Chamberlin and National Disability Insurance Agency (Practice and procedure)
[2025] ARTA 582
•15 May 2025
Chamberlin and National Disability Insurance Agency (Practice and procedure) [2025] ARTA 582 (15 May 2025)
Applicant:Alexander Chamberlin
Respondent: National Disability Insurance Agency
Tribunal Number: 2024/1455
Tribunal:General Member A Colvin
Place:Brisbane
Date:15 May 2025
Decision:The Tribunal, pursuant to section 101 of the Administrative Review Tribunal Act2024, dismisses the application for review.
..........................SGD.........................................
General Member A Colvin
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Practice and procedure – dismissal application - s101 Administrative Review Tribunal Act 2024 (Cth) – whether application has no reasonable prospects of success - reasonable and necessary supports - s34 National Disability Insurance Scheme Act 2013 (Cth) – archery equipment.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
National Disability Insurance Scheme Act 2013 (Cth)
National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No 1) Act 2024 (Cth)
National Disability Insurance Scheme (Supports for Participants) Rules 2013 (Cth)
National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth)Cases
National Disability Insurance Agency v WRMF [2020] FCAFC 79
Filsell and Comcare [2009] AATA 90
Barthel and Australian National University (Compensation) [2019] AATA 548
Adams v Comcare [2025] ARTA 51
Spencer v Commonwealth of Australia [2010] HCA 28
Paraponiaris and Secretary, Department of Education [2015] AATA 895
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 60Secondary Materials
NDIS – Operational Guidelines - Reasonable and necessary supports
Statement of Reasons
BACKGROUND
Mr Alexander Chamberlin is a 38-year-old participant in the National Disability Insurance Scheme (NDIS). He has Lennox-Gastaut Syndrome, a type of epilepsy characterised by multiple seizures, and intellectual disability. As participant in the NDIS, Mr Chamberlin has a plan that includes a statement of participant supports (SOPS). Mr Chamberlin seeks to have the SOPS in that plan varied to include funding for an archery kit (archery kit). The National Disability Insurance Agency (Agency) has asked the Tribunal to dismiss Mr Chamberlin’s application for review on the basis that it has no reasonable prospects of success.
Mr Chamberlin was granted access to the NDIS in 2017 based on neurological impairments resulting from Lennox-Gastaut Syndrome.[1] On 21 April 2023 the Agency approved a plan for Mr Chamberlin that commenced on that date (current plan).[2] The SOPS in that plan do not include funding for the archery kit. Mr Chamberlin sought review of that decision and in response, in a decision dated 12 June 2023, the Agency affirmed its decision, specifically finding that there should be no increase in funding for assistive technology for the purchase of an archery kit and case.[3]
[1] Agency’s Submissions on Dismissal Application (Agency’s Submission), paragraph 31.
[2] T6.
[3] T2.
Mr Chamberlin applied to the Administrative Appeals Tribunal (AAT) on 4 March 2024.[4] From 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal, and the Tribunal has authority to continue and finalise any aspect of the review not already completed by the AAT.[5]
[4] T1.
[5] Transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
The Agency seeks dismissal of Mr Chamberlin’s application for review under subsection 100(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act). On 14 March 2025 directions were made regarding filing of material on the issue of dismissal and an interlocutory hearing took place on 22 April 2025.
Mr Chamberlin did not participate in the interlocutory hearing. His mother, Mrs Chamberlin, participated by videoconference.
The Agency provided written submissions dated 12 March 2025. Other documents before the Tribunal included the following:
i.T Documents
ii.Three documents lodged on Mr Chamberlin’s behalf on 6 June 2024:
a. Three-page ‘carer’s statement’ of Mrs Chamberlin dated 5 June 2024
b. Two-page email statement and timetable of supports from Ms K Clayton, CEO, Pinnacle, dated 4 June 2024
c. One-page statement from Mr D Devlin, dated 30 May 2024
iii.Agency’s email dated 2 July 2024 attaching targeted questions for an occupational therapist and a neurologist
iv.Letter from Mrs Chamberlin to AAT regarding response from an occupational therapist to a request to provide a report
v.Letter from Mrs Chamberlin dated 31 July 2024 indicating she will approach Mr Devlin to ascertain who could provide the requested information
vi.Agency’s emails dated 23 September 2024 and 14 October 2024
vii.A letter from Mrs Chamberlin dated 3 February 2025 and lodged on 4 February 2025
viii.Mrs Chamberlin’s two-page submission dated 13 March 2025
ix.A letter dated 25 March 2025 signed by Mrs Chamberlin and Mr Devlin, lodged on behalf of Mr Chamberlin on 25 March 2025.
THE ISSUE
The issue for determination is whether Mr Chamberlin’s application for review should be dismissed under subsection 100(1) of the ART Act, on the basis that it has no reasonable prospect of success.
