4. In arriving at its decision, the Tribunal has considered all the written evidence provided in the joint hearing bundle (admitted and marked 'JHB') and the oral evidence given at the hearing. The following documents were also admitted into evidence:

(a) E1 - Short Technical Advice (TAB-185608) > > (b) E2 - Applicant's current plan dated 28 January 2026 > > (c) E3 - Applicant's sleep logs, August to October 2024, Family Care Australia > > (d) E4 - Applicant's NDIS budget - utilisation data for plan dated 21 June 2024 > > (e) E5 - Applicant's NDIS budget - utilisation data for plan dated 1 October 2024 > > (f) E6 - Applicant's NDIS budget - utilisation data for plan dated 28 January 2026 > > (g) E7 - Applicant's Positive Behaviour Support Plan (short) dated 10 June 2025, completed by OT EB.

5. The Tribunal will refer to the evidence that is directly relevant to the determination of this matter.

(a) 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 it;[3] and > > (b) 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.[4]

2. The relevant provisions under the ART Act are sections 54 and 105.

1. The NDIS was established under the NDIS Act. Its objectives are set out in section 3 and its general principles guiding actions taken under the NDIS Act are set out in section 4. Section 3(1)(c) and (g) relevantly states the objectives of the Act are to support the independence and social and economic participation of people with disability and to promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community.
2. A participant's plan must include a statement of participant supports, approved in accordance with section 33 of the NDIS Act, and any rules made under the NDIS Act.
3. The National Disability Insurance Scheme Amendment (Getting the NDIS back on Track No. 1) Act 2024 (Cth) came into force on 3 October 2024, changing several key provisions.
4. Subsection 34(1) of the NDIS Act now relevantly 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 an NDIS support for the participant.

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

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

(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 Tribunal must be positively satisfied about each of the matters set out in section 34(1) of the Act.[5] The Applicant carries what has been described as a common sense or practical onus to adduce sufficient evidence to satisfy the Tribunal the criteria are met.[6]
2. Under subsection 209(1) of the Act, the Minister may make rules prescribing certain matters including the National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth) ('the Supports Rules') and the National Disability Insurance Scheme (Getting the NDIS Back on Track No.1) (NDIS Supports) Transitional Rules 2024 (Cth) ('the Transitional Supports Rules').
3. The NDIS Operational Guidelines are also relevant to making decisions in accordance with the Act. Operational Guidelines represent government policy and should be applied by the Tribunal unless there is good reason not to do so.[7]

1. Mrs Yasbic gave evidence about her son and why she considers he needs a ratio of 1:2 support at all times when not receiving 1:1 ratio of support during the day.
2. It is clear from Mrs Yasbic's evidence that the Applicant belongs to a very loving and supportive family. Mrs Yasbic provided high levels of support and care for her son until he moved into his current SIL home approximately 3 years ago. She continues to see him at least once per week for approximately 3 hours each Wednesday. The Applicant also attends church with the family about once per month and Mrs Yasbic will often drop by his house for short visits of about 30 minutes. The Applicant sleeps over at the family home from time to time when he is upset or misses his family, with Mrs Yasbic providing support and sleeping on a spare bed in the same room.
3. Mrs Yasbic's evidence can be summarised as follows:
   • She is also the Applicant's plan nominee.
   • Mr Jied suggested seeking review of the Applicant's plan before the Tribunal.
   • Mr Jied did not invite her to case conferences or other Tribunal events during the course of these proceedings.
   • On the Monday prior to the hearing (2 February 2026), Mr Jied told her she would need to give evidence at the hearing.
   • Mrs Yasbic was aware that FCA were planning to engage a lawyer to represent her son in these proceedings. She was not aware that the Tribunal had previously made an order preventing Mr Jied from representing the Applicant in the proceedings due to a conflict of interest.
   • Her husband, Mr Yasbic senior was unable to give evidence before the Tribunal due to work commitments.
   • When the Applicant was living at home, he would throw himself or fall on the floor 2 or 3 times per day. He would throw his crutch on the floor when he was frustrated.
   • He still uses crutches when visiting the family home due to accessibility issues manoeuvring the wheelchair, however it is no longer safe for him to use the crutches.
   • The Applicant was sometimes verbally abusive to family members when living at home.
   • Mrs Yasbic does not think the Applicant ever lied to her or other family members when living at home.
   • She is worried that the Applicant can't wait to go to the toilet, and that he gets frustrated if a support worker is helping someone else.
   • Mrs Yasbic is concerned about the Applicant's safety and the risk of injury to himself or others if the Applicant is supported at the 1:3 ratio.
   • She has noticed a deterioration in the Applicant's speech and that he is less capable of forming whole sentences.
   • Mrs Yasbic has observed the Applicant inappropriately touch or attempt to touch family members on a couple of occasions in the past. She is aware of two incidents at the Applicant's SIL accommodation involving inappropriate touching. She believes the last report was about 18 months ago.
   • When visiting the Applicant, Mrs Yasbic has observed him throw himself on the ground to get attention and swears at staff when he is angry or they are busy with other clients. He says words like 'stupid', 'idiot', 'dog', 'd-head' and the 'f-word' and will scream or bang his wheelchair. She believes the last report of this type of behaviour from FCA was about 5 months ago.
   • When this behaviour occurs, Mrs Yasbic reminds the Applicant that he needs to wait his turn. She feels worried that he will hurt himself because his behaviour escalates, and he doesn't wait. Mrs Yasbic described the workers responding to him by helping him get up and engaging with him. This process takes 5 to 10 minutes.
   • Mrs Yasbic indicated FCA always update her on incidents involving the Applicant.
   • Later in her evidence, Mrs Yasbic indicated these behaviours may be happening more frequently but she's not sure they are all reported. She conceded that she doesn't really know what is happening because FCA have not reported an incident to her in over 5 months.
4. The Tribunal found Mrs Yasbic to be an honest and reliable witness. She capably represented the Applicant in these proceedings and the Tribunal is grateful for her assistance, noting she was only inserted as representative and witness at the last minute.

