Level 2;

• 75 hours per year of Behaviour Consultation/Supervision delivered by an Allied Health Therapist;

• 6 hours per year for report writing at the Allied Health Therapist rate; and

• Existing core support replicated on a pro-rata basis for 12 months.

1. VWJC's mother and father both gave oral evidence at the hearing and called the following witnesses to give evidence and be cross-examined:
   • Speech Pathologist, Ms K Brown;

• Autism Partnership National Clinical Director, Ms K McKinnon; and

1. The Respondent called the following witnesses who gave evidence at the hearing, and were also cross-examined:
   • Paediatrician, Expert Specialist Dr D Pincus; and

16 JTB, S7, Respondents Revised Statement of Facts Issues and Contentions, dated 23 April 2025, p.1424.

1. VWJC's parents' oral evidence can be summarised as follows:

• Parents had a limited knowledge of ASD or early childhood intervention therapy prior to having VWJC.

• They have actively educated themselves regarding therapies and interventions, ensuring they can support VWJC to be the best he can be.

• VWJC displays stimming behaviours with head shaking, hand movements and toe movements when he is excited.

• VWJC displays cautious behaviours especially around people he is not familiar with, in crowds and around loud noises.

• VWJC comes from large families on both parents' sides, and they work hard to enable VWJC to participate in typical family life, to levels of his own comfortability.

• VWJC is not toilet trained, requiring full assistance with all daily living and self-care tasks.

• VWJC eats a very restricted diet, preferring beige foods.

• VWJC commenced fortnightly speech therapy in 2022. VWJC's parents explained that progress was minimal and disappointing. They described how the speech therapist spent the appointments talking with them regarding goals, in repetitive conversations, rather than providing direct therapy to VWJC.

• VWJC was enrolled in mainstream childcare 1 day a week from 21 April 2023 - 19 January 2024.
• VWJC was mostly non-verbal only making vocalisation noises.

• They described how VWJC experienced a fall at childcare which was not reported to them. VWJC was unable to explain he was hurt. VWJC's parents later found out he had fractured his wrist.

• VWJC's father described driving past the childcare centre on occasions seeing 'my child left unattended by himself in the yard while the teachers were all with the other children. And there's my child sitting there just staring at the traffic through a fence like he was a pet.17

• VWJC's parents started seeking a therapy provider for VWJC that offered intensive early intervention. VWJC's parents had no preference for one early intervention therapy model over another. They explained they were just seeking an early intervention service with a vacancy.

• LLP was the only centre that contacted VWJC's parents from their waitlist with a vacancy.

• In February 2024 VWJC began attending LLP. His parents have observed that VWJC has made significant gains since that time.

Fine motor: VWJC beginning to hold a pencil and starting to draw lines. He is also learning with the help of his father to navigate plugging in his iPad.

Gross motor: Starting to become more proficient in throwing a ball.

Expressive language: VWJC went from being mostly non-verbal to currently having approximately 200 words, including some two-word sentences.

• VWJC currently attends LLP 4 days a week and is cared for by his grandparents on the other weekday.

• VWJC's parents both attend LLP each week to undertake sessions with therapists regarding his progress and goals.

• VWJC's father states that was very sceptical of the LLP at first stating, 'so for the first few months I was keeping a very close eye on the programme and what they were doing with my child and what was their plan, because again, we're not ones to be wasteful. A few months in I started to notice some growth...his ability to communicate eye contact was the main one He was feeling more comfortable looking at us.18

• After receiving Dr Pincus' recommendations in November 2024 stating VWJC should also attend a kindy program, VWJC's parents put his name down on many waitlists for mainstream kindy programs and local childcares.

• VWJC's parents would like him to start formal schooling in the 2026 calendar year at an ASD specific local school. They are still in the process of confirming the exact details.

1. VWJC's parents also provided written submissions dated 30 January 2025, a weekly timetable dated September 2024, an updated written statement dated 6 February 2025, and a supplementary parent statement dated 19 February 2025.

1. In their statement dated 6 February 2025 VWJC's parents' state:

We are reaching out on behalf of our son [VWJC], who is currently 4 years old and has been diagnosed with Autism Spectrum Disorder (ASD) and Global Developmental Delay (GDD). These conditions profoundly affect his daily life, as he is non-verbal and requires assistance with basic tasks such as eating, brushing his teeth, bathing, and nappy changes as he is still in nappies. As a family, we have faced numerous challenges in securing the help [VWJC] requires from a young age. Thankfully, we were able to secure

a place for him at Autism Partnership, which has shown us significant progress. It was an emotional milestone for us when [VWJC] was finally able to say "mum" and "dad".

Through intensive ABA therapy, we have noticed improvements in [VWJC's] communication skills, albeit still limited. This progress has allowed us to guide him better and support his needs effectively. However, this journey has not been easy; the stress involved has taken a toll on our family, not to mention the financial strain. Before we found Autism Partnership, we tried several interventions for [VWJC]. Unfortunately, those efforts didn't yield the expected results. The process was lengthy, especially due to COVID-19 restrictions, which led to a long waitlist. At one point, we had applied to over 16 different places. In an attempt to provide a social environment, we enrolled [VWJC] in a local childcare centre. He attended 1 day per week from 21 April 2023 to 19 January 2024.

However, this was a traumatic experience for both him and us, as he was often left alone, labelled as "too hard" to handle. Ultimately, we had to pull him out, completely heartbroken by the situation.

[VWJC] deserves better, he deserves an environment where he will be helped, cared for. He does not deserve to be left behind because he has a diagnosis, he deserves a chance at a successful life just like all of us.19

1. VWJC's parents also discussed their NDIS plan management issues in their oral evidence. They explained from plan depletion in around October 2024, the Agency then changed the plan from 3 March 2025 onwards to Agency managed. This change has meant they have paid privately to send VWJC to LLP 4 days a week. VWJC's father gave oral evidence that he has taken on a second job working 70 hours a week to assist in continued financing for LLP.

1. Ms Brown, a speech pathologist was called by the Applicant to give oral evidence. She undertook an initial assessment of VWJC in May 2022 and three follow-up sessions in May 2022, June 2022 and one assessment session in August 2024. She has not assessed VWJC since 2024.

19 JTB, A5, Parents Supplementary Statement, dated 6 February 2025 p17.

1. Ms Brown provided two reports to the Tribunal. In her June 2022 report she writes VWJC is not able to respond to his name, identify or look at objects when requested, he cannot look at people when their names are said. She recommends:
   • Fortnightly sessions in the home environment for intensive speech pathology intervention;
   • Assessment and ongoing physiotherapy and occupational therapy, and
   • That his parents may wish to pursue intensive behavioural therapy as recommended by their paediatrician.