MR CHAMBERLIN’S APPLICATION FOR REVIEW
Mrs Chamberlin confirmed at the interlocutory hearing that funding for the archery kit was the only item Mr Chamberlin sought in his application to the Tribunal and that he sought funding of $1060 in accordance with the quote provided with his application for review.[6] Mrs Chamberlin said that, as she understood it, that quote was for standard archery equipment, that is, archery equipment used by athletes with and without disability. After purchase, the archery kit would be modified to suit Mr Chamberlin (for example, his strength). The modifications would be carried out by Mr Devlin (Mr Chamberlin’s coach and the President of Ararat and Stawell Archers). The modifications would be done at no cost. Therefore, Mr Chamberlin did not seek funding in his plan for modifications. No other details of the archery kit or the modifications were provided beyond the information in the quote and Mr Devlin’s statements.
[6] T1E.
The NDIS Laws
The issue for determination in Mr Chamberlin’s application for review is whether funding for the archery kit is a reasonable and necessary support for Mr Chamberlin under subsection 34(1) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
Section 3 of the NDIS Act sets out the objects of the NDIS Act, while sections 4 and 5 set out general principles guiding actions under the NDIS Act. Participants’ plans are dealt with in Chapter 3 of the NDIS Act. It contains sections 17A and 31, which set out principles that specifically relate to participation in the NDIS and plans.
If a person becomes a participant, the CEO must facilitate the preparation of a plan for the participant.[7] For a plan that is an ‘old framework plan’ section 33 of the NDIS Act sets out the matters that must be included in a participant’s plan. A plan must include a statement of the participant’s goals and aspirations and it must include a SOPS, prepared with the participant and approved by the CEO. The SOPS must specify, among other things, the reasonable and necessary supports (if any) that will be funded.[8]
[7] Section 32 of the NDIS Act.
[8] Paragraph 33(2)(b) of the NDIS Act.
In deciding whether to approve SOPS in a participant’s plan, the CEO must comply with the mandatory requirements contained in subsection 33(5) of the NDIS Act. These include being ‘satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided’.
Section 34 was amended after Mr Chamberlin lodged his application for review. However, if the Tribunal varies the SOPS in Mr Chamberlin’s current plan, in doing so it must apply section 34 in its current form.[9]
[9] The amendments to section 34 of the NDIS Act apply in relation to a SOPS included in an old framework plan for a participant if the SOPS is approved or varied on or after 3 October 2024: Item 129(1), Part 3, Schedule 1 to the National Disability Insurance Scheme Amendment (Getting the NDIS Back on Track No. 1) Act 2024 (Cth).
Subsection 34(1) of the NDIS Act deals specifically with ‘reasonable and necessary supports’. The matters set out in subsection 34(1) of the NDIS Act are more than mandatory considerations. They are more in the nature of criteria that the decision‑maker must be positively satisfied about on the material.[10]
[10] National Disability Insurance Agency v WRMF [2020] FCAFC 79 at 201.
Importantly, for present purposes, paragraph 34(1)(f) of the NDIS Act requires the CEO to be satisfied that a support is ‘an NDIS support for the participant’. Section 10 of the NDIS Act defines ‘NDIS support’. Very broadly, the effect of that section is that a support is an NDIS support if it is declared by rules to be an NDIS support, provided that rules have not declared that the support is not an NDIS support, and provided that the support is not sexual services, alcohol, or illicit drugs. The National Disability Insurance Scheme (Getting the NDIS Back on Track No. 1) (NDIS Supports) Transitional Rules 2024 (Cth) ( NDIS Supports Transitional Rules) declare certain items to be NDIS supports and certain items to not be NDIS supports.
Item 7 of Schedule 1 of the NDIS Supports Transitional Rules recognises that assistive products used in sports and recreational activities are NDIS supports, capable of being included in the SOPS in an NDIS plan. This includes ‘personal recreation equipment modification and sporting equipment modification’.
However, the Agency contends that funding for the archery kit is precluded because, in essence, it is standard recreational equipment falling within Item 4(g) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules, which provides that the following support is not an ‘NDIS support’:
Day-to-day living costs – lifestyle The following:
….
(g) standard recreational equipment and tools, including toys, balls and racquets;
The Agency also issues Operational Guidelines, published on its website. Although the Tribunal is not bound to follow those Operational Guidelines, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.[11] Operational Guidelines considered in the present matter include the NDIS – Operational Guidelines - Reasonable and necessary supports.[12]
[11] Re Drake v Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.
[12] Webpage: ourguidelines.ndis.gov.au.
Status of Mr Chamberlin’s application for review
Mr Chamberlin’s application for review was lodged more than a year ago. In October 2024, significant amendments were made to relevant NDIS laws and, in January 2025, the Agency indicated its intention to seek dismissal of Mr Chamberlin’s application under section 101 of the ART Act.