1. Ms Kebbi is an OT and began providing services to the Applicant in June 2023. In her letter dated 14 February 2024, Ms Kebbi said she has provided intensive OT sessions to the Applicant, however she did not provide any details of the frequency or focus of the sessions.[8] There were several other reports or letters from Ms Kebbi before the Tribunal including documents dated 17 August 2023,[9] 15 September 2023[10] and 2 May 2024[11]
2. Ms Kebbi did not provide any details regarding her professional experience, training, or qualifications. Ms Kebbi did not give oral evidence and her reports were not prepared in accordance with the Tribunal's Practice Directions on expert evidence.
3. Ms Kebbi completed a detailed functional capacity assessment with the Applicant dated 21 September 2023.[12] She recommended a 1:1 ratio of support for all personal care tasks and community participation.[13] She recommended 1:2 support for all domestic tasks including meal preparation, cleaning, laundry, finances, shopping and home maintenance due to "his poor cognition, reduced upper limb function, falls risk and reduced mobility as a result of his disability".[14]
4. With respect to the Applicant's behaviours of concern, Ms Kebbi wrote:

Along with his deficits and impairments, James exhibits symptoms of anxiety and frustration when he experiences feelings of concern, unease, nervousness or worry in relation to past or future events. James will often express his feelings of anxiety by displaying behaviours of concern such as verbal aggression, and self-injurious behaviours (attempting to throw himself on the floor). For James, these behaviours are successful and the most effective way of him gaining attention and communicating.[15]

5. On 2 May 2024, Ms Kebbi wrote a letter to the Respondent expressing support for an increased SIL support ratio because a higher support ratio would allow for more individualised attention and assistance.[16]
6. In her response to targeted questions from the Respondent, Ms Kebbi indicated the Applicant displays the following behaviours of concern as a result of his intellectual disability:
   • Verbal aggression:
     • Verbal abuse towards staff, other residents, family or members of the community.
     • Threats towards staff and other residents
   • Self-injurious behaviours
     • Attempting to throw himself on the ground to gain attentions of others
   • Inappropriate behaviours
     • Attempting to touch female staff in an inappropriate manner[17]
7. She opined that the Applicant may display behaviours of concern in response to the following triggers:

- Boredom when nothing is going on around > > - When denied a specific activity, task or item > > - When the staff are unable to keep James well engaged > > - When James does not feel connected to the staff > > - Being exposed to loud noises, unfamiliar people or in crowded spaces > > - When he is unable to communicate his needs or wants.[18]

James Requires maximal assistance of 1:1 support to be able to de-escalate and manage his behaviours so that he is able to engage in domestic tasks appropriately, minimise risks to care staff and other residents and managing his emotions. > > James is Strongly recommended James (sic) receive ongoing assessment and intervention from Behaviour Support Practitioner (BSP) to address behaviours of concern and to continuously re-assess the need for 1:1 support and determine if James can transition to shared supports in the long term.[19]