1. Her second report dated 23 August 2024 is a speech pathology assessment that identifies VWJC scoring in the very low range for expressive language and receptive language. She also identified VWJC as severely impaired for social/pragmatic language. Ms Brown notes VWJC has numerous repetitive behaviours and restricted ranges of interest.

1. Her oral evidence can be summarised as follows:

• VWJC presented in May 2022 with delays in his expressive, receptive language and social skills. By the August 2024 assessment she observed VWJC could spontaneously name objects in-clinic that were his familiar items of interest.

• By the age of 2 years children are usually combining words together, usually 2 to 3 words. By this age children usually will be able to use prepositions needed for their everyday life such as: up, down, in, on.

• She recommends ongoing speech therapy and is in support of VWJC continuing in LLP.

Ms McKinnon - Autism Partnerships National Clinical Director

1. Ms McKinnon is the National Clinical Director of Autism Partnerships. She co-authored two reports regarding VWJC that have been provided to the Tribunal dated 27 May 2024 and 31 March 2025, respectively. She is a qualified psychologist having worked in an ABA context for most of her career with post graduate studies in educational psychology and in the ABA framework.
2. The report dated 27 May 2024 signed by Ms McKinnon and VWJC's Senior Behaviour Consultant Ms Andrea Ratcliffe, summarises his progress in the first three months of the LLP as follows:

• Beginning to use spoken language to communicate, both to request and label things in his environment.
• Has developed the ability to sit and participate in learning activities.
• Has shown a strength in visual concepts.

1. The report also summarised VWJC's challenges as:

• Preferring things in a very particular way or on his terms.
• Restricted diet preferring to eat only a handful of foods and some of them only in certain locations.

1. The 31 March 2025 Standardised Development Assessment report co-written with Ms Andrea Radcliffe, is the most current assessment of VWJC at LLP. Ms McKinnon was asked to explain VWJC's first assessment in March 2024 and compare it with VWJC's assessment undertaken in March 2025.

1. Ms McKinnon explained that the first assessments were used to determine the VWJC's baseline skills when he first started the LLP. The 7 March 2024 Mullens results for VWJC showed that he scored very low for his visual reception, fine motor, receptive language, and expressive language. Similarly, his Vineland results were described as low in communication, daily living skills, socialisation, and motor skills.

1. From this initial assessment in 2024 Ms McKinnon concluded that VWJC required a comprehensive intensive intervention program focussed on explicit teaching and the breaking down of skills in a highly personalised manner for VWJC into smaller, achievable parts in order to learn.20
2. When looking at VWJC's assessment undertaken in March 2025, Ms McKinnon explained his percentile ranking in the communication domain had increased significantly. His motor

20 JTB, A15, Autism Partnership Progress Report, dated 27 May 2024 p71.

skills, daily living skills and socialisation domains stayed the same or had decreased slightly. Ms McKinnon explained that this meant he has experienced growth in these domains, but this is slower than seen in typically developing children. 21

1. Ms McKinnon was asked whether she supported regular speech and occupational therapy for VWJC. She agreed that a combination of speech therapy with ABA therapy, would enhance VWJC's development.22
2. During questioning by the Respondent Ms McKinnon was asked about the fee schedule for LLP. She described that some line items from the fee schedule would only be drawn down on if those services were provided to VWJC.23

The Respondent: In terms of the behavioural consultation travel 12 hours to home educational setting, community.

The Respondent: I haven't seen any evidence of, of a behavioural consultant coming to the home.

Ms McKinnon: Yeah, I agree with that. And I, I looked at that actually yesterday. So we would only draw down on that if we were using that.

Ms McKinnon: So as an example, if [VWJC] was going to Kinder and we were going out to visit Kinder or if we were coming home to spend time with [redacted]. But that hasn't been the service that we've been doing.

Ms McKinnon: I think it would be in there in case we did do that in the future.

1. Ms McKinnon also gave oral evidence which can be summarised as follows:

• She recommended the LLP after an initial intake assessment of VWJC, noting that his parents had tried other lower levels of intervention and were seeking higher intensity supports.

• LLP comprises of individual time, along with structured group time focussed on learning activities such as sitting alongside peers, learning turn taking and sharing tasks.

• There are around 8-12 other children on the same floor as VWJC at LLP. It is an open plan centre with side rooms and doors that remain open. The children undertake activities as part of the usual kinder or childcare social experiences, like farm incursions where farm animals come in, things like Mother's Day, Father's Day activities.

• LLP can be undertaken in different settings. It can be centre-based, home-based or can be undertaken in a daycare or kindergarten as the therapists can accompany the child.

Dr Pincus - paediatrician and expert specialist

1. Dr Pincus is an expert specialist and paediatrician. Dr Pincus participated in an online assessment with VWJC's parents on 8 November 2024. He also provided a report dated 11 November 2024 and gave oral evidence.
2. In his report he notes his qualifications as:

General Paediatrician on the Gold Coast and have worked in public and private practice for the past 30 years. I am also currently employed as the Medical Clinical Governance Adviser for Pindara Private Hospital and for John Flynn Private Hospital. I work as the National Medical Advisor to Ramsay Health Care Clinical Governance. I am appointed as a Clinical Adjunct Professor and sub- Dean at Bond University. My practice encompasses all aspects of general paediatrics, including children with complicated disorders requiring multidisciplinary management.24

1. At time of writing his report in 2024 Dr Pincus' view was VWJC should undertake mainstream kindergarten with supports two days per week, moving up to three days per week by the second half of 2025.

24 JTB, R3, Dr Pincus report dated 11 November 2024, p.1236.

1. Dr Pincus provided various research articles in relation to ABA and amount of therapy hours to the Tribunal. In Dr Pincus' opinion, the most authoritative study is Dr Micheal Sandbank's,25 where her 2024 study found no significant association between higher amounts of early intervention therapy hours with better outcomes or effects for children.
2. Dr Pincus' oral evidence can be summarised as follows:

• Time has moved on since meeting online with parents in 2024 and while he supported VWJC attending kindergarten for 2025, he notes its now midway through the 2025 year and that has not occurred.
  • He agrees with VWJC's diagnoses of ASD level 3 and GDD.
• He agrees that VWJC has prominent delays in his receptive and expressive language skills, and in his activities of daily living.
• He understood from VWJC's parents that his time at mainstream childcare was traumatic.
• He understood VWJC spends one third of his time at LLP in group settings, which he approves of as it will assist VWJC with transition to school.
• He noted that VWJC's parents reported he was more available to the outside world, paying better attention, and developing his communication skills since starting LLP.
• He is supportive of VWJC's parents' intention for VWJC to start at school in 2026.
• Given that time has moved on, he emphasises the importance of group therapy and opportunities for age-appropriate socialisation activities for VWJC.
• He is supportive of VWJC continuing LLP for two days a week for the remainder of 2025, along with VWJC undertaking other age-appropriate socialisation experiences.
• He recommends two days a week of LLP continued in conjunction with speech therapy, occurring weekly or at a minimum of fortnightly for the rest of 2025.
• He is supportive of occupational therapy occurring weekly or at a minimum of fortnightly as a priority in preparation for starting school.

