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]

6. Roberts and Williams 2016 base the recommendation of 20 hours per week of early intervention is on a 'midpoint' evaluation of the programs that were evaluated, which indicated that between 15 and 25 hours per week was most commonly effective. The report also states:

Evidence that underpins guidance about supports for preschool children with autism and their families continues to evolve. It is likely our understanding of best practice for support and intervention will also be influenced by changes in our understanding of autism and its causes, which will be linked in turn to the best methods for diagnosis. This means that any recommendations provided will need to be updated as new evidence emerges or as reviews and guidelines based on evidence are published, for example a NICE guidelines update is expected in 2016.[23]

1. Also tendered by ZPCZ's parents was the NDIS Independent Advisory Council's report titled Promoting Best Practice in ECI in the NDIS dated March 2020. The report states:

Australian guidance for children with ASD differs from guidance for children with ASD in UK, Scotland, US and NZ in its focus on:

a) staff ratios and 'fixing the child' with less focus on working with the child, family and carers to respond to developmental needs in natural environments

b) transition to opportunities for interaction with peers rather than on staff supporting parents and carers especially of very young children in the home, in child care and other natural settings

c) in summary Australian guidance appears to prioritise expert intervention to get the child ready for participation where international guidance for children with ASD promotes the use of experts to guide parents and carers in natural settings.

The IAC recommends the development of new practice guidelines for children with ASD to support best practice in ways that are sustainable for the NDIS.[24]

1. A summary of Rodgers, Yoda et al A Multisite Randomized Controlled Trial Comparing the Effects of Intervention Intensity and Intervention Style on Outcomes for Young Children with Autism (Rogers et al 2021) was tendered by ZPCZ's parents. This study tested the effect of two levels of treatment intensity (by reference to the number of hours) and two treatment styles on the progress of young children with autism. Their findings concluded:

Neither treatment style nor intensity had overall effects on child outcomes in the 4 domains examined. Initial severity did not predict better response to 1 intervention style than to another. We found very limited evidence that initial severity predicted better response to 25 vs 15 hours per week of intervention in the domains studied.

1. The Agency tendered Dr Michael Sandbank's reports, an international expert on early intervention research for children with autism. She is an Assistant Professor at the Department of Occupational Science & Occupational Therapy, School of Medicine at the University of North Carolina. She has a PhD in Special Education, specialising in studying autism and early childhood special education, early development, language and communication and has been trained in applied behavioural analysis. Her meta-analysis work was referred to during the hearing and the Agency specifically tendered her reports dated 21 July 2022 and 15 August 2022.
2. 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.[25]

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.
2. 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 and have concluded that they do not lead me to change my opinion expressed in my prior report.[26]

1. In the Journal of the American Medical Association (JAMA Paediatrics) June 2024 issue Dr Sandbank et al published an article titled, Determining Associations between Intervention Amount and Outcomes for Young Autistic Children a Meta- Analysis, (Dr Sandbank June 2024). This meta-analysis included 144 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.[27]
2. ZPCZ's parents relied on the meta-analysis work undertaken by Frazier et al in response to Dr Sandbank's June 2024 JAMA Paediatrics' article. ZPCZ's parents noted that Frazier et al published Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism in November 2024 (Frazier 2024) claiming that selective sampling influenced Dr Sandbank's primary study conclusion because IQ was not added as a covariant.[28]
3. Frazier et. al also stated that intervention dosage does have an positive effect and must be factored into the design, evaluation, and implementation of treatment programs for individuals with autism. In his re-analysis of Dr Sandbank's dataset with IQ included, Frazier states the data showed significant associations between intervention quantity and better outcomes.
4. Dr Sandbank, and Putsejovsky then replied to Frazier, et. al in JAMA Pediatrics November issue titled Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism - Reply (Dr Sandbank and Putsejovsky 2024_)._ Dr Sandbank and Putsejovsky 2024 contend that they re-analysed their model utilising IQ, and did not find a statistically relevant difference. They claim Frazier 2024 pooled data across intervention types, leading to results that have less statistical power.[29]
5. Of significant relevance to this matter also is the Autism CRC Australian National Guideline published 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.
6. 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.

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.[30]

Whether 20 hours of therapy the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice ds 34(1)() of the NDIS Act