9. The Respondent submitted the following in its Statement of Facts, Issues and Contentions (footnotes omitted):

32. Ms Kebbi's letter dated 2 May 2024 recommends 1:1 SIL support for personal care and community access, 1:2 SIL support for domestic duties, and 1:3 inactive overnight support, on the basis of a "Risk Matrix" which identifies the Participant's falls risk and behaviours of concern as creating a risk of injury that warrants an increase to his support ratios. The specific tasks in relation to which Ms Kebbi recommends an increase to 1:2 support are all domestic duties, tasks requiring literacy skills, the Participant expressing his needs and wants, and identifying and managing pain. She further opines that the Participant requires 1:1 support for social participation and behaviour management because of behaviours of concern. In describing the behaviours of concern, Ms Kebbi reports that the Participant "demonstrated an array of behaviours", including "Verbal abuse towards staff, other residents, family or members of the community", "Threats towards staff and other residents" and "Attempting to throw himself on the ground to gain attention of others". It is unclear whether these reports are current, or based on Ms Kebbi's first hand observations because Ms Kebbi appears to have copied these remarks word for word from her earlier Mid-Cost AT Support Letter dated 15 September 2023, and relayed them again in her Functional Capacity Assessment Summary dated 2 May 2024, and her response to the Agency's targeted questions. Each of these reports is also over 18 months old, and the Respondent contends Ms Kebbi's recommendations to not take into account any changes in the Participant's functional needs, behaviour and funded supports throughout that period.

10. The Tribunal accepts the Respondent's contention that Ms Kebbi's observations have been repeated across multiple reports/letters. This reduces the weight the Tribunal can place on her more recent evidence and raises a question in the Tribunal's mind about how regularly she has met with the Applicant during the relevant period.

Ms Ella Brennan - Behaviour Support Practitioner

1. Ms Brennan is a behaviour support practitioner who authored a report dated 16 December 2024.[20] Ms Brennan did not provide any details regarding her professional experience, training, or qualifications. Ms Brennan did not give oral evidence and her reports were not prepared in accordance with the Tribunal's Practice Direction on expert evidence.
2. Mr Jied referred the Applicant to Ms Brennan on 11 December 2024 "to assist with the recent s100 decision review regarding his support ratios" and concern about verbally aggressive and self-injurious behaviours.[21] Ms Brennan attended the Applicant's home the following day - on the 12 December 2024 - to conduct a "home risk assessment" however the Applicant was not present. She reported "[d]irect engagement and assessment were unable to occur between James and the behaviour support practitioner due to the limited time frame".[22]
3. As will be discussed below, by the time of Ms Brennan's first report, the Tribunal is satisfied that Mr Jied had already applied to this Tribunal on behalf of the Applicant. There was no urgency or deadline associated with an internal review process. It is unclear to the Tribunal whether Ms Brennan was aware that Tribunal proceedings were on foot.
4. Ms Brennan indicated that she reviewed external reports and incident reports over a 9-month period, corresponded with Mr Jied by phone and email and had a phone call with OT Ms Kebbi. There were no briefing materials annexed to her report.[23] Ms Brennan did not have any contact with the Applicant's family members.
5. The behavioural data provided by FCA to Ms Brennan indicates 17 incidents over a 9-month period comprising:

(a) 9 falls > > (b) 5 occasions of verbal aggression > > (c) 2 occasions of physical aggression > > (d) 4 occasions of confabulation > > (e) 1 alleged incident of inappropriate sexual behaviour > > (f) 1 occasion of the Applicant being withdrawn

6. She noted "accurate frequencies of the...behaviours of concern across all environments was unobtainable due to missing data".[24]
7. Despite the limited data and the lack of direct observation of the Applicant or engagement with his family, Ms Brennan concluded:

James demonstrates a genuine desire to build a connection with staff and receive direct support regularly. He relies on behaviours of concern to bridge this perceived gap and ensure he receives attentive and meaningful engagement beyond his basic survival needs. This is reflected in his self-injurious behaviours of concern and confabulation behavioural trends, as he attempts to express an immediate need to receive 1:1 support. When James experiences emotional dysregulation, he expresses this frustration in the form of verbally and physically aggressive behaviours of concern... The data captures a behavioural trend, where James intermittently engages in self-injury to receive connection and then intermittently engages in verbal aggression to sever the connection. This is reflective of James's lack of belonging to his environment and the social connections within these environments. He currently does not receive a level of engagement that allows for meaningful rapport building and skill-building to occur.[25] (Tribunal's emphasis)

8. Ms Brennan described similar behavioural trends during 1:1 community access shifts, seeming to undermine her assertion that more intensive support worker assistance will resolve the Applicant's behaviours. Ms Brennan's description of the Applicant's behaviours and any underlying rationale could, in the Tribunal's view, also point to possible issues with the quality of support being provided by FCA.
9. Ms Brennan recommended a 1:1 ratio of support for personal care and community access, a 1:2 ratio of support for domestic duties and active overnight (as recommended by OT). In justifying this recommendation, she opined:

James is communicating and expressing this gap by relying on identified behaviours of concern to achieve his desire to engage 1:1 with support workers while at home or in social settings. If James was provided with adequately funded supports, he would not need to rely on behaviours of concern to achieve his goals.[26]