25 JTB, A20, JAMA Paediatrics, Determining Associations between Intervention Amount and Outcomes for Young Autistic Children. A Meta-Analysis Sandbank et al. dated 24 June 2024, p116-127.

1. Dr Frazier was called by the Applicant to give oral evidence. Dr Frazier is a Professor of Psychology at John Carroll University in Ohio. I note in giving his evidence he provides no opinion on VWJC, all his opinions as expressed are regarding analyses of the research literature about early behavioural interventions and their effectiveness.

1. His evidence can be summarised as follows:
   • His most recent findings dated May 2025 are published in the Clinical Psychology Review Journal titled Characterising predictors of response to behavioural interventions for children with autism spectrum disorder and meta-analytic approach.26
   • His findings are that higher therapy hours/duration were associated with stronger outcomes for children with ASD.

• His view is when therapy intensity decreases, it risks a loss in momentum for a child's progress.

• He notes that broadly, children with ASD level 3 need more 1:1 intervention due to significant challenges with attention to limit their distractions.
• When asked to comment about Dr Sandbank's July 2024 research, Professor Frazier highlighted two weaknesses:
  • Selective sampling was used, the modelling did not account for IQ. When IQ is used it shows that higher intensity provides better outcomes; and
  • Sandbank's analysis did not study across early intervention types; therefore, it is statistically underpowered.

1. By the term 'IQ,' Dr Frazier clarified that he is referring to cognitive ability, meaning a child's capacity for processing and learning new information. He stated that when he undertook his

26 JTB, A16, Characterising predictors of response to behavioural interventions for children with autism spectrum disorder and meta analytic approach Frazier et al, dated 30 May 2025, p76-88.

re-analysis of Sandbank's dataset with IQ included the data showed significant associations between intervention quantity and better outcomes.

1. Dr Sandbank provided reports to the Tribunal and was also called by the Agency to give oral evidence. Dr Sandbank is an Assistant Professor at the Department of Occupational Science & Occupational Therapy, School of Medicine at the University of North Carolina. In giving her evidence, she provides no opinion on VWJC. Dr Sandbank's views relate to analyses of the research literature in respect of early behavioural interventions and effectiveness.

1. In her first report dated 21 June 2022 Dr Sandbank states:

It is my opinion that, when considered in total, the available clinical research is mixed in both quality and conclusions and does not satisfactorily establish that more intensive supports are unilaterally more effective than less intensive supports. Specifically, it does not establish that 27+ hours per week of early childhood intervention is unilaterally more effective than less intensive supports, such as 5 and 15 hours per week.27 [Tribunal emphasis added]

1. Dr Sandbank further states that the only high-quality study explicitly designed to directly test the potential association between intervention intensity and effectiveness, found that children who received 25 hours per week of early intervention did not exhibit greater progress over two years than children who received 15 hours per week.

1. In her second report dated 15 August 2022 she states:

The articles referred to in the second brief include a set of practice guidelines drawn from a systematic review of autism-relevant literature (Roberts & Prior, 2006) and a subsequent update (Prior & Roberts, 2011), one review of 5 meta-analyses of Early Intensive Behavioural Intervention (EIBI; Reichow, 2012), and one position paper about the nature of progressive ABA (Leaf and colleagues, 2016). I have carefully considered these articles

27 Supplementary T Documents, Sandbank Report, dated 21 June 2022, p 2489.

and have concluded that they do not lead me to change my opinion expressed in my prior report.28

1. Her oral evidence can be summarised as follows:

• When studies control the variables like design and intervention type, the findings are that early intervention outcomes do not improve as intervention hours are increased.

• Her 2024 study systematically compared the same intervention type offered at different amounts.

• With increasing therapy hours per week, a child loses opportunities to engage in other activities that are important to their development, such as activities of interest and spending time with family.

• Consideration should be given not only the benefit of additional therapy hours for a child, but the potential loss to a child if they undertake many therapy hours.

• When Dr Frazier's comments were put to Dr Sandbank, she stated that:
  • - Her study was republished after his claims were made, these findings still did not support Frazier's' claims; and
  • - Because she controlled for early intervention types, they increased the power of the data by reducing its variance.

1. Dr Sandbank confirmed she had reviewed Professor Frazier's latest May 2025 meta- analysis and expressed the view that their analytic data sets are very different. Dr Sandbank explains that Frazier's May 2025 study reports a positive but small average effect and compares across many types of early intervention, limiting confidence in his findings as qualitatively they are all quite different.29

28 Supplementary T Documents, Dr Sandbank report dated 15 August 2022 p 2879.

Professionals who supplied written reports Dr Marks, paediatrician

1. Dr Marks is VWJC's paediatrician, and he provided five reports to the Tribunal.

1. His 16 December 2021 report authored when VWJC was around 12 months old, notes VWJC's parents reporting unusual movements, social and language delays. Dr Marks recommended trying early intervention services including speech pathology and occupational therapy. He also provided a referral for some audiology testing.

1. In his 27 April 2022 report authored when VWJC was 15 months, his parents reported slight improvements to his development but that he remained globally delayed. Dr Marks agrees noting that VWJC continues to:
   • use repetitive hand movements;

• be non-verbal with extremely limited eye-contact,

• not display any signs of cooperative or interactive play.

1. Dr Marks recommends intensive early intervention services, including regular speech therapy and occupational therapy. Dr Marks stated ABA could be helpful in the alternative, noting the cost of ABA therapy can be high.

1. In his report dated 28 May 2024 Dr Marks states VWJC is reported to have made slow gains with verbal and nonverbal communication. He has restricted eating but has made some progress with ABA therapy. Dr Marks stated that he was supportive of the family receiving funding for ongoing intensive therapy through LLP.

1. In his report dated 30 January 2025 Dr Marks confirms VWJC's diagnoses of GDD and ASD level 3. He states that VWJC requires intensive early intervention. He confirms VWJC is making gains with LLP noting:
   • improved speech and language skills gains noted in the last 6 months.

• more verbalisation, some echolalia, stimming behaviours continue.

• still experiencing struggles with making independent choices without guidance.'

• continued restricted eating habits, eating a beige diet and only at home, recommends nutritional support.

1. Overall Dr Marks states he is supportive of continuing at LLP to address VWJC's interaction, engagement and independent decision making.