1. I accept that ZPCZ's capacity with respect to communication, social skills, emotional regulation and behaviour are significantly impaired across all functional domains. I also note that his EIBI provider has consistently recommended from November 2023 to present day, that he engage in 20 hours a week of ABA therapy.
2. ZPCZ's mother in her Statement of Lived Experience states that 'we have seen substantial gains in [ZPCZ's] development, particularly evident in [ZPCZ's] verbal ability and a substantial decrease in his refusal behaviours... This consistency in approach and increase of therapeutic hours has been integral in seeing shifts in [ZPCZ's] progress.[31]
3. ZPCZ's parents explained the evidence demonstrates he is happy, relaxed, engaged in his current therapy. They explain that he will continue to request to attend therapy and regularly requests to visit with his therapists by name even on weekends. They state this is a notable contrast to his attitude towards the preschool environment where he will regularly protest against attending.
4. I take into account the lived experience of ZPCZ's parents along with the evidence of the EIBI therapy supervisor Ms D and his Paediatrician Dr G that supporting ZPCZ through this therapy will enable him to developmentally progress and regulate his emotions.
5. I found ZPCZ's parents to be highly informed in respect to ABA therapy and the research regarding intensity. It is clear to me that they take their responsibility seriously to ensure his development, safety and well-being. His parents state that the NDIS Act does not require me to have absolute surety or 100% guarantee that 20 hours a week of therapy will be beneficial, but rather the threshold is whether it is likely to be beneficial.
6. ZPCZ's parents explain that the progress he has made especially since beginning 16 hours per week, combined with the clinical recommendations by his treating paediatrician and his therapists alongside their observations of his general enthusiasm and requests to attend beyond the current hours, all go toward reassurance that 20 hours a week of EIBI therapy will be, or is likely to be, beneficial for ZPCZ.
7. I disagree with the parent's view of s34(1)(d) of the Act, the criteria that I must apply has more work to do than satisfy the decision-maker that the support is or is likely to be beneficial to ZPCZ. The criteria to be applied is that the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice. [Tribunal emphasis]
8. I have read and considered all of the reports from his EIBI provider. These reports provide general conclusions that more therapy is better, though there is lack of rationale as to the reasons specific to ZPCZ that he is recommended to undertake 20 hours a week.
9. In cross examination ZPCZ's mother was asked how the 20 hours of therapy would fit into ZPCZ's existing busy schedule. ZPCZ's mother gave evidence that the difference between the current 16 hours when moving to 20 hours would likely see an additional 2 hour session on both a Wednesday and Thursday afternoons. I note, that ZPCZ is already engaged in occupational therapy on Wednesday afternoons.
10. ZPCZ's mother gave evidence that she had observed her son's behaviour and skill building improve since the EIBI therapy began. I accept that ZPCZ has responded well and made progress whilst receiving this therapy. Noting he currently attends for 16 hours a week; what is being asked of the Tribunal is whether funding an extra 4 hours a week of this therapy is reasonable and necessary. I must turn to an evaluation of current good practice evidence in order to satisfactorily answer the question of whether 20 hours per week will be or is likely to be beneficial to ZPCZ.
11. In the written materials there was emphasis placed by ZPCZ's parents on the Prior and Roberts 2012 Guidelines (originating from their 2006 works) and Roberts and Williams 2016 report relevantly commissioned by the NDIS. Specifically, emphasis was placed on their recommendation that early intervention for children with autism should ideally involve 15-25 hours per week of ABA therapy.
12. I am concerned with the currency of the aforementioned recommendation. The Autism Interventions Evidence Report released in November 2020 by the Autism CRC note that of the 58 systematic reviews included in their study, including the above Roberts and Williams study, 40 have been published in the last five years, meaning 68% have been published since the 2016 report was released. Autism CRC comment that there have been significant additional quality research findings in recent years.
13. Dr Sandbank in her report dated 15 August 2022, states that the number of published studies on autism interventions has dramatically increased in the last 10 years.[32] By reference to figures from her own work, as at November 2021, she explains that 291 reports of studies testing interventions for young children on the autism spectrum had been identified. Dr Sandbank reported that 75% of these were published after 2013.[33] By way of example I note Roberts & Williams 2016 study was informed by approximately 73 reports.
14. Dr Sandbank states that evidence summaries, systematic reviews, meta-analyses and their corresponding conclusions published in or before 2012 are no longer reflective of all or even the majority of the available evidence in this area.
15. The Agency contends that 20 hours a week sought is not in keeping with current best practice or in line with current research literature and expert opinion. The Agency cites the CRC Guidelines National Guideline for supporting the learning, participation, and wellbeing of autistic children and their families in Australia as what is current best practice. The Agency states that the current clinical research and the published and refereed literature does not support the contention that 20 hours is more effective than 10 or 15 hours.
16. Overall there is no specific evidence about ZPCZ and his current progress or his likely progress on the requested 20 hours a week that persuades me it will be value for money and effective and beneficial. Dr Sandbank's conclusions in 2024 are that 20 hours or greater of early childhood intervention have not been satisfactorily proven to be more effective than a reduced level of intensive support in the range of 5-15 hours per week.
17. Dr Sandbank's findings align broadly with Recommendation 56 of the CRC Guidelines which provides that practitioners should be aware that the research evidence does not support that more hours of intervention will consistently result in a better outcome for a child and their family
18. Having considered the CRC Guidelines, Dr Sandbank's reports, together with the voluminous literature and reports in evidence and in particular those referred to at paragraphs 64-80, I accept that clinical research regarding the optimal intensity of early behavioural programs is that current clinical research does not establish that 20 hours a week of ABA therapy for children with autism represents current best practice. I find that the findings of the research literature relied upon by ZPCZ's parents for 20 hours a week has been superseded by more recent studies.
19. The EIBI therapy program recommended at 20 hours per week for ZPCZ, is not evidence-based having regard to current research literature. I am therefore also not satisfied that the EIBI program will be, or is likely to be, effective and beneficial for ZPCZ and represents current good practice at 20 hours per week.
20. I note the Agency has made the concession of 18 hours a week. I am also not persuaded that the evidence supports 18 hours per week as being effective and beneficial having regard to current good practice. The evidence has not satisfied me to depart from the quantum of his current 16 hours a week.
21. Section 34(1)(c) and (d) of the NDIS are not satisfied in relation to the request for 20 hours a week.

1. As paragraphs 34(1)(c) and (d) of the Act are not established, I am not required to consider whether paragraphs 34(1)(e) to (f) of the Act are made out. While I acknowledge the concession made by the Agency of 18 hours a week, I have not been satisfied on the evidence before me that this weekly increase ties to the evidence nor reflects current good practice. Accordingly, the EIBI therapy quantum will remain unchanged at 16 hours a week.

The ABA supervision, report writing and team meetings

1. ZPCZ seeks funding for session progress notes and data summaries of 15 minutes for 10 sessions per week, along with program supervision by a Board-Certified Behaviour Analyst (BCBA) of 4 hours per week; along with 2 hours for bi-monthly team planning sessions to review progress consisting of 12 hours for the BCBA supervisor plus an additional 12 hours each for the two Level 2 therapists; and NDIS plan review report writing of 5 hours per year.
2. The Agency's conceded position is that reasonable and necessary funding is as follows:

(a) 1.80 hours per week for progress report writing;

(b) 2 hours per week for program supervision by a Board-Certified Behaviour Analyst

(c) 12 hours per year for team meetings; and

(d) 4 hours per year for plan review assessment and reports.

1. ZPCZ parents' position is that 4 hours a week for supervision represents value for money, as the bulk of ZPCZ's EIBI therapy is being delivered by therapy assistants, at an hourly rate far less than that of a Board Certified Behaviour Analyst (BCBA). ZPCZ parents explain that due to the use of therapy assistants, there is a need to ensure adequate support and supervision is provided. They note the level of therapeutic supervision requested is per ABA Guidelines. In support of 20% supervision, Ms M in her 7 November 2024 report states that due to ZPCZ's individual disability profile, he requires the 20% supervision.[34]The Behavioural Analyst Certification Board recommends 20% supervision for patients with barriers to skill acquisition who may need more frequent case supervision to problem solve and adapt programming, or patients with severe behavioural and may require more intense case supervision or safety to achieve successful outcomes.[35] I
2. I note and accept that ZPCZ parents' have exercised their choice and control to use ZPCZ's capacity building funding for EIBI therapy based on the ABA model. I am not persuaded by the parent's contention that due to the Agency providing hours for general capacity building early childhood intervention funding to ZPCZ, that it then has any positive obligation to additionally fund ABA supervision hours in line with ABA guidelines.
3. The Agency's position is that 2 hours per week for supervision by a Behaviour Support Consultant is a reasonable and necessary support. I am satisfied that this is an appropriate concession to make. I find that the extra funding of hours requested for ABA supervision of 4 hours per week is not reasonable and necessary on the basis that I do not find it is value for money pursuant to s 34(1)(c) of the NDIS Act. As s34(1) is cumulative I am not required to consider whether paragraphs 34(1)(aa)(a)(b)(d)(e) to (f) of the Act are made out.
4. I am satisfied that 2 hours per week for supervision by a Behaviour Support Consultant is a reasonable and necessary support under s 34(1)(aa)-(f) of the NDIS Act.