10. She recommended behaviour support intervention to "ensure environmental considerations, preventative strategies, response strategies and emotional regulation and communication skill-building strategies are developed and implemented".[27] Ms Brennan did not provide any further details about suggested strategies nor did she recommend any routine for behaviour support interventions.
11. During the hearing, Mr Jied told the Tribunal that Ms Brennan prepared a behaviour support plan dated 10 June 2025. Mr Jied had not provided the report to the Respondent or the Tribunal. After hearing the Respondent's objection to the late filing of the document, the Tribunal asked Mr Jied to provide the behaviour support plan to the Respondent and Tribunal. The matter was stood down over the lunch break to afford the Respondent an opportunity to consider the report.
12. The document reveals Ms Brennan did not have any contact with the Applicant's parents during the preparation of the behaviour support plan.[28] Ms Brennan further noted:

Limited engagement occurred between the participant, James, and the behaviour support practitioner. This was due to last minute cancellations due to James not being at the home during pre-organised visits. Engagement with staff and review of incident reports have been relied on to identify behavioural trends and strategies within this plan. > > ... > > James was engaged in the development of this short incident response plan via one successful direct visit on 7.05.2025. James was able to identify and communicate how he likes to be supported by others. He engaged verbally with the behaviour support practitioner and physically (played a game in the back yard with staff). He was also observed to continue with his activity while the behaviour support practitioner was absent for 20mins to support identification of triggers (nil behavioural issues observed and activity proved successful).[29] (Tribunal's emphasis)

13. Ms Brennan's report did not recommend a 2:1 ratio of support worker assistance.
14. Plan utilisation data reveals less than half of the Applicant's budget for specialist behaviour intervention support and development of a behaviour support plan was spent during this period. His support coordination funding was untouched.[30]
15. The Tribunal will discuss the balance of Ms Brennan's behaviour support plan in relation to Mr Jied's oral evidence below.

1. There were 4 incident reports before the Tribunal dated 28 March 2023,[31] 8 September 2023,[32] 15 November 2023,[33] and 20 January 2024.[34]
2. The first incident relates to the Applicant being pushed to the ground by another participant while trying to get into a van. Following the incident, the Applicant was described as extremely frustrated, agitated, and rude to the support worker. It is unclear to the Tribunal whether this amounts to a behaviour of concern or an understandable response by a young man with intellectual disability who had just been pushed over.
3. The second incident refers to an alleged attempt by the Applicant to touch the bottom of a female support worker while she walked past.[35]
4. The third incident is described as follows:

James wanted to sit in the front of the van, and when he was told that that is no allowed, he became extremely aggressive by swearing at the SW, disrupting the other clients as well. He threw his coffee cup on the floor and refused to cooperate. This is a reoccurring type of behavior for James when he does not get his way. He displays aggression and at times throws himself on the floor as well (a form of getting attention). This could cause harm to himself, and he needs BSP intervention immediately.[36]

James had come to the Centre back from his community outing with other SW, and other clients. James was reported to being very difficult as he was upset that he was not allowed to stay at the outing more, where this is not possible as it is not part of the routine. When he came back, I tried to cheer him up by giving him his favourite snacks, but he threw them on the floor. When I picked it up and asked if he was ok, if he would like anything else, he yelled at me (very rude words), and told me to go away.[37]

6. Each incident report involved a recommendation for behaviour support intervention.
7. Mr Jied and the Applicant's father were given opportunities to file additional incident data and other evidence, however this was not provided. The incident reports before the Tribunal are between 2 and 3 years old.
8. There was no evidence of reportable incidents involving the Applicant, which if they occur, must be submitted by FCA to the NDIS Quality and Safeguards Commission.