1. Dr Abraham's letter dated 17 February 2025 provided her professional support for capacity building supports such as speech therapy, occupational therapy, physiotherapy, and psychology. She also supported VWJC's continuation at the LLP.

Matthew Butera, psychologist and Chris Allan, clinical psychologist

1. Mr Butera, clinical psychologist registrar and his supervisor Mr Allen clinical psychologist, provided a Diagnostic Assessment Report dated 3 September 2024. This report provided VWJC's diagnosis of ASD Level 3. In the report it is recommended that VWJC continue with his interventions at LLP as he is slowly benefiting from his daily interactions there.30

1. The tender bundle included a significant amount of published literature and research material regarding early interventions for children with ASD. I have considered all of this material and will refer to what I consider is the relevant material in my determination of the matter.

(a) The ECIA National Guidelines Best Practice in Early Childhood Intervention dated February 2016 (ECIA Guidelines 2016). The Guidelines emphasise that early intervention approaches need to be family-centred, collaborative ones that recognise children learn and develop best in natural, everyday settings. The

Guidelines highlight the importance of building capacity within families and professionals, including early childhood educators to promote inclusion and maximise learning.

• The 2016 NDIA funded research project report by Roberts and Williams titled Autism Spectrum Disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers (Roberts and Williams-2016) evaluated the research available at the time the scheme was beginning to roll-out across Australia.31 Relevant commentary included that children with a diagnosis of Autism should receive 20 hours per week of early intervention. The report states that:

Reviews and guidelines that provide evidence about intensity (hours per week) and duration of interventions report that comprehensive programs that have been evaluated and shown to be effective are most commonly provided for between 15 and 25 hours a week, suggesting a midpoint of 20 hours, and for at least 1 year. [Tribunal emphasis]

• The report indicates that these 20 hours could be across a range of both therapy and non-therapy environments, including in-home routine-based support for a child in natural everyday settings.

(b) The Council of Autism Service Providers ABA Guidelines: Applied Behaviour Analysis Treatment of Autism Spectrum Disorder dated 2020 (CASP Guidelines 2020) are practice guidelines that emphasise ongoing and frequent direct assessments and analysis of treatment plans for children. These American guidelines explain the supervision infrastructure and its importance within the ABA system.

(c) The Australian Autism Cooperative Research Centre 2020 (Autism CRC) review was commissioned by the NDIA and involved a review of early intervention approaches for children with Autism aged up to 12 years. The review found no single intervention improves developmental outcomes for all children on the spectrum. The

31 Roberts, J., & Williams, K. J. (2016). Autism spectrum disorder: Evidence-based/evidence-informed good practice for supports provided to preschool children, their families and carers.

evidence showed both parent-led and peer-led interventions have positive effects on children and families. The review explains when parents were involved in the intervention, the outcomes were sometimes greater than interventions delivered by practitioners or educators alone.32

(d) Autism CRC published the Australian National Guideline on 6 December 2022 titled National guidelines for supporting the learning, participation, and wellbeing of autistic children and their families in Australia (Autism CRC Guideline). The Guideline was approved by the CEO of the Australian National Health and Medical Research Council. The Guideline provides recommendations around support to children aged 12 years or younger with Autism. Relevantly recommendation 56 provides as follows:

Practitioners should work in partnership with the child and family to determine the delivery amount and duration that will likely lead to the most meaningful and sustained increase in the child's learning, participation, and wellbeing.

• 56.1 The amount and duration of support provision should be tailored to the individual needs of the child and family. This includes consideration of the frequency, length, and time of day of support sessions, and variations in support needs over time.

• 56.2 When recommending an amount and duration of support, practitioners should do so based on a decision-making framework that considers:

Plausibility- there is a plausible reason for the child and family to receive the support in a given amount and duration, and evidence to support this reason, as well as its safety.

Practicality - it is practical for the child and family to receive the support in a given amount and duration when considering the child and family's schedule, and the social and emotional wellbeing and support of the family and the financial resources available to them.

32 Umbrella review summary | Autism CRC

Desirability - it is desirable to the child and family to receive the support in a given amount and duration when considering the child and family's culture and customs, the parents' views on childrearing and child development, and the priority of these supports within a hierarchy of their needs.

Defensibility - there is a clear rationale for why receiving the support in a given amount and duration is preferred over alternative options.

• 56.3 Practitioners should inform parents that there is no set number of hours per week of practitioner delivered child-directed supports that leads to the best outcomes for all children.

• 56.4 Practitioners should be aware that research evidence does not support the concept that supports delivered in greater amounts consistently lead to better child and family outcomes.

• 56.5 The amount and duration of support provision should take into consideration the child's right to education; their right to relax, play and choose to join in a wide range of leisure activities, and their individual preferences for each.

• 56.6 The amount and duration of support provision should not impinge upon the natural roles of children, parents, siblings, and other family members.

• 56.7 Parents should be given options regarding the amount and duration of supports that their child/family receives.33

(e) The December 2021 article titled, an evidence-based framework for determining the optimal amount of intervention for autistic children by Trembath et al (Trembath 2021) reviewed current guidelines and the evidence from the Autism CRC 2020 review. The key messages were that the research evidence is inconsistent and scarce about the amount of intervention children should receive. Trembath 2021 noted that recommendations should be individualised within an evidence-based practice framework. Trembath 2021 noted that clinicians should consider whether

33 JTB, A30, CRC Guidelines, dated December 2022 p459.

the amount of intervention is scientifically plausible, practical to deliver, desired by the child and family, and defensible when looking at available options.34

(f) In 2022, Trembath subsequently published non-pharmacological interventions for autistic children - an Umbrella Review (Trembath 2022). The key messages were that evidence shows positive therapeutic effects for some, but not all, interventions. This review found that no single intervention had a positive effect for all child and family outcomes. It found also that the influence of child and delivery characteristics on effects was unclear.35

(g) In February 2023 Synergy and the AEIOU Foundation36 published a report titled, Cost-benefit analysis of intensive early intervention for children with autism (Synergy AEIOU 2023). This report provides a detailed assessment of data collected by AEIOU and its key message is that early intervention is crucial for improving outcomes for children with Autism.

(h) In June 2024 Sandbank et al publish an article titled, Determining Associations between Intervention Amount and Outcomes for Young Autistic Children a Meta- Analysis, (Sandbank June 2024). This meta-analysis included144 studies involving 9038 children with autism. Findings were that intervention effects do not increase with high amounts of intervention. The conclusion of the meta-analysis was that health professionals recommending intervention hours should be advised that there is little robust evidence supporting the provision of intensive intervention therapy hours 20+ per week.37

(i) In September 2024 McKinnon, Cihon and McEeachin published A programmatic description of an early, intensive behavioural intervention program in Australia (McKinnon et al) (McKinnon 2024). This related to a study from 2011 to 2022 on 154 children with autism. Noting that there was no control group as a comparison,

34 JTB, A25, Article - An evidence-based framework for determining the optimal amount of intervention for autistic children, Trembath et al dated December 2021, p238.