1. ZPCZ's parents are requesting 2 hours of funding for bi-monthly team planning sessions to review ZPCZ's progress. This would consist of having support for 12 hours per year for a BCBA supervisor plus 24 hours funding to allow two therapy assistants to attend each planning session.
2. The Agency's position is that 12 hours per year for team meetings is reasonable and necessary. I agree this is an appropriate concession to make. As s34(1) is cumulative I am not required to consider whether paragraphs 34(1)(aa)(a)(b)(d)(e) to (f) of the Act are made out.

1. The Tribunal had the benefit of viewing the EIBI provider's session notes from 2023 and 2024 included in the JTB. The notes are completed via template documents with headings such as:

How easily did the client enter the session/clinic today?

Did Behaviours of Concerns or Any Incidents occur in the Session?

General Notes: (Brief overview of the session)

Today we worked on: (List programs/goals that were worked on in session)

Please upload any photos/videos from today's session that may be relevant:

1. Generally the notes before the Tribunal have yes/no answers with a sentence or two under each heading. ZPCZ's mother in her Lived Experience statement contends that:

Note taking and data collection needs to be captured at the end of the session. ABA therapy requires a great deal of data collection and collation. The goals set are highly measurable by the analysis of data which is graphed over time. As demonstrated in the previously submitted documents, notes capture goal progress, the activities that took place and at what intensity, how successful the activity was completed, if there were any issue or concerns, etc. This is an important means of communicating both with parents and [ZPCZ's] other therapists, who can then implement appropriate learning or address concerns. It is also required to demonstrate progress and ensure therapy is effective and of value. The notes also reflect a multidisciplinary approach to other aspects such as food consumption during the session.[36]

1. The Agency's has conceded that 2 hours a week for progress notes would be a reasonable and necessary support. On considering the notes before me, the therapist currently spends 2 hour blocks with ZPCZ. I am not persuaded that funding for an extra 15 minutes of top of this therapy, is representative of value for money utilising public funds and considering the sustainability of the scheme. It remains curious that this note taking line item in the quote provided by the EIBI provider dated 12 April 2024 states:

15 minutes per session summary notes (NDIA requirements) $10,320

1. On the evidence the EIBI therapy is not a registered NDIS provider, and there is no evidence to substantiate the claim that the NDIA requires families to pay for an extra 15 minutes per session for summary notes for early intervention supports. I note over a 12 month period this extra $10,320 is a significant cost for the scheme to bear. I find that an extra 15 minutes per session for summary notes for 10 sessions per week does not meet value for money nor effective and beneficial in relation to s34(1)(c) and (d) of the NDIS Act.
2. As I have determined that paragraph 34(1)(c) and (d) of the Act are not established, I am not required to consider whether paragraphs 34(1)(e) to (f) of the Act are made out. The request for session progress notes of 15 minutes for 10 sessions per week for 48 weeks, is not a reasonable and necessary supports under s34(1) of the Act.

1. In the current plan there is funding for 4 hours for NDIS plan review assessments. The Agency's position is that these 4 hours per year for plan review assessment and reports are reasonable and necessary. The Applicant seeks 5 hours per year for plan review assessments.
2. ZPCZ has met access on impairments of severe speech, language and communication impairments, severe impairments in play and social skills, significant difficulties with emotional regulation and slowed progress in achieving age appropriate activities of daily living such as toilet training, dressing and eating. I am not satisfied on the evidence before me that 5 hours of report writing per year for NDIS plan review arises from ZPCZ's impairment nor meets the value for money criteria.
3. On the evidence I am not persuaded to alter the current funding position in relation to report writing. The request for 5 hours per year funding for NDIS review reports has not been evidenced to be relating to the impairments he met access for nor reflect value for money under s34(1)(aa) and (c) of the Act.

1. ZPCZ's is seeking an additional 47 hours per year of capacity building supports for therapist travel. The current plan includes 249 hours of flexible capacity building therapy per year or approximately 5.1 hours per week over a 48-week period.
2. With regard to the therapist travel support, ZPCZ's parents state that 'the current funding of 5.1 hours per week doesn't include any flexibility for a therapist to attend [ZPCZ's] preschool setting. This also doesn't take into account that therapists charge travel costs at the NDIA approved rate to travel to preschool and home'.[37]
3. The Agency considers that the current funding is adequate to cover the speech therapy, occupational therapy plus the travel required given ZPCZ lives in a metropolitan area.
4. ZPCZ's mother gave evidence that ZPCZ's therapists are currently attending his preschool to undertake therapy. She further accepted that the regular travel for therapy leaves on average about two hours a week for travel time. This was put the ZPCZ's mother during the hearing, however could not explain why more travel time was needed.
5. She also accepted that the distance between the occupational therapist and preschool is approximately 5 minutes, and that the time between the occupational therapist and ZPCZ's home was approximately 10 minutes each way. ZPCZ's mother gave evidence that less travel time has been needed for the occupational therapist as the other one was on maternity leave.
6. The report of Ms G dated November 2023 recommends a minimum therapy session of once per week.[38] The report of Ms Collis recommends two 1 hour therapy sessions per week plus additional travel time.[39] The recommendation of Ms Pasato speech therapist, is that ZPCZ should continue to go to ongoing weekly speech pathology at home and in preschool.[40]
7. Overall the evidence does not provide recommendations supporting ZPCZ attending a speech language specialist or consultant once a fortnight, or that he should be attending speech pathology or therapy more than twice a week.
8. The Agency's position, which I accept, is that the current funded amount, which is 249 hours a year facilitates the three hours of therapy a week and allows for travel. The therapy plus travel is accommodated in ZPCZ's current funding. There is insufficient evidence to show that an additional 47 hours a year would be effective or beneficial or value for money because what is required can already be met within current funding capacity, therefore I find 34(1)(c) and (d) of the NDIS Act are not satisfied.
9. As I have determined that 34(1)(c) and (d) of the NDIS Act are not established, I am not required to consider whether paragraphs 34(1)(e) to (f) of the Act are made out. The request for an additional 47 hours of capacity building supports are not a reasonable and necessary supports under s34(1) of the NDIS Act.