The material currently before the Tribunal includes statements from Mrs Chamberlin, together with reports from an occupational therapist (Ms Brampton), a counsellor at Grampians Community Health (Mr Ross), and Mr Chamberlin’s GP (Dr Ezeobi), each of whom has described the benefit Mr Chamberlin derives from engaging in archery. There is also an email from Ms Clayton setting out Mr Chamberlin’s schedule and supports. However, none of these documents contains information that assists in determining whether the archery kit is ‘standard recreational equipment’.
The material relevant to determining whether the archery kit is ‘standard recreational equipment’ is contained in a quote for the archery kit, together with the two documents signed by Mr Devlin.
Mr Devlin provided a letter dated 30 May 2024 stating:
·The archery kit is disability modified. Alex trials to date prove suitability. I modify equipment to suit each general member and take special care with any disabled member. (sic)
Mr Devlin also signed a document dated 22 March 2025 stating:
Yes, I have modified the archery kit especially for Alexander Chamberlin. Without modification to the standard archery kit. Alexander could not participate in the sport. To accommodate Alexander's disability, I have made the following modifications to the following parts of the archery kit especially for Alexander.
Modifications made to the standard archery kit made directly because of Alexander Chamberlin’s Epilepsy/Seizure and related fine motor and gross motor disabilities.
·Bow is modified for Alexander's gross motor limits to his gait and stance.
·Arrows have been modified to suit Alexander's weight and strength
·Release aid is modified to suit Alexander's fine motor limits to his finger grip
·Case has been modified to assist Alexander's inability to read and write (intellectual disability)
·Should Alexander no longer require the archery kit the modifications can be reversed. (sic)
By the time of the interlocutory hearing, Mrs Chamberlin was not awaiting, nor trying to obtain, further evidence on Mr Chamberlin’s behalf. She anticipated lodging no further material should the matter proceed to a final hearing.
Mrs Chamberlin explained that she had asked Mr Chamberlin’s neurologist three times to provide responses to targeted questions (provided by the Agency in July 2024) but had received no response. The last request had been in November 2024 and she therefore did not anticipate receiving a response and was not pursuing this further. An occupational therapist had also declined to undertake an assessment and respond to targeted questions. Mrs Chamberlin anticipated she would not be able to find an occupational therapist willing to undertake an assessment onsite at the gun club. She was therefore no longer pursuing that avenue.
Mr Devlin’s statements and the quote provide a description of the archery kit and modifications, though not a comprehensive description. Correspondence between the parties, forwarded to the Tribunal, indicates that it took some persistence by Mrs Chamberlin to obtain this level of information. Mr Devlin would be available to provide oral evidence at a final hearing if required.
THE TRIBUNAL’S POWER TO DISMISS
The objectives in section 9 of the ART Act require the Tribunal to provide an independent mechanism of review that is fair and just, and that ensures that applications are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits. In this context, subsection 100(1) of the ART Act states:
The Tribunal may, at any time, dismiss an application made to the Tribunal if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospects of success; or
(c)is otherwise an abusive process of the Tribunal.
The power to dismiss under subsection 100(1) of the ART Act is a discretionary power. It should be used cautiously since it denies an applicant the opportunity to obtain independent merits review of a decision. However, if proceedings have no reasonable prospect of success, those proceedings should be dismissed because it would be futile for the proceedings to continue, and inappropriate to use the time and resources of the Tribunal, and to put a respondent to the expense that would be involved, if the matter proceeded to a hearing.[13]
[13]Filsell and Comcare [2009] AATA 90 (Filsell) at [35]; Barthel and Australian National University (Compensation) [2019] AATA 548 (Barthel) at 36; Adams v Comcare [2025] ARTA 51.
The test in subsection 100(1) of the ART Act is whether the application falls below the threshold for a reasonable prospect of success.[14] No paraphrase, such as ‘frivolous’ or ‘groundless’, sufficiently explains the operation of the expression ‘no reasonable prospect’.[15]
[14] Barthel at 37.
[15] Spencer v Commonwealth of Australia [2010] HCA 28 at [56]-[60].
In exercising the discretion in subsection 100(1) of the ART regard should be had to the extent to which an applicant’s case is readily ascertainable. When an applicant is not legally represented or the parties are not yet in a position (or not obliged) to submit all relevant evidence and submissions, the basis of the application may not be readily ascertainable, underlying the need for the Tribunal to proceed cautiously.[16] Moreover, the Tribunal should not confine itself to considering an applicant’s case as articulated by an applicant.[17]
[16] Filsell at 33.
[17] Paraponiaris and Secretary, Department of Education [2015] AATA 895.