35 JTB, A24, Article - Non-pharmacological interventions for autistic children - an Umbrella Review, Trembath et al, 2022 p217.

36 AEIOU Foundation for Children with Autism, an Australian therapy provider for children aged 2-6.

37 Article - Determining Associations between Intervention Amount and Outcomes for Young Autistic Children a Meta- Analysis, Sandbank et al June 2024, p116.

they found that children who received 27 hours per week of intervention showed significant gains on standardised cognitive and adaptive behaviour measures during an average of one year of intervention. They found 84% of children accelerated in their rate of learning during intervention, with 52% more than doubling their rate of learning. Overall, intake cognitive ability did not predict improvement.38

(j) In October 2024, Vivanti published Autism Early Intervention - Progress, Steps Backward, and the Reconciliation of Conflicting Narratives (Vivanti 2024). Vivanti reviewed recent research on interventions, services and supports for children with Autism. They observed an increase in the quantity and rigor of intervention science. They also observed that there is a decrease in research about children with Autism who also have profound intellectual disabilities with minimal to no oral communication, and who require full assistance with daily living activities.39

(k) In November 2024 Frazier et al published Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism (Frazier 2024) claiming that selective sampling influenced Sandbank's primary study conclusion as IQ was not added as a covariant. Frazier et. al state that intervention dosage does have a positive effect and must be factored into the design, evaluation, and implementation of treatment programs for individuals with autism spectrum disorder.40

(l) In November 2024 Sandbank, and Putsejovsky reply to Frazier, et. al in JAMA Paediatrics titled Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism - Reply (Sandbank and Putsejovsky 2024_)._ Sandbank and Putsejovsky 2024 contend that Frazier 2024 have pooled their data across intervention types, leading to results that have less statistical power.41

38 JTB, A19, A programmatic description of an early, intensive behavioural intervention program in Australia,

39 JTB, A18, Article - Autism Early Intervention - Progress, Steps Backward, and the Reconciliation of Conflicting Narratives, 25 October 2024, p91.

40 JTB, A21, Article - Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism - by Thomas W. Frazier, PhD; Lacey Chetcuti, PhD; Mirko Uljarevic, MD, PhD, May 2024, p127.

41 JTB, A22, Article - Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism by Thomas W. Frazier, PhD; Lacey Chetcuti, PhD; Mirko Uljarevic, MD, PhD - reply by Micheal Sandbank, PhD; James E. Putsejovsky, PhD May 2024, p128.

(m) The March 2025 the American Council of Autism Service Providers paper titled Evidence about ABA Treatment for Young Children with Autism, (CASP 2025) summarised evidence about ABA treatment. I note that this paper is a companion to the American CASP's ABA Practice Guidelines. The key findings are that young children with Autism benefit more from high-intensity ABA than low/intermediate intensities or other forms of treatment. CASP 2025 also provides benchmarks to use in evaluating ABA treatment outcomes delivered to young children with Autism. They categorise 6-15 hours as low to mid intensity and 25-40 hours a week as high intensity. Overall, the report states children should receive an average of 30-40 hours per week of direct intervention for two or more years citing Eldevik et al 2010.

(n) In May 2025, Frazier and Chetcuti published Characterizing predictors of response to behavioural interventions for children with autism spectrum disorder: A meta- analytic approach (Frazier May 2025). Their meta-analysis analysed 95 studies that took place between 1987 and 2024. They found that greater total hours and longer duration of intervention were predictive of stronger post-intervention outcomes for children with Autism. They also found that higher cognitive, language, and adaptive function with fewer symptomology features predicted stronger outcomes. 42

Whether the therapy is necessary to address the needs arising from the impairment in relation to which VWJC met the disability requirements: section 34(1(aa) NDIS Act

1. VWJC met access via the early intervention pathway for impairments arising from his GDD and ASD level 3 diagnoses.

1. In relation to VWJC's needs Ms Brown the speech pathologist relevantly wrote in her assessment report that:

[VWJC] requires intensive adult assistance to physically and verbally support him with his daily routines and to engage him in a range of preferred and non-preferred activities.

Without adult support, he will not willingly engage and will prefer to wander which is not

42 JTB, A16, Article - Characterizing predictors of response to behavioural interventions for children with autism spectrum disorder: A meta-analytic approach, Chetcuti, Frazier et al, dated May 2025 p76.

supportive for his development. [VWJC] will benefit from an intensive and structured program to support his learning. [VWJC] requires intensive early intervention to support his overall development. I support his continued participation in intensive intervention through Autism Partnership's Little Learners program.43

1. The Agency agrees with the Applicant that s34(1)(aa) is satisfied. On the evidence provided I am also satisfied that the early intervention therapy meets s34(1)(aa) as it is necessary to address VWJC's sensory and cognitive impairments arising from which VWJC has met the disability requirements.

Whether the funding will assist the participant to pursue the goals, objectives, and aspirations in the VWJC's statement of goals and aspirations: s 34(1)(a) of the NDIS Act

1. The parties agree early childhood intervention supports are necessary for VWJC to achieve his goals. The parties also agree that early intervention supports have specific significance for VWJC to assist him in learning skills for participating in socially and economically.

1. The lived experience of VWJC's parents regarding the gains that VWJC has made satisfies me that his experience at LLP has been beneficial and will assist him in the second half of 2025 to pursue his stated goals, objectives, and aspirations in preparing for his formal schooling to start in 2026.

1. I am satisfied that there is sufficient probative evidence before the Tribunal that intensive early intervention support will assist in pursuit of VWJC's current plan goals. The criterion in s 34(1)(a) is met.

Whether the support will assist the participant to undertake activities to facilitate the VWJC's social and economic participation: s 34(1)(b) of the NDIS Act

1. The totality of evidence provided around improvements in VWJC's milestones, behaviour and skills satisfies me that early childhood intervention and behavioural intervention have aided him in his communication and social interaction to further develop his skills.

43 JTB, A11, Ms Brown Report, dated 23 August 2024, p57.

1. I am also persuaded by his parents lived experience evidence that early childhood intervention through LL has helped him start to acquire life skills. On the evidence it would seem likely that as skills further develop, they should form the basis of facilitating his social and/or economic participation. I am satisfied that s 34(1)(b) is met.

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: s 34(1)(c) of the NDIS Act

1. Rule 3.1 of the Support Rules set out the matters to be considered in deciding whether the applicant's requested supports 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. The matters relevant to this application are:

...(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)...