1. The current plan includes 12 hours per year for a paediatric dietician. ZPCZ's parents state that 12 hours a year does not provide adequate funding to allow for plan renewal assessment and reporting; collaboration with other therapy supports and allowance for feed or feeding equipment therapy needs.[41]
2. ZPCZ's mother gave evidence that ZPCZ does not attend the dietitian appointments as they clash with his speech therapy appointments. The dietitian appointments are undertaken by ZPCZ's father.[42]
3. 20 hours a year is the support sought by ZPCZ's parents and they rely on the Paediatric Dietician support letter from Ms P dated 25 June 2024 detailing the need for both the requested 20 hours paediatric dietician support and the requested supplements.[43]
4. The Agency's position is that 16 hours per year for a paediatric dietician, should replace the current funding in the plan for dietician support. I consider this to be an appropriate concession by the Agency.
5. While I note that ZPCZ doesn't personally attend the dietitian due to a speech therapy clash, it may be beneficial for the dietitian to have an opportunity throughout the year to directly observe his behaviours and interactions with food for the continued development of his effective eating strategies.
6. I am not satisfied that 20 hours per year is in relation to ZPCZ's impairments and is beneficial under s34(1)(aa)(a) and (b) of the Act. The 20 hours represents value for money, relative to both the benefits achieved and the costs of alternative supports or is effective and beneficial under ss (c) and (d) of the Act.
7. I am satisfied that 16 hours a year of dietitian support satisfies ss 34(1)(aa)-(f) of the NDIS Act.

1. ZPCZ's parents explain that the aquatic program is designed as an individual course specifically for children with disabilities. His parents state they have tried different lessons, and group settings, however ZPCZ cannot tolerate these due to the activity/noise and his poor impulse control. At the hearing ZPCZ's mother explained he has been attending the individual aquatic program for over 12 months and that swimming lessons are a battle and that he wants to cling to me all the time in the pool.
2. ZPCZ's parents contend the Transitional Rules do not exclude safety programs. It is their opinion that the aquatic program fits within item 19 and 27 of Schedule 1 as they say it is a centre based activity to support participants to access and participate in community, social, cultural, recreational activities and supports that assist a participant to take part in community, social culture and civic activities.
3. The Agency notes that in the current plan, $740.00 is included for the difference between group and individual swimming lessons. Since this plan was approved, the Transitional Rules came into effect. Due to this the Agency states the requested support is now 'not generally an NDIS support' under Schedule 2. Under these Transitional Rules, Schedule 2, item 4, support (h), states 'costs associated with recreational sports and activities, including membership costs, venue hire fees, uniforms and footwear' are generally not NDIS supports. Should I not be satisfied of this, in the alternative the Agency submits the aquatic program falls within Schedule 2, item 4 support (q) general health, fitness, social or recreational activity costs or services are generally not NDIS supports. Further to this the Agency states that funding for children's swimming lessons are considered to fall within parental responsibility for all Australians.
4. The September 2023 report of the occupational therapist Ms Vela makes the recommendation for 1:1 aquatic program funding. This report along with ZPCZ's parents evidence and the Royal Life Saving information[44] regarding water safety for autistic children, are relied upon to demonstrate ZPCZ's need for engaging with individual lessons and the background regarding the risks for autistic children with water safety.
5. The Autism Swim Australia document describes that ZPCZ is unable to participate in group settings due to his hypersensitivities to water floaties, the general noise and splashing along with there being insufficient swim instructor ratios present, with the multiple activities going on in the pool being overstimulating.[45]
6. ZPCZ's mother gave evidence that she will try to get him to spending extra time in the pool after his lesson, blowing bubbles and practicing some of his water skills, while his sister is attending her own swimming lesson. She notes this is all dependent on his emotional regulation at the time. During this time he may also jump in the water or may immerse his face with her encouragement, again, this is all highly dependent on his regulation.
7. While I accept ZPCZ is likely to benefit from the aquatic program being 1:1, with regard to s 34(1)(f) this criterion means I need to be satisfied the aquatic program is an NDIS support. The evidence before me does not positively satisfy me that the aquatic program falls under Schedule 1, item 18(c) as it undertaken for instructional value, item 19 as it is undertaken on an individual basis, or item 27 as it is does not fall within community, social, cultural and civic activities. I agree with the Agency's position that the aquatic program fees fall under Schedule 2 item 4, support (h), as 'costs associated with recreational sports and activities' and therefore are not an NDIS support.
8. As I am not satisfied of s34(1)(f) that the aquatic support requested is an NDIS Support, the aquatic program cannot be funded.

1. ZPCZ is currently prescribed Pediasure formula by his paediatric dietitian as a nutritional supplement to support his ongoing growth and development, due to food aversion resulting from his disability. He is also prescribed Benefibre by his paediatric dietitian as a nutritional supplement in order to manage constipation from his limited diet.
2. ZPCZ's parents contend that the details of his current weight and height show he is underweight and that he meets the definition of failure to thrive. Further they have requested the Agency confirm who is responsible for the supply of Home Enteral Nutrition (HEN), noting the NDIS website states that NDIS holds this responsibility. The parents have undertaken enquiries and have only received one response from the NDIS stating it is the responsibility of Enable NSW. ZPCZs parents on this point, have enquired with Enable NSW and have confirmation via email that Enable NSW supply HEN tubes and not the supplement itself, stating this is the NDIS responsibility. This email is before the Tribunal.[46]
3. ZPCZ's parents state that

Should the Respondent debate the use of supplements, we would note the new Transitional Rules state that sport and athletic supplements are not permitted. They explain that sports supplement is a compound noun and therefore its function as a single noun phrase, where the word sport modifies the noun supplement, which indicates the type of supplement it is. The term athletic supplement is an example of a compound noun formed by using adjective of athletic. The Transitional Rules use of the compound noun is deliberate and specific to 1 area of supplement therapy.[47]

1. ZPCZ parent's Statement of Facts, Issues and Contentions describes the following:

We have recorded his eating patterns, his foods he will attempt to eat, and have had a dietician develop a meal plan / assess his KJ intake to ensure he has sufficient KJ intake. The use of supplements as part of his early intervention is to ensure there are no long-term impacts to growth or cognitive skills...[ZPCZ's] disability is a neurological disorder which directly affects his cognitive ability to eat. We have trialled feeding without supplements and found his conditions worsen. A paediatric dietitian has reviewed [ZPCZ's] diet and videos of [ZPCZ] eating. She has reconfirmed the recommendation for supplement to ensure he has adequate nutritional intake. The supplement is required whilst the OT treatment and ABA Therapies continue. We always supply a range of regular foods (i.e. multiple meal options, which the majority goes to waste), of several textures / colours / shapes flavours etc to encourage [ZPCZ] to eat. However, in addition to this we also supply the supplement, which is an additional living cost that is incurred by a participant solely and directly as a result of his disability.[48]