1. Mr Jied did not provide a statement or CV as part of these proceedings. He gave his oral evidence under affirmation and was reminded by Counsel about the importance of giving truthful evidence and not withholding information from the Tribunal.
2. Mr Jied told the Tribunal that he does not have any qualifications in disability and does not have an undergraduate degree. He indicated he is currently studying medicine at the University of New South Wales. It is unclear when he commenced or when he is due to complete his studies.
3. Mr Jied confirmed he is the COO at FCA and the Support Coordination lead. FCA's management structure includes a Managing Director and a Human Resources manager. Mr Jied told the Tribunal that FCA became a registered NDIS provider in about 2020.
4. Mr Jied attends his office, which is co-located with the Applicant's SIL accommodation, 4 or 5 times per week. Mr Jied explained he spends several hours per day reviewing each client's case which includes reading documentation and observing the clients who live on-site. He is also responsible for FCA's general operations.
5. When asked about the number of FCA clients, Mr Jied replied, "I wouldn't be able to give you an exact number, but it's approximately around 10 at the moment, around 10". When asked about the number of participants who live in the SIL accommodation co-located with FCA's office, Mr Jied replied "approximately 6". FCA provides support worker assistance to the remaining participants who live in their own homes. It was unclear to the Tribunal why Mr Jied was unable to give a more definite number given the small number of FCA clients, his attendance at the SIL accommodation almost every day and his reported regular involvement reviewing participant documentation.
6. Mr Jied confirmed he filed the application for review on Mr Yasbic's behalf on 15 February 2024. He could not recall when he told Mrs Yasbic about the Tribunal application but maintained he had told the Applicant's father. He also gave evidence that he had invited the Applicant's father to tribunal events including case conferences, but the father had declined to attend due to work commitments. Mr Jied agreed that he had not provided Mrs Yasbic with any updates about the Tribunal application until two days before the hearing commenced.
7. Regarding the issue in dispute, Mr Jied explained that the NDIS price guide dictates different prices for support worker assistance depending on the ratio and time of day. He indicated the weekday daytime hourly rate is $70.23. If that rate is divided by three participants (1:3 ratio), FCA is funded approximately $23 per hour to provide support to each participant.
8. The Tribunal infers that if the rate is at the 1:2 ratio, FCA could charge the Applicant's plan about $35 per hour to provide support to him. As the dispute relates to the ratio of support for about 6 hours per day (42 hours per week), FCA could charge around $500 more per week (using weekday daytime rates only) for providing a 1:2 ratio of support. The figure would be higher once weekend rates were applied.
9. Counsel asked Mr Jied whether the recommended actions arising from 4 incident reports filed with the Tribunal had been implemented. The following exchange took place:

Counsel: So are you sure that behavioural support practitioner intervention has been implemented for Mr Yasbic? > > Mr Jied: Over the course of time, yes, he's engaged with a behaviour support practitioner. > > Counsel: How often is he engaged with a behaviour support practitioner? > > Mr Jied: At the moment he doesn't have one, but when he did have one visits varied. James was reluctant to engage in sessions. Sometimes it happened once a week, sometimes once a month, sometimes once every couple of months. He would get quite agitated during sessions. The behaviour therapist was in the background providing advice to us as support staff of how to deal with emotions and behaviours better. > > Counsel: Ok, what was the name of that behavioural therapist? > > Mr Jied: Ella Brennan. > > Counsel: And do you remember roughly when she started providing support to Mr Yasbic? > > Mr Jied: No, I don't recall. > > Counsel: Do you remember when she stopped providing support to Mr Yasbic? > > Mr Jied: I do not know. > > Counsel: Ok, do you remember roughly when Mr Yasbic last engaged with any behavioural supports? > > Mr Jied: My estimate would be mid last year, somewhere around there.

10. Counsel returned to this topic later in her questioning:

Counsel: So approximately half of Mr Yasbic's funding for behavioural supports was not utilised. > > Mr Jied: That's correct. > > Counsel: And are you able to explain to the Tribunal what the behavioural support funding that was used was used for? > > Mr Jied: Mainly for reporting, some sessions towards James and mostly support to our support team of how to best deal with his behaviours and some training as well. > > Counsel: And when were those, when was that provided, do you recall? > > Mr Jied: I cannot, no. > > ... > > Counsel: Are there any plans in place to re-engage Mr Yasbic with a behavioural support practitioner? > > Mr Jied: Yes, we have one in the works that's hopefully starting in the next month or so. > > Counsel: Ok, what is their name? > > Mr Jied: I don't know the clinician but it's from [name of organisation unclear]. > > Tribunal: Why is it not Ms Brennan, Mr Jied? > > Mr Jied: She's left her organisation. That's why we have to stop services with her, and we have no idea where she's gone. > > Tribunal: When was the last time you spoke to her? > > Mr Jied: Sometime last year, mid to end of last year, I can't recall. > > Counsel: Did you take any steps to connect Mr Yasbic with another behavioural support practitioner when that occurred? > > Mr Jied: We did. He was very reluctant to engage with one. Then we faced the festive period which was a mission to engage with anybody.

11. After the lunch time recess, Mr Jied again gave evidence about behaviour support interventions provided:

Counsel: So, to your knowledge, were there any other providers providing behaviour support intervention to Mr Yasbic? > > Mr Jied: No. > > Counsel: And you also gave evidence that [Ms Brennan] had attended the SIL with Mr Yasbic to provide behaviour supports? > > Mr Jied: Yes. > > Counsel: Roughly how many times did that occur? > > Mr Jied: I wouldn't be able to give you an exact number. I cannot recall. > > Counsel: How often did that occur? > > Mr Jied: Again, it differed. Sometimes she came weekly, sometimes it was monthly. It was never consistent because of James' availability and his reluctance to engage. > > ... [Counsel shows the witness Ms Brennan's behaviour support plan] > > Counsel: Is it correct that Ms Brennan only had one direct visit with Mr Yasbic? > > Mr Jied: No, she had several. > > Counsel: I'll now take you to the bottom of page 3 of Ms Brennan's report. The report states James was engaged in the development of this short incident response plan via one successful direct visit on 7 May 2025. As far as you're aware, did Ms Brennan have any other direct visits with Mr Yasbic? > > Mr Jied: It was several, many. > > Counsel: At the top of page four of the report, Ms Brennan states no other home visits were possible due to James' absence from the home a few times. Do you have any comment on that? > > Mr Jied: No, I'm not sure what she's meaning there, but she definitely met him several times. I was there with them multiple times as well.

