Tribunal: Member P Smith
Primary Government decision
The Applicant requested an increase in funding to their Capacity Building Supports budget in their statement of participant’s supports (SOPS). However, the National Disability Insurance Agency (NDIA) was not satisfied that the Applicant’s request for a funding increase was reasonable and necessary as required by section 34 of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
This Tribunal set aside the decision under review and remitted the matter to the CEO of the NDIA, with the direction to include in the Applicant’s plan over 12 months, 30 hours each for Occupational Therapy, Speech Pathology Therapy and Applied Behavioural Analysis Therapy, and provider travel for each of the therapies.
The Applicant GDDC is a 9-year-old diagnosed with Autism Spectrum Disorder (ASD). GDDC participates in the NDIS and receives funding for supports for ASD.
A delegate of the CEO of the NDIA approved a SOPS in the Applicant’s NDIS plan on 19 November 2020 for 12 months. The Applicant sought an internal review of that decision seeking an increase in funding to their Capacity Building Supports Budget.
The reviewer was not satisfied that the Applicant’s requested increase in funding was reasonable and necessary but varied the SOPS to increase funding to include 82 hours of therapies and 12 hours of funded support coordination.
The Applicant’s father (Mr GDDC) applied to the Tribunal on behalf of GDDC seeking a review of the decision that decision. Before the Tribunal, Mr GDDC sought further increased funding for Occupational therapy, Speech Pathology Therapy and Applied Behavioural Analysis Therapy.
He claimed these therapies had significantly improved his child’s learning and cognition, communication skills, daily living, and social skills. An increase in funding would ensure further development and lead to better outcomes for the Applicant, including behavioural improvements. Mr GDDC relied on reports prepared by the Applicant’s allied health professionals to support his claims.
The NDIA argued Mr GDDC’s request should be refused as the increase requested was not reasonable and necessary as required by section 34(1) of the NDIS Act. In addition, the NDIA stated that the requested supports do not meet several requirements of section 34 of the NDIS Act, in that they do represent value for money (section 34(1)(c)), are not likely to be effective and beneficial to the Applicant (section 34(1)(d)), and do not take into account what could be reasonably expected from families, carers, networks and community to provide to the Applicant (section 34(1)(e)).
The NDIA submitted that fewer additional supports would be reasonable and necessary. The NDIA relied on the expert opinion of Associate Professor M in support of its argument.
The Tribunal had to determine whether the requested supports were reasonable and necessary for the purpose of section 34 of the NDIS Act.
Application of law
To be considered reasonable and necessary, each support must meet the following criteria under section 34(1), namely:
a) assist the participant to pursue their goals, objectives, and aspirations;
b) assist them to undertake activities that facilitate their social and economic participation;
c) represents value for money in that the costs of the supports are reasonable, relative to both the benefits achieved and the cost of alternative support;
d) be effective and beneficial, having regard to current good practice;
e) takes account of what is reasonable to expect families, carers, informal networks, and community to provide; and
f) be most appropriately funded or provided through the NDIS and not more appropriately funded or provided through other general support services.
Summary of reasons for decision
The Tribunal noted the various allied healthcare professional reports documented difficulties and inconsistencies as to how to address the Applicant’s complex learning and behavioural needs. In addition, the Tribunal noted the lack of cohesion and continuity in the reports regarding the intensity and number of hours of therapies the Applicant should receive and had not considered alternative forms of therapy.
The Tribunal accepted that some of the therapy the Applicant had received had been beneficial, but having regard to the opinion of Associate Professor M and Mr GDDC’s own oral evidence, the progress to date could not be described as substantial.
The Tribunal further found that both Mr GDDC and his wife are willing and able to provide in-home therapies to GDDC and that this had a beneficial effect on the Applicant’s behaviours and development.
The Tribunal was not satisfied that the requested supports met the requirements of section 34(1)(c), (d) and (e) of the NDIS Act.
The Tribunal set aside the decision under review and remitted the matter to the Respondent to include 90 hours of additional therapy and travel allowance over 12 months.
Read the full decision on AustLII
Glossary and other notes
Capacity Building Supports: Capacity Building Supports help build your independence and skills to help you pursue your goals. Unlike your Core Supports budget, your Capacity Building Supports budget cannot be moved from one support category to another (source: NDIS website).
Remit: If the Tribunal remits a matter, it sends the matter back to the original decision-maker to be reconsidered in accordance with any directions or recommendations of the Tribunal.
Set aside: If the AAT sets aside a decision, the Tribunal agrees or partially agrees the original decision was wrong. As a result, the original decision no longer stands. The AAT may make a new decision or remit the matter to the original decision-maker.
Statement of Participant Supports (SOPS): The statement of participant supports specifies, amongst other matters, the general supports (if any) that will be provided, and the reasonable and necessary supports (if any) that will be funded under the NDIS (section 33(2)).
Every case before the AAT is determined on its individual facts. These summaries may not include all information considered by the AAT and do not constitute legal advice. You should read the full decision to ensure you understand the basis of our decision.