1. I have had regard to the following paragraph from the Agency's Operational guideline: Nutrition supports including meal preparation:

To help you get the nutrition you need, you may be prescribed nutritional supplements that you eat or drink by a suitably qualified health professional. These supplements increase the amount of nutrition you get in your diet. We may be able to include funding for the prescribed nutritional supplements in your plan. The supplements need to be related to your disability.[49]

1. I have also had regard for the Support Rules_[50]_ regarding the respective responsibilities of the NDIS and health systems. It is correct to refer to these Support Rules as they remain in force. The Explanatory Statement to the Transitional Rules confirms the ongoing application of the Support Rules:

A number of items in this category are not NDIS supports because they reflect the existing division of responsibility to provide health supports set out in the Supports for Participants Rules. This includes the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; and time-limited, goal oriented services and therapies predominantly related to a person's health status, or following medical or surgical events with the aim of improving a person's functional status, for example rehabilitation following hip replacement surgery. > > Other items are not NDIS supports in accordance with intergovernmental agreements such as the Applied Tables and Principles of Supports. This reflects the existing universal obligations of governments to provide access to health supports and services for all Australians, regardless of disability. For example, mainstream health systems provide diagnostic assessments and screening services, or provision of acute, subacute, emergency and outpatient clinical services delivered through public or private hospitals. > > Health systems will remain responsible for the diagnosis, early intervention and treatment of health conditions, including ongoing or chronic health conditions. This may involve general practitioner services, medical specialist services, dental care, nursing, allied health services, preventive health care, and care in public and private hospitals.[51]

7.4 The NDIS will be responsible for supports related to a person's ongoing functional impairment and that enable the person to undertake activities of daily living, including maintenance supports delivered or supervised by clinically trained or qualified health practitioners where these are directly related to a functional impairment and integrally linked to the care and support a person requires to live in the community and participate in education and employment. > > 7.5 The NDIS will not be responsible for: > > (a) the diagnosis and clinical treatment of health conditions, including ongoing or chronic health conditions; or > > (b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or > > (c) funding time-limited, goal-oriented services and therapies: > > (i) where the predominant purpose is treatment directly related to the person's health status; or > > (ii) provided after a recent medical or surgical event, with the aim of improving the person's functional status, including rehabilitation or post-acute care; or (d) palliative care.

3. The Agency's position is that Benefibre and Pediasure are not NDIS Supports for the purposes of the Transitional Rules. In their Statement of Facts, Issues and Contentions the Agency states:

Benefibre is a fibre supplement and should be considered a health (vitamin) support under Item 12(d) of Schedule 2 of the Transitional Rules. As a result, the Tribunal should not be satisfied these supports are 'NDIS support' for the purposes of s10 of the NDIS Act and therefore do not satisfy s34(1)(f).

Regarding the Pediasure, the Respondent contends that the evidence of Dr P indicates the Applicant eats a wide variety of food and accordingly the Tribunal cannot be positively satisfied that section 34(1)(c) and section 34(1)(d) of the Act are met. Further, the Tribunal cannot be satisfied on the evidence before it that the requested supports cannot be provided by another system of delivery i.e. the public health system. There is insufficient evidence to determine whether this support has been provided by the public health system and to what extent.

1. In the 12 April 2024 letter dietitian Ms D defines Pediasure as a nutritional supplement for ZPCZ's optimal nutrition.[52] Then in her 18 March 2024 email to ZPCZ's parents she states:

[ZPCZ's] growth charts - we're aiming for him to continue tracking between 10-25th percentile band for weight, so aiming for ~14-14.5kg in the next 3-6months - You could check once a month however we do not need to monitor very closely as his growth is okay.[53]

1. The Explanatory Statement for the Transitional Rules states:

The exclusion of an item as an NDIS support does not create a commitment or obligation for other service systems to provide that support. Similarly, these lists do not create an obligation for other service systems to provide for accessibility or to make reasonable adjustments.[54]

1. Section 7 of the NDIS Supports Transitional Rules requires that until further rules are made the Tribunal must also be satisfied that the support is most appropriately funded or provided through the scheme, and not more appropriately funded or provided through other general systems of service delivery or support services. I refer to Rule7.5(b) of the Supports Rules which provide as follows:

.....................................................

(b) other activities that aim to improve the health status of Australians, including general practitioner services, medical specialist services, dental care, nursing, allied health services (including acute and post-acute services), preventive health, care in public and private hospitals and pharmaceuticals or other universal entitlements; or

1. Item 4 of Schedule 2 day-to-day living costs - lifestyle refers at subparagraph (s) to non-prescription medicines, sunscreens, weight loss products, vitamins, sports or athletic supplement, and homeopathic medicines.
2. Item 12 of Schedule 2 health refers at subparagraph (d) to pharmaceuticals (including prescription medicines and non-prescription medicines), biological medicines, vaccines, sunscreen, weight loss products, vitamins, sport and athletic supplements, and homeopathic medicines.
3. I do agree with ZPCZ's parents and Ms D that Benefibre is related to ZPCZ's disability and can be considered a health support as it relates to the functional impact of a participant's disability. On this I specifically note ZPCZ's mothers Lived Experience statement that:

Managing [ZPCZ's] extremely limited eating due to his sensory sensitivities and the resulting constipation that regularly occurs adds extra challenges to the day. The more constipated he gets, the more dysregulated he becomes, often to the point where he is too worried about his stomach concerns to concentrate on his therapy.[55]

1. Dr G Consultant General and Developmental Paediatrician in his letter dated 5 June 2024 also recommends the Pediasure and Benefibre.[56] ZPCZ's parents assert that it falls within 'Disability-related health support' for the purpose of Schedule 1, Item 16.
2. I agree with the Applicant's submission that Benefibre doesn't not fall within the Schedule 2, Item 4(s) as it would not be correct to consider Benefibre in the category 'Day-to-day living costs - lifestyle'. I do however agree with the Agency that Benefibre is excluded under Schedule 2, Item 12(d) in the 'Health category' as they are a pharmaceutical (including prescription medicines and non-prescription medicines). The specific exclusion in Schedule 2, Item 12(d) removes Benefibre from being considered a disability-related health support.
3. This is because as Senior Member French states in FSWN and National Disability Insurance Agency (NDIS) [2025] ARTA 114, whether a support is an NDIS support, is mixed question of fact and law. Senior Member French provides guidance for how to approach Schedules 1 and 2, stating the use of the following steps:

Stage 1 Ascertain if the requested support is an NDIS Support as defined. This inquiry is focused on the support, not the participant.