12. Mr Jied gave evidence that despite the lack of daily logs or incident reports before the Tribunal, incidents occur daily and "may have been communicated to the father instead" of Mrs Yasbic. He confirmed that FCA provided two additional incident reports and a "tally system" to Ms Brennan for the development of the behaviour support plan, however neither were provided to the Tribunal. Ms Brennan found that "accurate frequencies were unable to be determined" based on the tally and incident reports provided by FCA.[38]
13. Mr Jied claimed some of the incidents were severe, however there was no evidence FCA had filed reportable incidents in relation to the Applicant with the NDIS Quality and Safeguards Commission. Mr Jied disagreed with Ms Brennan's hypothesis that the Applicant's "behaviours of concern have been predominantly reflected in an internal tally system due to the low risks associated with them".[39] She recommended the development of a 'mood chart' to collect data about behavioural trends that do not warrant an incident report.[40] Mr Jied indicated FCA had followed this recommendation for a period, however the chart was not provided to the Tribunal.
14. Mr Jied conceded under cross examination that FCA had submitted the 'change of circumstances form' to the Agency on 15 September 2023; well over a year before Ms Brennan completed her report on 16 December 2024 in which she reported a degree of urgency because of the 'section 100'/internal review process. FCA had already applied to the Tribunal in February 2024 and the Agency had emailed targeted questions on 6 August 2024. Noting the desirability of a behaviour support practitioner meeting a participant directly, the Tribunal suggested to Mr Jied that there was no urgency associated with the preparation of Ms Brennan's report. Mr Jied insisted there was a deadline but could not recall the reason.
15. Mr Jied disagreed with the proposition that 17 reported incidents between January and November 2024 (excluding April and May) suggest the Applicant demonstrated infrequent behaviours of concern in the lead up to Ms Brennan's first report.
16. Mr Jied indicated he had not told Mrs Yasbic the Tribunal had made an order that he could not represent the Applicant in these proceedings because of a conflict of interest as her son's SIL provider. He agreed with Counsel that he had told the Tribunal during a directions hearing that FCA would pay for the Applicant's legal representation and indicated it made sense from a commercial perspective.
17. Mr Jied was observed to be an unimpressive witness. The Tribunal will say something further about the reliability and credibility of his evidence below.

1. Mr Stretton is an OT registered with APHRA. He obtained his Bachelor of Applied Science (Occupational Therapy) from the University of Sydney in 1995. He has almost 30 years of relevant experience and his curriculum vitae was included in his report. He maintains a clinical caseload in addition to doing medico-legal work.
2. Mr Stretton confirmed the accuracy of his report dated 6 March 2025 which he prepared following an in-person assessment with the Applicant, his parents, his grandmother, and Mr Jied on 10 February 2025.[41] The assessment involved interviewing the people present and observing Mr Yasbic demonstrate functional tasks including eating and drinking, completing various transfers from his wheelchair, mobilising around the home, and using his phone. Mr Stretton's report was prepared in accordance with the Tribunal's Practice Direction on expert evidence.
3. Mr Stretton noted that the Applicant has an "excellent relationship with this family, who visit often and provide informal support".[42] He found the Applicant was "pleasant and cooperative for the durations of the assessment and willingly participated to the best of his ability".[43]
4. With respect to mobility and transfers, Mr Stretton wrote:

Mr Yasbic mobilises indoors and outdoors using his self-propelled wheelchair. He can manage short distances on flat ground but fatigues easily and requires the assistance of one person to assist him on surfaces with any gradient. > > Mr Yasbic has previously mobilised with Canadian crutches but is no longer safe doing so. Mr Yasbic is able to stand from his wheelchair using the armrests and take a few steps with physical assistance and guidance. > > Mr Yasbic is unable to use stairs. > > Mr Yasbic travels as a passenger in a vehicle.[44]

5. The Applicant requires physical assistance to transfer on and off the toilet.[45] He can communicate basic needs and wants verbally, and to follow simple instructions. The Applicant relies on assistance from support staff for more complex communication. He requires full assistance for self-care and self-management tasks.[46] Based on his assessment of the Applicant's typical day, Mr Stretton recommended the following:

