TKCW v National Disability Insurance Agency  AATA 501 (23 July 2014) saw the Administrative Appeals Tribunal being called upon to consider reasonable and necessary supports, in the context of a child participant aged 3 years who suffered autism spectrum disorder.
The child (TKCW) had a twin brother. The debated NDIA decision turned on whether there should be:
- Funding for a particular form of therapy for TKCW, known as The Listening Program (TLP); and
- Funding to pay for a carer for the twin brother, whilst TKCW’s mother took TKCW to speech and occupational therapy: .
Funding for The Listening Program
There was debate about the established benefits of TLP therapy, which was argued to be innovative. The discussion at  is of interest, regarding the tension between “innovative” and “current good practice”:
One of the objects of the NDIS Act is “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”: s 3(g). There may be some tension between this object and s 34(1)(d) which requires that the CEO of the NDIA (and so the Tribunal), be satisfied that a support “will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice” but, whatever innovative supports s 3(g) has in mind, they must be “of high quality”. The most that we can say at this early point in the life of the NDIS is that we are bound to be satisfied of all of the criteria in s 34(1), and innovation, of itself, cannot displace those criteria.
In ultimately upholding the NDIA refusal to fund TLP, the Tribunal commented that:
- There is insufficient information on which to say with any confidence that TLP will be, or is likely to be, effective and beneficial for TKCW having regard to current good practice:. However evidence, even if anecdotal, from a sufficient number of qualified therapists of positive outcomes in sufficient numbers of children may be enough to say that it should be regarded as current good practice: .
- It could undermine that financial sustainability to provide funding for a support whose effectiveness and benefits are largely unknown, especially where a reliable means of measuring any benefits of the support in a single case is lacking: .
The AATA concluded that TLP did not represent value for money in this case because of the lack of confidence as to the benefits likely to be achieved: .
Funding for a carer for the twin brother
At , the Tribunal observed that TKCW’s mother had been and continued to receive assistance with in-home support from Disability South Australia for tasks such as cleaning, going to the shops and hanging out washing. She and the DSA helper had arranged the helper’s hours so that the helper cared for the brother, while TKCW attended therapy appointments with his mother.
TKCW’s mother wished to reallocate that time to helping in the evening when she found things more demanding.
Ultimately upholding the NDIA decision not to provide funding for the brother’s carer, the Tribunal commented at :
One of the principles in s 4 of the NDIS Act is that the role of families, carers and other significant persons in the lives of persons with disability is to be acknowledged and respected. Section 34(1)(e) also recognises that it may be reasonable to expect families, carers, informal networks and the community to provide support.
The need for childcare for the brother was already being met by a helper provided by another organisation, so the Tribunal was not satisfied that it was a necessary support at this time: .