Step 1: Determine if the requested support is of a character that falls within the scope of a category of support specified in column 1 of the Table to Schedule 2 of the Transitional Rules by reference to the description of supports that fall within the scope of that category contained in column 2 of the Table.

If the answer to that question is "yes", then stage 1 is complete. The requested support is not a NDIS Support and cannot be approved for inclusion in a SoPS because of s 34(1)(f).

pharmaceuticals (including prescription medicines and non‑prescription medicines), biological medicines, vaccines, sunscreens, weight loss products, vitamins, sport and athletic supplements, and homeopathic medicines.[57] [Tribunal emphasis]

1. ZPCZ's parents have provided definitions to show fibre is not a vitamin, rather it is correctly classified as a carbohydrate that the human body doesn't digest and is passed through the intestinal system.[58]
2. I was taken to the definition of non-prescription medicine by the Therapeutic Goods Administration by the Agency in their closing oral submissions. I have considered this position, and I am of the view that because the Therapeutic Goods Administration classifies Benefibre a fibre supplement, under general sales medicine or registered complementary medicines, it is excluded under Schedule 2, Item 12(d) of the Transitional Rules. Therefore sections 34(1)(f) and 10 of the NDIS Act (as amended) cannot be met. Noting that items 4 and 12 of Schedule 2 exclude these types of pharmaceuticals, I find therefore it is not an NDIS support pursuant to sections 10 and 34(1)(f) of the Act.
3. As I have determined that paragraph 34(1)(f) of the Act is not established, I am not required to consider whether paragraphs 34(1)(aa) to (e) of the Act are satisfied in relation to Benefibre.
4. I find that Pediasure also falls within item 4 (s) of Schedule 2 as a vitamin or non-prescription medicine, as such it cannot fit into item Schedule 1 item 16 (a) nutrition. Overall while I agree with ZPCZ's parents' contention and Ms D recommendation that Pediasure is value for money and effective and beneficial given ZPCZ's limited dietary intake due to his disability. Pediasure cannot be funded by the NDIS as it is captured by item 4 (s) of Schedule 2, for the purposes of subsection 34(1)(f) of the Act.

1. In relation to support worker assistance ZPCZ's parents are seeking 15 hours of support per week for support at home playing in the backyard and in the community. The best starting point in assessing the need for this requested support, is to assess ZPCZ's parents' capacity to provide the usual informal supports for a child of similar age and actual capacities.
2. The evidence before the Tribunal is that overall, ZPCZ has high care needs. ZPCZ is cared for by his mother during the weekday and Saturdays, and his father assists in evenings and on Sundays when he is not at work. The Tribunal was told that ZPCZ's mother also has psychosocial diagnoses managed by medication, that is significantly impacted by her son's behaviour.
3. ZPCZ's father has limitations on his capacity to actively provide support to ZPCZ during the weekdays and Saturdays, arising due to his current employment schedule. There are no other informal supports available to the family. On the topic of ZPCZ's father juggling his parental responsibilities and work schedules the Agency and ZPCZ's mother entered into the following exchange:

The Respondent: Would you agree that part of parenting is juggling parenting and work schedules?

ZPCZ's mother: Yes...but that's the demands of his job and we need money to live. So it's either you do the demands of the job or we lose the house in the car and we've got nowhere to live.[59]

1. Section 3(3)(c)(ii) of the NDIS Act provides that in giving effect to the objects of the NDIS Act, regard is to be had to the broader context of disability reform provided for in the Carer Recognition Act 2010 (Cth). Section 3 of this Act provides that its object is to increase recognition and awareness of carers and to acknowledge the valuable contribution they make to society. Section 10 provides that this Act does not create rights or duties that are legally enforceable in judicial or other proceedings.
2. The guiding principles in s 4 of the NDIS Act include:

(a) that people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime[60]; and

(b) the role of families, carers, and other significant persons in the lives of people with disability is to be acknowledged and respected.[61]

1. The legislation also requires me to consider whether the provision of a support takes into account what is reasonable for families to provide. Already outlined above are the expectations regarding the care of a child, where it is considered typical for parents to provide substantial care and support. I must consider whether the provision of funding to have support worker assistance for supervision and support of ZPCZ in the backyard and the community, is a reasonable and necessary support for ZPCZ.
2. As a starting point the overall evidence demonstrates that such support would serve to recognise and respect of the role of his mother as his primary carer during his weekday routines and Saturdays.
3. The evidence that his parents rely on is Ms E's occupational therapist report[62], ZPCZ's mothers Doctor's Certificate[63], their Statement of Lived Experience and oral evidence at hearing.
4. In her Statement of Lived Experience dated 12 May 2024 ZPCZ's mother explains:

Trying to get the children out and about is challenging. Even though we are seeing improvements in [ZPCZ's] awareness through the limited amount of ABA hours we have been able to access, his self-regulation constantly poses safety issues, both inside and outside of the home. [ZPCZ's] needs to be kept in a regular, constant routine to help negate meltdowns and make it possible for me to get...loaded and unloaded from the car to travel out anywhere in the community on my own. [ZPCZ] is still really struggling to respond to his name and the command "STOP" and we are in constant fear of him running out onto the road. Our front door at home is constantly dead bolted for this reason.[64]

1. The relevant rules are 3.4 of the Supports Rules.

Reasonable family, carer and other support > > 3.4 In deciding whether funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide, the CEO is to consider the following matters:

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

1. The Agency notes this support worker request was provided after their filing of the Respondent's Statement of Facts, Issues and Contentions, as such they were not afforded the opportunity to provide evidence regarding their position relevant to this support. I agree that this request has come in very late from ZPCZ's parents, noting this dispute has been ongoing since 2023. Procedurally, the Agency did not object to the Tribunal's consideration of the support.
2. The relevant NDIS Guideline states:

We consider what support is reasonable to expect parents to provide at your age. It's normal for parents to provide substantial care and support for children. We consider that it's usual for parents to provide almost all the care and support that young children need.

For example, it's reasonable to expect parents or other family members to provide transport to and from their child's after-school activities. Of course, the amount of care and support for a child without a disability would typically reduce as they get older.

• if your needs are substantially greater because of your disability, compared to other children the same age. This means you need much more disability support
• any risks to the wellbeing of people providing informal support to you
• if including funding for the support will help build your skills and capacity in the future or reduce any risks to you.