Mr Yasbic requires 24/7 support and cannot be left alone. He requires person-to- person support for all personal care tasks such as showering, dressing, grooming, toileting and feeding. He requires physical assistance for all transfers and for wheelchair mobility when he is fatigued. Each of these supports is required at a 1:1 ratio: > > - 2 hours per day is required for his showering, dressing and grooming > > routine. > > - 2 hours per day is required for feeding (3 meals x 0.5 hours each plus > > drinks and snacks). > > - 1.5 hours per day is required for toileting (based on 10 episodes of 10 minutes duration). Toileting logs reviewed for the period 10 January 2025 - 9 February 2025 to support this need. > > - 1 hour per day is required for emotional regulation support. > > The need for this support arises due to cerebral palsy and ID.[47]

6. Mr Stretton reported that overnight support data provided by Mr Jied between 2 August 2024 to 26 October 2024 listed at least 3 occasions per night when the Applicant was attended to for toileting, transfers, and reassurance after nightmares. "The duration of support listed were only in whole hours (minimum 3) so it is unclear for exactly how much time support was provided, or the times at which it was provided".[48]
7. Mr Jied, for the most part, maintained during his oral evidence that FCA's sleep data accurately reflects the provision of 3 or 4 hours of support during the night when the Applicant wakes up 3 or 4 times for toileting or after having a nightmare.
8. Mr Stretton told the Tribunal the Applicant requires a 1:1 ratio of support worker assistance for various tasks of daily living and community participation each day. He explained that based on his assessment, a 1:3 ratio of support worker assistance was sufficient for the other parts of the day, including active overnight support. Mr Stretton further explained that he would only recommend a ratio of 1:2 support worker assistance in circumstances where there were safety concerns for the participant or other people. In practical terms, a ratio of 1:3 provides an individual with 20 minutes of support per hour whereas a 1:2 ratio provides 30 minutes of focused attention.
9. In Mr Stretton's view, there was insufficient data about the type and duration of the Applicant's behaviour of concern or the supports the Applicant requires over the course of the day. Mr Stretton explained that behaviours of concern are best understood as behaviours that pose a physical or psychological risk to the person or somebody around them. Behaviours often included self-injury, physical or verbal aggression and are anti-social, for example, inappropriate urination or defecation. He confirmed that behaviours exist along a spectrum ranging from low level behaviours through to quite extreme behaviours that pose a very real safety risk. Mr Stretton considered that an incident report should be recorded where a behaviour involves the potential for some degree of harm.
10. Mr Stretton noted that his assessment of the Applicant's functional capacity did not differ greatly from Ms Kebbi, however he reached a different conclusion about the ratio of support, stating: "In my opinion further behavioural data is required for justification of a 1:2 ratio (at non 1:1 ratio times). His physical needs should be able to be met with a 1:3 ratio".
11. In his opinion, behaviour support interventions are the most sensible strategy to respond to the Applicant's reported behaviours of concern, for example, intentionally pushing himself out of a wheelchair. Mr Stretton opined that a support worker won't necessarily be effective in preventing or reducing that behaviour because they won't always be able to predict when it might happen.[49]
12. Mr Stretton did not observe any behaviours of concern during his 2-hour assessment. Based on the Applicant's reported behaviours, which he considers sit along the lower end of the behaviours of concern spectrum, Mr Stretton expressed surprise that a behaviour support plan was not in place when he assessed the Applicant. He noted that behaviour support is always the first type of intervention to respond to sexualised behaviours, verbal/physical aggression, or self-injurious behaviours.
13. The Tribunal considers Mr Stretton an independent and impartial witness who has appropriate qualifications and experience to give expert evidence.

1. Having considered and weighed the oral and documentary evidence, the Tribunal makes the following findings:
   • FCA made the application for internal review and external review by the Tribunal in circumstances where they knew or ought to have known they had a clear conflict of interest as the Applicant's SIL provider.
   • FCA was the Applicant's Support Coordinator and SIL provider during the relevant period.
   • The Applicant required, and continues to require, positive behaviour support intervention to address relatively low-level and/or infrequent behaviours of concern. FCA was aware of recommendations for positive behaviour support. Funding for this support was included in the Applicant's plan from at least June 2024.
   • In the telephone directions hearing on 8 September 2025, Mr Jied indicated to the Tribunal that the Applicant saw his parents "once every month or two". The Tribunal is satisfied Mr Jied misrepresented the extent to which Mr and Mrs Yasbic are involved in the Applicant's life so that FCA could continue to represent the Applicant in these proceedings.
   • Due to inconsistencies with other evidence and the absence of corroborating evidence, the Tribunal does not accept Mr Jiad's evidence that:
     • the Applicant was reluctant to engage with a behaviour support practitioner or that he tends to lie. Mr Jied's suggestions to the contrary was observed to be disingenuous and self-serving.
     • He facilitated the Applicant meeting Ms Brennan more than once.
     • FCA staff received appropriate training to respond to the Applicant's behaviours.
     • He regularly updated the Father about the proceedings or invited him to tribunal events, such as case conferences.
   • The Tribunal is not satisfied that Mr Jied was always honest and forthcoming when giving evidence in these proceedings or during his interactions with the Tribunal more broadly.
   • Despite being funded to provide support coordination services, FCA did not arrange appropriate levels of behaviour support interventions for the Applicant during the relevant period. This is highly regrettable for the Applicant.