SUBMISSIONS ON DISMISSAL
The Agency provided written and oral submissions. It contended that:
· the application for review is not at an early stage;
· there is nothing in the material filed on behalf of Mr Chamberlin that suggests that he has not submitted, or is not in a position to submit, all of the evidence (in particular the medical evidence) upon which he proposes to rely;
· the requirements in subsection 34(1) of the NDIS Act are not met, including the requirement that the requested support must be an ‘NDIS support’ because there is no evidence to indicate the archery kit is disability specific, noting that any modifications would be minimal, capable of being reversed, and provided at no cost.
Mrs Chamberlin opposed the application for dismissal. She emphasised that the application for funding for the archery kit was made ‘in good faith’, as something that she considered to be a reasonable item for the NDIS to fund. She said that her son had a ‘good plan’ and that he did not utilise all of it. She said that he could not afford to purchase archery equipment because he was on a pension, and instead had been borrowing archery equipment. She contended that archery had made a tremendous difference to his life, and that archery improved his skills in various ways and aligned with goals in his current NDIS plan.
CONSIDERATION
In essence, Mr Chamberlin’s case, as articulated by Mrs Chamberlin on his behalf, is that Mr Chamberlin engages in archery at a local sporting club, that the archery kit is archery equipment purchased for use in sport by people with and without disability, and that the archery kit will be modified after purchase. The modifications will be done at no cost and in a way that can be reversed.
Importantly, no express assertion is made on Mr Chamberlin’s behalf that the archery kit is not ‘standard recreational equipment’ or that Item 4(g) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules does not apply. No assertion is made, for example, that the archery kit is not ‘recreational’ equipment. Nor is any assertion made that the archery kit is not ‘standard’, whether because the evidence establishes that it is an item used only by athletes with disability, or because the Tribunal should adopt a particular construction of the phrase ‘standard recreational equipment’.
Mr Chamberlin has an intellectual disability and is not legally represented. In addition, neither the Tribunal’s practice directions, nor any specific directions in this matter, have directed that he must file all material he intends to rely on at the final hearing. However, Mr Chamberlin has had more than a year to put forward information in support of his application, and Mrs Chamberlin confirmed that no further material would be lodged on Mr Chamberlin’s behalf.
The relevant legislation that applies in the present matter is clear. If the archery kit is ‘standard recreational equipment’, it is not an NDIS support (by virtue of Item 4(g) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules) and cannot be funded in the SOPS in Mr Chamberlin’s NDIS plan.
Taking the current material at its highest, there is nothing in Mr Devlin’s statements, or the quote, that raises the possibility that the archery kit that Mr Chamberlin seeks to have funded in the SOPS in his plan is not ‘standard recreational equipment’. In fact, the current material indicates the opposite. Mr Devlin, for example, describes the archery kit as ‘standard’ in his statement dated 22 March 2025, and describes the modifications he would make to that standard equipment.
Mrs Chamberlin described difficulties in obtaining some evidence but even if the Tribunal compelled evidence or records[18] from Mr Chamberlin’s neurologist, that material would not advance Mr Chamberlin’s case regarding the application of Item 4(g) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules. Nor would evidence from an occupational therapist or oral evidence from Mr Devlin, unless that evidence was to the effect that the archery kit is something other than ‘standard recreational equipment’. That is not asserted on Mr Chamberlin’s behalf and there is nothing in the material that has been lodged that raises that possibility.
[18] Under section 74 of the ART Act.
I am therefore satisfied that, if this matter proceeds to hearing in the ordinary way, the application has no reasonable prospects of success. The Agency’s decision would be affirmed on the basis that the archery kit is not a reasonable and necessary support pursuant to subsection 34(1) of the NDIS Act, by virtue of Item 4(g) of Clause 1, Schedule 2 of the NDIS Supports Transitional Rules.
As set out earlier, modifications to personal recreation equipment may constitute an NDIS support, capable of being funded in an NDIS plan. However, modifications in the present case would be undertaken at no cost, and so no funding is sought (or could be included) in the SOPS in Mr Chamberlin’s plan for modifications.
I acknowledge Mrs Chamberlin’s evidence (supported by others) on the very positive impact that archery has had on her son. However, given the resources and delay involved in proceeding to hearing in the ordinary course, it is appropriate to exercise the discretion in subsection 101(1) of the Act to dismiss the application for review.
DECISION
The Tribunal, pursuant to section 101 of the Administrative Review Tribunal Act 2024, dismisses the application for review.
I certify that the preceding forty-two paragraphs are a true copy of the reasons for the decision herein of General Member A Colvin.
.....................SGD.............................
General Member A Colvin
15 May 2025
Date of hearing: 22 April 2025
Applicant: Mr Chamberlin
Solicitor for the Respondent: Ms Jayaweera, Sparke Helmore Lawyers
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