For example, we consider any health, safety or other impacts resulting from what's involved in meeting your disability support needs.[65]

1. ZPCZ's mother explained that ZPCZ has no personal safety awareness, is impulsive and does not respond to his name or voice commands. She explained that he is constantly mouthing objects to self-regulate and will often put small objects in his mouth and has choked at home.
2. ZPCZ mother clarified that support worker assistance will allow ZPCZ to access and participate in the community safely with his mother and sister during the week. She described that this would assist in the development of his life skills. His mother explained that she cannot take both children outside and keep them safe, while many other families with kids the same age can safely access and participate in the community. She further explained ZPCZ's father works and is absent from the family home for over 12 hours per day, 6 days per week.
3. ZPCZ's parents contend the requested support is not akin to babysitting, rather for the direct benefit of ZPCZ to participate in the community, allowing him to explore typical life experiences and life skills that are age-appropriate. ZPCZ's parents acknowledge there is likely to be some secondary benefits to his younger sibling and his mother by having a support worker present.
4. Ms E in her report quantified that the 15 hours would be utilised as weekday afternoon support. ZPCZ's mother explained that support worker hours would likely be used both in the weekday afternoons and then on Saturdays when her husband is at work. She explained this support would be provided while she was always present with ZPCZ and his younger sibling, both at home and in the community.
5. The evidence provided by ZPCZ's mother is that she cannot undertake community activities such as grocery shopping, going to the park or having both her young children playing in the backyard when she is supervising them alone. The risk to ZPCZ in the family backyard is due to a 'steep drop off' with numerous pictures supplied to the Tribunal showing the layout.
6. ZPCZ's mother accepted in cross examination that ZPCZ can go outside or into the community when supervised by one parent, and not accompanied by his sibling. The Agency and ZPCZ's mother entered into the following exchange:

Respondent: [ZPCZ] can go outside supervised by one parent?

ZPCZ mother: Yes. If it's me, yeah, it's not easy, but yeah.

ZPCZ mother: Yeah, the backyard is fenced, but it's not fenced along the unsafe point. So there's it's fenced at the side and then fenced at the back. There's pictures with a massive set of stairs and then there's another massive set of stairs with a cliff drop off behind.

Respondent: Have you considered getting fencing for the backyard?

ZPCZ mother: It would be extremely difficult and costly to fence. It still wouldn't negate the issue of the massive set of stairs to go down to one level of the yard.[66]

1. The Agency's position is that because ZPCZ can be effectively supervised outside by one parent, any additional need for caring or supervision in the backyard or community arises not from ZPCZ's impairments, but from their backyard design and parental responsibility to care for two children at once. Further the Agency takes the position that the 15 hours a week doesn't relate to ZPCZ's impairments, rather from the stress and needs of his mother as per her medical certificate.
2. The occupational therapy report of Ms E recommends that 15 hours of support worker assistance be funded at weekday rates.[67] Ms E has undertaken the caregiver strain index to assesses ZPCZ's mother's strain as severe, and Ms E notes that there are no other informal supports to assist his mother during the time that his father attends work.[68]
3. I note that ZPCZ's father works full time during the week including Saturday, typically leaving the house at 4:00 AM and returning at 6:00 PM. The Emmett report provides brief information on ZPCZ's functional impairments, communication skills and safety awareness. The report generally details that ZPCZ has the need for support worker assistance at the 1:1 ratio for both community participation and playing in his backyard due to its steep cliff drop off.
4. The report states:

Currently, [ZPCZ's] ability to access the community is limited. It is highly challenging for [ZPCZ's mother] to manage [ZPCZ's] support needs in the community while also supervising and caring for [ZPCZ's] younger sister. This limits the frequency and variety of community places which can be accessed.[69]

1. Ms E states that 15 hours was calculated by reference to providing ZPCZ:

Access to support workers for an average of 3 hours per weekday will enable increased community access and outdoor play. This will support access to typical childhood experiences such as going to the park, the shops, playgroups and play with peers. It will also allow time for transitions which take longer for [ZPCZ] due to his challenges with emotional regulation.

1. ZPCZ's mother is the person who undertakes all daily tasks and care for ZPCZ, she transports ZPCZ and takes him to his therapies and activities. I accept she only has physical assistance in the evenings and on Sundays and is experiencing severe carer strain. I accept ZPCZ disability does result in an increased need for supervision and assistance. I am not persuaded by the Agency's position that need for support worker assistance arises from ZPCZ's mothers' needs versus his impairments. His mother explained how she envisioned the support could be used:

The Respondent Are you suggesting that the support, that [ZPCZ] would come home from preschool and then the support worker would do activities with him that afternoon?

ZPCZ's mother: The support worker would do activities with him that afternoon. Yeah. There's no reason that he couldn't be doing recreational activities after preschool. That's, you know, that's what kids do.

The Respondent: But he's he is currently able to do that with you, isn't he?

ZPCZ's mother: I play with him all the time, but we're restricted to the house.

ZPCZ's mother: So if it's puzzles or monster trucks or you know, getting out a bit of paint and mixing it up and all those sort of things, I do those things with him in the house, but we can't go outside and do anything.

The Respondent: But the inability to go outside. I would draw that the inability to go outside is because you feel like you need two people with [ZPCZ] outside. Is that correct?

ZPCZ's mother: No, the inability to go outside is because I cannot look after [ZPCZ] and my daughter at the same time outside because []ZPCZ absconds and my daughter copies his behaviours and I can't run after [ZPCZ] and leave [redacted] in an unsafe position. So I cannot have them both outside with me.

The Respondent: So it's really because you have two children, is that right?

ZPCZ's mother: It's not really because I have two children, it's because one of my children have a severe disability. If I had two children that didn't have all of these other executive functioning problems, they would be listening to instruction with no problem and there there's no issue.[70]