Recommendation 10.2 of Volume 10 of the Final Report of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability states:

To address potential conflicts of interest, the Minister for the National Disability Insurance Scheme (NDIS) should, in consultation with states and territories, create or amend an NDIS Rule to make clear that it is not appropriate for a provider of support coordination to be the provider of any other funded supports in an NDIS participant's plan.[50]

...

The Tribunal is satisfied there is a conflict of interest between FCA's role as Support Coordinator (which involves arranging positive behaviour support interventions for the Applicant), their role as a SIL provider providing daily support worker assistance, and their role in these proceedings, which focused on a request for increased SIL funding.

The conflict is particularly concerning in circumstances where FCA primarily justified the need for a 1:2 ratio and increased SIL funding on the Applicant's behaviours of concern and yet largely failed to arrange positive behaviour support interventions to address those behaviours.

• The Tribunal is satisfied FCA's involvement in these proceedings was partially motivated by their own commercial interests and that Mr Jied continued to involve himself in and direct these proceedings after the Tribunal made an order that he must not represent the Applicant.
• The Tribunal is not satisfied there was any urgency associated with the preparation of Ms Brennan's first report. The Tribunal considers it likely that Mr Jied created a false sense of urgency which had the effect of undermining a more considered and comprehensive assessment by Ms Brennan, including meeting with the Applicant and consulting with his parents. Whilst the Tribunal cannot be sure exactly what Mr Jied reported to Ms Brennan, it was surprising to the Tribunal that Ms Brennan was prepared to complete the first report in the circumstances, noting FCA's obvious conflict of interest and the objective vulnerability of the Applicant as someone who lives with intellectual disability and limited verbal communication.
• The Tribunal prefers the expert evidence of Mr Stretton to that of Ms Kebbi and Ms Brennan because he provided a curriculum vitae evidencing relevant professional qualifications, he has almost 3 decades of experience as an OT, he assessed the Applicant relatively recently, he met with the Applicant and his family in person, he prepared his report in accordance with the Tribunal's Practice Direction on Expert Evidence and gave oral evidence under affirmation.

1. Noting the above findings, the Tribunal is not satisfied that the request for a 1:2 ratio of support (for times when the Applicant is not sleeping or funded at a 1:1 ratio) is or is likely to be effective and beneficial for the participant, having regard to current good practice.
2. The Tribunal accepts Mr Stretton's evidence that positive behaviour support is the more appropriate and effective intervention to address the Applicant's behaviours of concern. The Tribunal is satisfied this support is adequately funded in the Applicant's plan. The Tribunal does not accept that a 1:2 ratio of support will be effective in addressing the underlying causes of the Applicant's behaviours, nor will it significantly improve the ability of support workers to predict or respond to any behaviours when compared with a 1:3 ratio of support.[51]
3. For similar reasons, the Tribunal is not satisfied the request for a 1:2 ratio is value for money under section 34(1)(c), because there are comparable supports that would achieve the same outcome at a substantially lower cost, namely behaviour support interventions. Further, funding a 1:2 ratio of support worker assistance is unlikely to reduce the cost of funding of supports for the Applicant in the long term because such support does not identify or address the underlying causes of his behaviours of concern.[52]
4. Accordingly, the requested support is not reasonable and necessary because it does not satisfy sections 34(1)(c) and (d) of the NDIS Act. Having found that section 34(1)(c) and (d) are not met, it is unnecessary for the Tribunal to consider the remaining criteria under section 34(1) of the Act.
5. The decision under review is affirmed.

[2] See Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth).

[3] See Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [37]- [38], [45]-[46] (Kirby J), [99] (Hayne and Heydon JJ), [143] (Kiefel J). 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]; QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189.

[4] QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 at [7].

[5] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at [201].

[6] For example, Beezley v Repatriation Commission (2015) FCAFC 165 at [68] (North, Tracey and Mortimer JJ).

[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [635].

[21] JTB15 of JHB, p627. (A 'S100' refers to a NDIS Act section 100 internal review decision.)

[50] See Volume 10, p12 and 92. https://disability.royalcommission.gov.au/publications/final-report-volume-10-disability-services

[51] See Rule 3.3 of the Supports Rules.

[52] See Rules 3.1(a) and 3.1(c) of the Supports Rules.