1. It is impractical to deliberate this criteria in isolation from Support Rules 3.2 and 3.3 around effective and beneficial considerations, hence the overlap in this regard.
2. In VWJC's Progress Report from AP LLP under reasonable and necessary criteria, value for money it states:

An overarching goal of this intervention is to reduce [VWJC's] support needs over time and prevent his reliance on more costly supports in the future. Cost-benefit analyses consistently demonstrate the return on investment when children participate in EIBI programs. Given the possibility of a greatly reduced need for funding in later life, EIBI is

considered value for money. See Jacobson, Mulick & Green (1998) and the Synergies report (2013) for relevant cost-benefit analyses.44

1. I have reviewed the Synergy Report 2013 and note their assessment data is over 10 years old from the AEIOU.I find the reliance on the 27-year-old Jacobsen, Mulick & Green findings to be out-dated_._ The significant resource implications of providing the hours of requested therapy and more specifically the need to ensure the financial sustainability of the NDIS means the Tribunal must be satisfied on the value for money criterion.

1. I note VWJC's parents' oral evidence that LLP was the only program that made contact with them from their waitlist, out of all the centres they applied. I am satisfied that for VWJC's parents LLP was the only way to respond to VWJC's need for intensive early intervention supports.

1. The Agency contends that LLP at $171,285.54 per year does not represent value for money. The Agency states that the evidence does not support that the requested supports 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. Their Statement of Facts, Issues and Contentions asserts:

The Respondent respects that parents have a right to choose and pay for the providers that they consider best meet their needs. However, where funds are to be expended under government programs, subjective parental preference must be attenuated by objective policy (including value for money) considerations.45

1. In looking to comparable supports that could potentially achieve the same outcomes at a substantially lower cost, the option of kindergartens or daycares were discussed throughout the hearing as a result of Dr Pincus' November 2024 recommendations.

1. VWJC's parents gave evidence that following receipt of Dr Pincus' recommendations they reached out to kindergartens, daycares, other centres and are still waitlisted. They are

45 JTB, S3, Respondent's SFIC, dated 17 February 2025, p1362.

pragmatic in their view that with only 6 months left of 2025, comparable support for VWJC is not likely to become available.

1. I accept VWJC's parents have undertaken to find alternative comparable support that could achieve the same outcomes for VWJC. I also accept VWJC's parents forthright and intimate oral evidence regarding their son's need for structure and his immense aversion to change in his routine. The plan is to start school in January 2026 and this plan is supported by the professionals such as Dr Pincus, Ms McKinnon, and Ms Brown.

1. I accept Ms Brown's evidence as I find it was helpful and sincere around VWJC's need for weekly or fortnightly speech therapy. To the extent of her recommendations more broadly, I exercise caution, given that she did not know intimate details regarding VWJC's progress at LLP and the specific details of program intensity, having not assessed him since 2024.

1. I accept on the evidence that there are no comparable early intervention supports that could achieve the same outcomes for VWJC.

1. The basis for the increase in supports is on observed improvements by VWJC's parents, educators, and treaters after a period of intensive therapy of 27 hours a week direct therapy at LLP. Overall, it is difficult to be satisfied that these observed improvements are due to the intensity of therapy hours or whether they are part of VWJC's developmental growth and the extensive support he receives from his parents and grandparents.

1. I accept that on VWJC's Standardised Assessment at the LLP when compared with the previous year's assessment, he has increased in the communication domain. However, in his other domains on the evidence, his progress has been conservative.

1. I accept on the evidence that Ms McKinnon met with VWJC and his parents for the intake assessment and noted that his parents were seeking more intensive supports. Ms McKinnon's recommendation provided her clinical opinion that VWJC requires 25-30 hours a week at the LLP. Ms McKinnon's recommendation of hours was based on her clinical reasoning and judgment factoring in parental preferences and VWJC's individual

circumstances. I balance this clinical assessment with the research and published guidance about whether the 27 hours a week is likely to improve VWJC's life stage outcomes.

1. In taking into consideration VWJC's individual circumstances, it is clear he has a large life change on the horizon in 2026 with beginning his schooling. Noting the evidence about VWJC it would be beneficial for him to continue to have the structure, consistency, and safety in the predictability of his environment and routines at LL as he increases his skills in the last half of 2025.

1. VWJC's case is founded on observed improvements after a period of intensive application of early intervention therapy through the LLP. The evidence of Dr Sandbank is that the research does not support the proposition that 20+ hours are more effective than 10 or 15 hours. The relevant body of research evidence is inconclusive in determining whether individual gains are derived from a child's age, development or from different early behavioural intervention types.

1. The opinions of Ms McKinnon, Dr Marks, and Ms Brown about the benefit of the 27 hours of intervention appear difficult to reconcile and maintain in the face of Dr Sandbank's research and the approved, published Australian CRC guidelines.

Likely to reduce funding of supports in long term, will increase independence

1. While I am satisfied that generally VWJC's participation in LLP is beneficial, the heart of the issue is whether the 27 hours a week direct intervention vs a smaller quantum of hours, will provide greater benefits to VWJC.
2. The overall opinion held by Dr Pincus as outlined in his 11 November 2024 report is:

a smaller quantum is likely to be as effective as a larger quantum of such therapy and avoid risks or harm to the applicant. It has often been my experience as a paediatrician that the child does as well with five or 10 hours per week of ABA therapy as they do with greater than 15 or 20 hours per week.

1. Dr Pincus recommends 10-12 hours of direct early intervention a week, plus one hour of speech therapy and one hour of occupational therapy per week. With VWJC attending school next year and considering the literature review, I agree with the opinion of Dr Pincus

that 12 hours a week direct therapy represents value for money over the requested 27 hours per week. I will have more to say about the literature review in the next criterion.

1. I note that on the evidence before me, the focus has been on undertaking the 27 hours of direct therapy in-clinic four days a week. This choice has been prioritised over other capacity building therapies like weekly speech and occupational therapy, that in my view on this evidence are likely to be beneficial in getting VWJC ready for schooling.

1. While I am satisfied generally that VWJC's participation in LLP is likely to reduce the cost of funding of supports for him in the long-term, I have not been satisfied on the evidence that 27 hours a week will provide greater benefits to VWJC.

1. The requirement of value for money in s 34(1)(c) has not been met.

Whether the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice: s 34(1)(d) of the NDIS Act

1. Consideration of whether LLP at 27 hours a week direct therapy will be, or will likely to be, effective and beneficial for VWJC having regard to current good practice raises the operation of rules 3.2 and 3.3 of the NDIS Rules. They provide as follows:

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 referred 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.

1. The Tribunal is required to be positively satisfied that section 34(1)(d) is established on the evidence.46

46 National Disability Insurance Agency v WRMF [2020] FCAFC 79 AT [201]; Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 at [68].

