XXWC v National Disability Insurance Agency [2020] AATA 923 – May 2020
XXWC is a three-year-old boy who was diagnosed with Autism Spectrum Disorder when he was 18 months old. His first NDIS plan provided $39,196.62 for the provision of early childhood intervention supports and a further $5,129 for core supports to assist with undertaking daily living activities. His parents sought review of the decision to request that early childhood intervention be provided for at least 20 hours per week.
The Tribunal considered two different types of early intensive behavioural intervention for autism. These are Applied Behaviour Analysis (ABA), which is a field of behaviour intervention that uses the science of learning and behaviour, and the Early Start Denver Model (ESDM), which is a multidisciplinary form of early intensive behavioural intervention that adopts some principles from ABA.
Another issue was whether the NDIA could be ordered to reimburse the parents for amounts they had spent for their child’s therapy in excess of the plan while the plan was under review.
XXWC’s parents provided a report of Dr Elizabeth Briggs and Ms Margaret-Ann Brennan of the Best Start Clinic, who are XXWC’s ESDM therapists. The NDIA provided a report of Dr Jose Molina-Toleda of Irabina, an ABA provider, who had assessed but not treated XXWC.
Both reports recommended that XXWC receive early intensive behaviour intervention. But the reports differed on how early intensive behavioural intervention should be provided; the Best Start report recommended that he receive ESDM, while the Irabina report recommended that he receive ABA.
Ultimately, the Tribunal determined that ESDM was the reasonable and necessary support for XXWC because he had already been in an ESDM program for a year and had benefited greatly from it. Both experts agreed that stability and consistency are important in the treatment of autism. The Tribunal’s decision suggests that had XXWC not had therapy previously, it would have found ABA to be the reasonable and necessary support, because it was significantly less expensive than ESDM.
The decision provides a degree of validation for ESDM as a form of early intensive behavioural intervention. Parents of children with autism will hopefully take comfort from the fact that parental choice continues to be a relevant, but not decisive, factor for the Tribunal.
Finally, the decision of the Tribunal that it did not have jurisdiction to require the NDIA to reimburse the parents is legally correct and consistent with previous decisions of the Tribunal in that area. However, it is problematic that XXWC’s parents had to spend such large amounts of money out of their own pockets in order to ensure that their child continued to get the treatment that the NDIA ultimately agreed he needed. Parliament should consider amending the NDIS Act to make provision for reimbursement in those circumstances.
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