1. With regard to ZPCZ's backyard I find the photographs showing the steep drop-off satisfy me that this would be a safety risk for any child of similar age to ZPCZ. I consider the need for support worker assistance due to the general safety of the backyard does not meet s34(1)(e) as this is what is reasonable to expect families, carers, informal networks and the community to provide. Given that Ms E bases her 15 hour recommendation on support worker assistance in the backyard and in community, I determine that a quantum of half these hours would therefore be reasonable.
2. I do note ZPCZ engages in absconding behaviours and therefore I see this is a separate consideration that does satisfy me that the support he requires in community is beyond typical parental responsibility due to his sensory sensitivities, absconding behaviours and lack of personal safety awareness. I am not however satisfied that the level of benefit of 15 hours a week is to a degree or extent that would displace the requirement for the serious consideration of the need to ensure the financial sustainability of the scheme.
3. I have not been persuaded on the evidence before me that 15 hours a week of support worker assistance used in the way Ms E and ZPCZ's mother have generally described, fits into the weekly schedule that ZPCZ currently undertakes, noting he is currently undertaking therapy for 19 hours per week exclusive of his childcare hours. I am not satisfied that the funding for 15 hours of support worker assistance satisfies s 34(1)(c) of the NDIS Act. This support is likely to be approximately $35,000 a year and the evidence before me does not consider any comparable support that may highlight its cost effectiveness. I have not been persuaded that the amount of 15 hours a week will be effective and beneficial under s34(1)(d) of the NDIS Act.
4. Overall the evidence regarding 15 hours of support worker assistance does not satisfy s34(1)(c) of the Act in that it represents value for money. As s34(1) is cumulative I am not required to consider whether paragraphs 34(1)(aa)(a)(b)(d)(e)(f) of the Act are made out.
5. I find that a smaller quantum of half the hours of support worker assistance requested would meet the requirements of section 34(1) as a reasonable and necessary support. 7 hours represents half of the recommended 3 hours per weekday afternoon provided by Ms E. I find 7 hours per week is necessary to address ZPCZ's needs arising from an impairment in relation to which he meets the NDIS access criteria - section 34(1)(aa); will assist ZPCZ to pursue the goals in his plan about further developing his emotional regulation skills and his self-care skills - section 34(1)(a); will assist his social participation, principally through building his skills and supporting community participation activities - section 34(1)(b); represents value for money in that the associated costs are reasonable, relative to the benefits to be achieved, and there are not comparable supports that could achieve the same outcome at a substantially lower cost - section 34(1)(c) and Rule 3.1 of the Support Rules; will likely be effective and beneficial to support him to develop his skills and capacity - section 34(1)(d); takes into account what it is reasonable to expect parents to provide by way of care and support - section 34(1)(e) and Rule 3.4 of the Support Rules; and is an NDIS support for ZPCZ - section 34(1)(f) and Item 14 of Schedule 1 of the Transitional Rules - and appropriately funded under the NDIS - section 7 of the Miscellaneous Transitional Rules.
6. For the above reasons support worker assistance at a frequency of 7 hours per week should be included in ZPCZ's SOPS.

1. ZPCZ's parents explained that an 18 month plan duration is sought to ensure ZPCZ has uninterrupted access to therapy until his next important milestone, being beginning his formal schooling. Their secondary concern is to avoid any further impacts of stress due to the effect of dealing with the NDIS at plan review, noting they expect to be facing another unnecessary prolonged battle for the necessary therapy for a 12 month plan.[71]
2. Their position is that a 12 month plan places them in a position where they are likely to face another battle to secure adequate therapy support just months before ZPCZ starts primary school_._ ZPCZ's parents assert that a 12 plan month plan doesn't provide them security of knowing ZPCZ's funding all the way to the end of next year, prior to formal school starting.
3. ZPCZ's parents explained the external review process has had an immensely negative impact on their family. Further to this they touched on the influence this stress has had upon the very real possibility of relapse regarding ZPCZ's mothers' mental health.
4. The Agency's Operational Guidelines sets out that NDIS plans are approved for 12 month periods. The Agency's guidance refers to plans being 12-month periods for now and that "later there may be more variability in the length of funding periods, however funding periods can be no longer than 12 months". The guidance notes that "In the future for participants with stable support needs the implementation of funding periods allows for the creation of longer-term plans, for instance 2, 3 or 5 years".[72]
5. Section 31 of the NDIS Act sets out the principles applying to the development of a NDIS plan for a participant.

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:

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

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

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

(da) if the participant and the participant's 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. It is clear and I acknowledge on the materials before me, that this external review has been a protracted and highly emotionally charged matter. That said, on the totality of evidence I am not persuaded to depart from the Agency's policy.
2. I am satisfied that given his young age, 12 months provides the opportunity for ZPCZ's progress to be reviewed and a plan put in place to aid in his transition to school. As such I am not satisfied to make a positive finding that an 18 month plan duration meets the requirements of s 34(1) as reasonable and necessary.

1. The Tribunal sets aside the decision under review and this matter is remitted to the Agency for reconsideration with a direction that ZPCZ's Statement of Participant supports are to include the following additional supports:

(a) 7 hours weekday rate for support worker assistance for 48 weeks;

(b) 2 hours per week for supervision by a Board Certified Behaviour Analyst for 48 weeks;

(c) 12 hours per year for team meetings;

(d) 4 hours per year for NDIS plan review reports and assessments;

(e) 16 hours per year for paediatric dietician;

(f) The date by which the Respondent must reassess the plan is to be 12 months after the date on which the supports above are included in the statement of participant supports.

1. I certify that the preceding 206 (two hundred and six) paragraphs are a true copy of the reasons for the decision herein of General Member D Heron.

Advocate for the Applicant: Self-represented by parents

Counsel for the Respondent: Ms H Robinson, of Counsel

Solicitors for the Respondent: Ms A Lay of Moray & Agnew

[1] Joint Hearing Tender Bundle (JTB), T13 dated 1 March 2023 page 80.

[4] McGarrigle v National Disability Insurance Agency [2017] FCA 308.

[5] [2017] FCA 308 at 91.

[6] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 149-151.

[7] [2022] FCAFC 181 at 26.

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

[10] The name of the EIBI program has been deliberately omitted to preserve ZPCZ's confidentiality.

[11] JTB, 9, Current plan date 17 July 2024 - 17 July 2025 p524

[13] Transcript, closing submissions day two 1:56:48.

[22] 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. JTB, A82, 1430 -1519.

[27] JTB, R14, Article - Determining Associations between Intervention Amount and Outcomes for Young Autistic Children a Meta- Analysis, Dr Sandbank et al June 2024, page 965.

[28] JTB, A137, Article - Evidence That Intervention Dosage Is Associated With Better Outcomes in Autism - by Thomas W. Frazier, PhD; Lacey Chetcuti, PhD; Mirko Uljarevic, MD, PhD, page 2629 - 2630.

[29] JTB, A137, 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 Dr Sandbank, PhD; James E. Putsejovsky, PhD, page 2630.

[30] JTB, A118, CRC Guidelines, dated December 2022, page 1945 - 2096.

[49] What types of nutrition supports do we fund? | NDIS

[50] National Disability Insurance Scheme (Supports for Participants) Rules 2013.

[51] National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 - Federal Register of Legislation 33 - 34.

[54] National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 - Federal Register of Legislation

[57] Schedule 2 item 12(d) of the Transitional Rules 2024.

[65] Is the support something we would expect your informal supports to provide? | NDIS

[72] www.ourguidelines.ndis.gov.au/your-plan-menu/creating-your-plan/how-do-we-decide-who-manages-your-funding/how-long-will-your-plan-go