1. Recommendation 56 of the Guideline reflects current best practice in Australia and states that the intensity of a child's therapy should be determined in partnership by their treating practitioners, their parents, and families. I am persuaded particularly by Recommendation

56.3 and 56.4 in the Guideline about the current state of evidence and good practice that relevantly states:

56.3 Practitioners should inform parents that there is no set number of hours per week of practitioner delivered child-directed supports that leads to the best outcomes for all children.

56.4 Practitioners should be aware that research evidence does not support the concept that supports delivered in greater amounts consistently lead to better child and family outcomes. [Tribunal emphasis]

1. The Respondent queried VWJC's parents and Ms McKinnon about the results of VWJC's Vineland Adaptive Behaviour scores. The Respondent contends that while the results show that he has increased his percentile ranking in the communication domain, he has not progressed in his motor skills domain and has dropped in daily living skills and socialisation domains.
2. In her oral evidence Ms McKinnon explained the results to mean, VWJC's progress as compared with typically developing children and that and when VWJC's scores decrease it can still indicate growth but that it is slower than typically developing children.

1. Regarding his scores in the Standard Developmental Assessments, VWJC's father explained this assessment was undertaken during a disruptive period where his main two therapists left, and he had two others that he had only occasionally worked with takeover. VWJC's father explained that for a good 3 weeks this abrupt change threw him for a sixer, and it took a little while to draw him back.47
2. This may give some cause for concern, reflecting the difficulties that can arise when key worker relationships are withdrawn or cannot be sustained or generalised to others. VWJC aim is to be able to generalise his skills out of the LLP clinic context into his naturalistic environments.

1. I accept VWJC's parents lived experience evidence, as understandably they want the best for their child. I am satisfied that the balance of opinions suggest that LLP should be considered effective and beneficial for VWJC. I consider there is consensus between Dr Pincus, Dr Marks, and Ms McKinnon that VWJC is progressing in the communication domain.

1. The evidence of the expert witnesses, academics Dr Frazier and Dr Sandbank was cogent, detailed, and credible. Their expert opinions and the thorough research they rely on, allowed me to be comprehensively informed of the past literature and the current position on outcomes regarding intensity levels for children with Autism.

1. While I do not consider that some of the older research and guidelines have no relevance, I have placed significant weight on the body of research into efficacy of early intervention supports for children with Autism from 2020 to current. It is my view that this period of research has current robust evidence as to the type and intensity of interventions that are likely to be most effective in supporting children with Autism.

1. Frazier's May 2025 article regarding his meta-analysis results indicated that stronger outcomes were observed across intervention approaches for children with higher cognitive, language, and other developmental abilities and greater adaptive functioning. His research shows interventions of longer duration and greater total hours were associated with stronger post-intervention outcomes. He states the type of intervention, method of delivery, and the age of the child at onset of intervention did not significantly predict the strength of post- intervention outcomes.

1. Conversely Dr Sandbank says that the relevance of these findings does not support that intervention effects increase with increasing amounts of intervention. This is important as there are methodical difficulties in different approaches of analysing and comparing data.

1. Dr Sandbank stated she has analysed Frazier's May 2025 meta-analysis and when questioned, she summited that:

...what I found was very interesting is that in their supplementary to materials in Table S8, you can look at the estimate for dosage and the estimate for the predictive effect of dosage

when controlling for all of these different adjusted for all of these methodological issues that were found to significantly moderate or influence effects is only .135.

And the confidence interval around that correlation extends from -0.24 to .293, which means that that confidence interval includes 0, which means the true effect of that correlation could actually be zero.

1. Her conclusions of Frazier's May 2025 meta-analysis are that when looking across evidence broadly, it becomes easier to find indications which suggest an effect of intensity. Conversely when focus is restricted to high quality evidence that controls for variables such as study design and like intervention type, the evidence diminishes and limits confidence in the idea that dosage intensity is driving effects.

1. The Frazier 2025 meta-analysis encompasses a wide array of studies differing in intervention type, participant characteristics and outcome measures. I understand this meta-analysis as focussing on the significance of child-specific predictors to determine the success of behavioural interventions. I find there is limited consideration of environmental and contextual factors like family dynamics or socio-economic status which play a pivotal role in intervention outcomes. Further, I find his positive findings around the estimate effect for positive dosage were very small. Because of this I have reached the opinion that standardising outcome measures is crucial for reaching reliable conclusions, and I give less weight to his overall conclusions.

1. I prefer Dr Sandbank's evidence that intervention intensity does not indicate that dosage in excess of 15 hours per week achieves improved outcomes when compared with outcomes achieved from 5-15 hours a week. I ultimately prefer Dr Sandbank's evidence as it aligns with the approved Australian Guidelines that the evidence does not support therapy delivered in greater amounts consistently leads to better outcomes.

1. On this point Dr Pincus' oral and written evidence also aligns with the Australian Guidelines that state a child would make no greater progress on 27 hours a week than with a lesser amount.

While I am satisfied that VWJC has made progress while receiving support at LLP, I am not convinced on the evidence that 27 hours a week as the framework, has facilitated his growth in key areas of development. In order to ensure the financial sustainability of the

NDIS, I note that funded supports should be to a level that is consistent with available research and medical opinion, taking into account the individual circumstances of the participant.

1. I prefer Dr Pincus' position that 12 hours a week of intensive early intervention therapy, delivered directly to VWJC in 1:1 or group sessions is reasonable and necessary.

1. On the totality of the evidence, I am not satisfied that 27 hours per week at LLP will be effective and beneficial for VWJC. As the Tribunal must be satisfied of all of the six requirements in ss 34(1)(aa)-(f), I find that 27 hours of direct therapy per week is not a reasonable and necessary support for VWJC.
2. As this 12 hours a week is less than the 27 hour per week sought by VWJC's parents, it is acknowledged that they face a choice of whether to make up the shortfall and continue to send VWJC to LLP, or to provide care when he is not attending the program. The NDIS is not intended to replace what is reasonably expected of parental care and support for children under schedule 2 item 15(b) of the National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024.

1. I note LLP operates from a 50-week year from their fee schedule. I refer to the Respondents closing oral submissions that clarified they also calculated their position in this matter off of a 50-week year.48 I note this departure from usual NDIS guidelines that work from therapy supports being based around a 48-week year approach. I listened to the parties agree on a 9-month plan, or 40 weeks approach during the final hearing day. I have considered their approach, and I am satisfied to base my decision on a plan duration of 40 weeks.

1. The Respondent contends in their Statement of Facts, Issues and Contentions (SFIC) that the following supports are reasonable and necessary:

• 75 hours per year of Behaviour Consultation/Supervision delivered by an Allied Health Therapist;

• 6 hours per year for report writing at the Allied Health Therapist rate; and

1. Conversely the Applicant refers to the LLP fee schedule contending these supports are reasonable and necessary:

• 6 hours/week of Small-Group Behaviour Therapy (1:2) for 50 weeks;

• 3.5 hours/week of Behaviour Consultation for 50 weeks;

• Behaviour Consultation travel of 12 hours to home/educational setting/community (1 visit per month), for 50 weeks

• 1.5-hour case consultation/fortnight for Behaviour Therapists (4.5 hrs/fortnight), for 25 weeks

• Non-face-to-face support - activities are part of delivering support items 1 and 2, occurring prior to and after each daily session (4 hours/week), for 50 weeks

• 3.5 hours of Standardised Assessment with a Speech Pathologist

• 8.5 hours of Standardised Assessments with a Psychologist

• 6 hours for NDIS Progress Report from Behaviour Consultant & Speech Pathologist

1. I agree with the Agency's closing oral submissions that behaviour consultation, behaviour therapy supervision, the report writing, with speech and occupational therapy are all supports that will benefit VWJC in his preparation for formal schooling in 2026.
2. I was not persuaded by the evidence of Ms McKinnon where she explained that the provider travel of 12 hours from the fee schedule was not applicable for VWJC. This evidence goes some way to establishing LLP have provided VWJC a fee schedule with supports listed that may not be utilised or applicable to his circumstances, versus individualised support.

1. I note the Respondent's position in their SFIC differs from their closing submissions in that the SCIF mentions fortnightly speech and monthly occupational therapy. I am satisfied that speech therapy 1 hour per week and occupational therapy 1 hour per fortnight for VWJC is reasonable and necessary in this lead up to formal schooling.

1. At the final day of the hearing parties helpfully had the chance to discuss the plan management issues.

1. Regarding plan management, the Respondent confirmed the 3 March 2025 will be varied to plan management, so funds can be accessed for LLP. Practically, this means VWJC's parents will need to register with a plan manager and undertake the administrative steps in setting up plan management.

1. It is my view that the most sensible, practical, and efficient decision then is that I maintain the funding as plan management in the new plan.

1. I turn now to the expenses incurred by VWJC's parents after the 3 March 2025 plan was approved by the NDIS as Agency managed.

1. I am of the view that a reimbursement order does not form part of the Tribunal's jurisdiction, as decisions regarding payments are not reviewable decisions under the NDIS Act. On the evidence before me, I do not consider this specific request as a strict reimbursement application.

1. In XXWC by his mother and National Disability Insurance Agency [2020] AATA 923, XXWC's mother sought an order that the Agency reimburse the costs of early intensive

behavioural intervention supports that the Tribunal held had met the reasonable and necessary criteria. The Deputy President decided she could not make the order explaining:

There is nothing in the scope of the decision that must be made or in the matters, to which regard must be had, that deals with payment of supports approved in a statement of participant supports. That means that payment is not a matter within the scope of the Tribunal's power to review. I would also note that decisions about payment are not specified as reviewable decisions in s 99 of the NDIS Act. As I cannot review any decisions about payment, I have no power to order that any amount of XXWC's parents' expenditure be reimbursed. That is not to say that the Agency itself does not have power to reimburse XXWC's parents for monies they have expended on EIBI but what it requires to authorise reimbursement is a matter for it and its auditors.49

1. In Member Barker's decision in PBZB and National Disability Insurance Agency50 states:

Although the Tribunal cannot order reimbursement, as appears understood and acknowledged by the parties, the Tribunal does have power to determine that a support is reasonable and necessary in any SOPS it has jurisdiction to review, including a past SOPS. Pursuant to s 39 of the [NDIS] Act, the Agency must comply with the SOPS in a plan. Accordingly, if the Tribunal finds a support is reasonable and necessary, and a participant can sufficiently demonstrate that they have expended personal funds relating to the acquisition of that support, then the Agency is required to reimburse that participant (RTRH and National Disability Insurance Agency [2022] AATA 205, [163]).

1. I am not bound by these decisions however I do agree with their methodology in that while the Tribunal does not have jurisdiction to order reimbursements, I can make a finding that the Respondent is to comply with a Statement of Participants Supports in a plan.51

49 XXWC by his mother and National Disability Insurance Agency [2020] AATA 923 at 121-124.

50 [2023] AATA 3385 (20 October 2023) at 37.

1. In my view it follows that VWJC's parents should be able to manually claim the reasonable and necessary therapy hours for LLP from the 3 March 2025 SOPS, once the funding becomes plan managed. This decision is confined to funding from 3 March 2025 until the date the new SOPS begins, and only at the weekly hours considered by the Agency to be reasonable and necessary in that plan period.

1. I wish to make two observations regarding this matter, first that the discourse surrounding ABA therapy is undoubtably polarising, and secondly that the external reviews process can cause detriment to the family and their relationship with the NDIA. I note the parents and child remain the constant in this relationship with the Agency, while the staff themselves will rotate and change. For matters regarding these very young children, the process should be prioritised and undertaken as expediently as possible to sustain and safeguard this significant relationship.

1. I find section 34(1)(c) and (d) are not satisfied in relation to the supports requested, and as these are cumulative it is not necessary for me to consider any further section 34 criterion. I find that 27 hours of direct early intervention support a week is not reasonable and necessary.

1. I agree with the opinion of Dr Pincus and the Respondent in their closing submissions, that 12 hours per week for direct early intervention support will be or is likely to be effective and beneficial for VWJC and represents current good practice in Australia.

The Tribunal pursuant to section 105(c)(ii) of the Administrative Review Tribunal Act 2024 (Cth) the decision under review is set aside. The matter is remitted to the Agency for reconsideration with a direction that:

a) Within 14 days of this decision, VWJC's statement of participant supports includes as reasonable and necessary:

• 480 hours for early intervention therapy delivered by a Therapy Assistant Level 2;

• 60 hours of Behaviour Consultation/Supervision delivered by an Allied Health Therapist;

• 3 hours for report writing at the Allied Health Therapist rate; and

• Existing core support replicated on a pro-rata basis for 40 weeks.

b) The Respondent is to determine the appropriate mechanism and evidence required for the provision of reasonable and necessary reimbursement for manual claims for support from 3 March 2025 to the date on which this new statement of participant supports for VWJC is approved.

1. The date by which the Agency must reassess VWJC's plan is to be 9 months after the date on which these supports are included in VWJC's statement of participant supports.

d) The management of funding for VWJC's statement of participant supports is plan management.

Solicitors for the Applicant Ms A Cox, Special Voices

Counsel for the Respondent: Ms N Blok of Counsel

Solicitors for the Respondent: Ms G Rush, Moray & Agnew